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

8 April 2014Santa Cruz de la Sierra, Bolivia

About the UN Global CompactUnited 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 RightsEndorsed by the UN Human Rights Council in June 2011

United Nations Protect, Respect, Remedy Framework:State Duty to Protect Human RightsCorporate Responsibility to Respect Human RightsAccess to Remedy

Global Compacts human rights and labour principlesRelationship 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).

Substantive Rights:

Self-DeterminationCollective RightsRights to lands, territories and resourcesEconomic, social and cultural rightsEquality and Non-discrimination

Rights of Indigenous Peoples Procedural Rights:ConsultationFree Prior and Informed Consent (see also Good Practice Note)

Peaceful, sustainable development

LegalMeet international legal obligations

Operational RiskRisk of work being stopped

Why seek to obtain Free Prior and Informed Consent?

International LawUN Declaration on the Rights of Indigenous People

ILO Convention 169

Regional JurisprudenceThe 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 - ExamplesLawsBolivia National Law 3760The Philippine Indigenous Peoples Rights Act 1997Aotearoa-New ZealandsTe Ture Whenua Maori Act 1993

JurisprudenceConstitutional Court of ColombiaSupreme Court of CanadaDelgamuukw 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 - ExampleThe 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 expectationsLenders: International Finance CorporationEquator BanksEuropean Bank of Reconstruction and Development and the Inter-American Development Bank Industry Standards: International Council on Mining and MetalsRoundtable on Sustainable Palm OilForest Stewardship Council, etc.

What: Clarification of TerminologyConsultationundertaken, in good faith and in a form appropriate to the circumstancesConsultation and participation are crucial components of a consent processMost 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 vetoIndigenous peoples should specify which representative institutions are entitled to express consent on behalf of the affected peoples or communities.

HowFree no coercion, intimidation or manipulation. Role of securityPriorBefore authorization or commencement of activitiesBefore significant impacts? (IACHR)Informed Positive and negative impactsAppropriate medium Consider jointly developing indicators or carrying out joint assessmentsConsentAgree on a processFollow the process and document every step

ObjectivesIncrease understanding among business of the rights of indigenous peoplesProvide 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 FrameworkPart 2: UN Declaration Rights is structured around the rights in the UN Declaration to reaffirm and promote understanding of this instrument

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

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.orgPractical Supplement to UN DRIP Business Guide

Exposure Draft of Business Guide to UN DRIP released10 Dec 2012End of Public Comment period17 Oct 2013Expert Group call to review final revisionConsultation webinars27 Feb 9 April30 April 17 AprilUN DRIP Guide Consultation Process 2012-2013Revision Draft shared all who submitted comments during the public period6 SeptConsultation Meeting at PFII (NYC)23 May3-4 Dec 2013 Launch of Business Reference Guide to UN DRIPUN Human Rights and Business Forum (Geneva)Consultation draft of Guide shared with thousands of people around the globe for public comment, including targeted outreach to Global Compact business participants, Local Networks, UN partners, indigenous peoples, and other experts.

UN DRIP Guide: Consultation Process 2012-2013

Thank You

Michelle LauEmail: lau@unglobalcompact.org

Global Compact Website on Rights of Indigenous Peoples: http://www.unglobalcompact.org/Issues/human_rights/indigenous_peoples_rights.html

*Welcome Everyone. Thank you very much for joining us today for the Global Compact webinar on Business and Indigenous Peoples Rights Emerging Trends, New Tools and Resources.

-Guiding Principles provide a global standard of expected conduct for all business enterprises, wherever they operate-Endorsed by the UN HRC in June 2011Consist of three pillars:State Duty to Protect Human RightsCorporate Responsibility to Respect Human Rights this is our focusAccess to Remedy

*-Guiding Principles provide a global standard of expected conduct for all business enterprises, wherever they operate-Endorsed by the UN HRC in June 2011Consist of three pillars:State Duty to Protect Human RightsCorporate Responsibility to Respect Human Rights this is our focusAccess to Remedy

*-Corporate respect and support for human rights is the UN Global Compact's first principle. A note co-published with the Office of the High Commissioner for Human Rights available on the UN Global Compacts website ( http://www.unglobalcompact.org/docs/issues_doc/human_rights/Resources/GPs_GC%20note.pdf) explains the complementarity of the Guiding Principles and the UN Global Compact. Its key message is that the corporate responsibility to respect human rights found in the Guiding Principles is the same corporate responsibility to respect human rights in the UN Global Compact. -In line with the UN General Assembly and UN Secretary-General's recognition of the positive role that business can play to help drive sustainable development, the UN Global Compact reinforces this minimum requirement, while also going beyond the Guiding Principles in encouraging business to explore opportunities to take additional voluntary actions whether core business, strategic social investment and philanthropy, public policy engagement and advocacy or partnership and other forms of collective action to also contribute to social development. This support for human rights is as a voluntary complement and not substitute or trade off for the requirement of respect for human rights elaborated in the Guiding Principles, which applies to all businesses whether or not they are in the UN Global Compact.

**You might be wondering who are indigenous peoples? In fact, there is no universal authoritative definition, but there are criteria that help to define indigenous peoples. The main one is the criterion of self-identification.

Some additional characteristics may include: Historical continuity with pre-invasion societies;Distinctiveness;Non-dominance; andA determination to preserve, develop and transmit to future generations their ancestral territories and identity as peoples in accordance with their own cultural patterns and institutions.So those are some examples of common characteristics, but you can find greater elaboration in the Guide.

Now Id like to talk briefly about some of the key substantive rights of indigenous peoples: Self-Determination-underpins and complements the implementation of other rights. It is closely related to political rights and the right to participate in decision-making in matters that would affect their rights, including the right to FPIC, which youll hear more about from Amy later

Collective RightsIndigenous peoples rights are, by definition, collective rights. The international community clearly affirms that indigenous peoples require recognition of their collective rights as peoples to enable them to enjoy human rights.

For many indigenous peoples their relation to their lands territories and resources is a defining feature. Articles 26-27 of the Declaration acknowledges indigenous peoples rights to lands, territories and resources including to those traditionally held by them but now controlled by others as a matter of fact and also of law.

Economic, social and cultural rightsOften indigenous peoples cultural distinctiveness is considered to be one of their defining features. Giving expression to the right to cultural equality, the Declaration contains numerous provisions to protect against discriminatory and adverse treatment on cultural grounds as well as positive measures to support indigenous peoples cultures.

Equality and Non-discriminationEquality and Non-discrimination are significant objectives of, and underpin, the Declaration.

*The Global Compact launched the Business Reference Guide to the UN DRIP at the Business and Human Rights Forum in Geneva in December 2013.

The Consultation draft of the Business Guide was shared with thousands of people around the globe for public comment, including targeted outreach to Global Compact business participants, Local Networks, UN partners, indigenous peoples, and other experts. We received hundreds of comments and convened an Expert Group to help us finalize the Guide.

The objectives of the Guide are: -Increase understanding among business of the rights of indigenous peoples-Provide practical guidance for business to respect and support indigenous peoples rights, including examples.

Additionally, as you may know that the Guiding Principles on Business and Human Rights requires companies to respect human rights that is to avoid causing or contributing to adverse human rights impacts and providing remedy where they occur. In addition to doing no harm the GC also encourages business to take additional voluntary action to support human rights, and suggested support actions are also included in the Guide.

In terms of the structure and format, the Guiding Principles or Protect Respect Remedy Framework provides a basis for the Part 1 of the Guide, in addition to key principles that underpin engagement with indigenous peoples like consultation and FPIC.

Part II of the Guide is structured around the rights in the UN Declaration to reaffirm and promote understanding of this instrument

*We currently have 18 cases in this supplement, and will be accepting case studies periodically on an ongoing basis.*Exposure Draft of UNDRIP Business Reference Guide

English, French, Russian and Spanish drafts are available on GC website: http://www.unglobalcompact.org/Issues/human_rights/indigenous_peoples_rights.html

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