The Indigenous World 2024: Business and Indigenous Peoples' Rights

Written on 25 March 2024. Posted in Business and Indigenous Peoples’ Rights

The UN Human Rights Council established the Forum on Business and Human Rights^[1] in 2011 to serve as a global platform to “discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights”.^[2] The Forum is led and chaired by the Working Group on Business and Human Rights.^[3]

This Forum is the world's largest annual meeting on business and human rights with more than 1,500 participants, including representatives from governments, business, civil society organizations, Indigenous Peoples' organizations, UN agencies, national human rights institutions, academic institutions, etc.

The Forum provides a unique opportunity to network, exchange experiences and learn from the many initiatives aimed at promoting respect for human rights on the part of businesses. 

This article is part of the 38^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of an Indigenous man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 in full here

12^th session of the Forum on Business and Human Rights

This session took place at the United Nations headquarters in Palais des Nations in Geneva, Switzerland, from 27-29 November 2023.

The theme of the session was “Towards Effective Change in Implementing Obligations, Responsibilities and Remedies”. The idea was to discuss the concrete changes that have occurred in the implementation of the UN Guiding Principles on Business and Human Rights in the last 12 years. The different panels looked into actions taken by States and businesses and discussed the extent to which judicial and non-judicial remedies are available for different rights holders, including Indigenous Peoples.

Opening session: the statement of the Global Indigenous Peoples' Caucus^[4]

Representatives of Indigenous Peoples from the different sociocultural regions of the world came together as a Global Caucus for the Business and Human Rights Forum. In relation to this year's theme, “Towards Effective Change in the Implementation of Obligations, Responsibilities, and Reparations”, they discussed the urgency of advancing various priorities and outlined their positions in a statement.

Indigenous Peoples continue to suffer disproportionately from the impacts of business operations on their rights and wellbeing. Efforts to address these must place human rights at the centre, with special emphasis on the explicit recognition of Indigenous Peoples as a distinct group with collective rights, including their right to self-determination, rights over lands, territories, and resources, and the right to free, prior and informed consent (FPIC). The continuing lack of legal recognition of Indigenous Peoples in many States in Africa and Asia is a key factor in the worsening cases of land grabbing, exploitation, and extraction of their resources for business purposes resulting in rights violations and criminalization with impunity.

Indigenous Peoples underscored their serious concerns at the continuing business-as-usual approach to meeting the growing demand for transition minerals. More than 50% are found in or near Indigenous territories. The extraction of these minerals is being imposed on Indigenous Peoples without their meaningful participation or FPIC, resulting in conflicts, attacks on Indigenous, human rights, land and environment defenders, and further marginalization and denial of justice. These acts are against the three principles of the UN Guiding Principles (UNGP) on Business and Human Rights and will only exacerbate social justice, discrimination and inequity against Indigenous Peoples.

Indigenous Peoples also continue to face the imposition of renewable energy development in their territories, such as solar and wind farms, large hydro-dams, and geothermal stations. The decisions of the Supreme Courts of Kenya and Norway pointing to the violations of Indigenous Peoples’ rights in the imposition of wind farms near affected Indigenous communities should serve as a wakeup call. However, actions by States and corporations to implement the decisions of the Supreme Courts are still pending after several years, which only demonstrates their continuing discriminatory attitude toward Indigenous Peoples, the lack of effective mechanisms for reparations, and the complete disregard for rights and rule of law when it concerns Indigenous Peoples.

Indigenous Peoples support the need for a just transition from fossil fuels but this must be undertaken with their full and effective participation in the context of respect, recognition and protection of their rights, consistent with the UNGP and other international human rights instruments, including the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Indigenous Peoples have good practices that could be replicated and supported by States and investors. For instance, Indigenous Peoples in Canada, the United States, Australia, and New Zealand have developed their own renewable energy projects, a result of their self-determined decisions. These good practices could also address the huge gap in access to renewable energy on the part of millions of Indigenous Peoples.

Furthermore, the way some industries and companies conduct their activities in or near Indigenous territories must be redefined. Indigenous Peoples have seen numerous examples of greenwashing, whereby industrial associations and companies adopt policies that respect the UNGP and the human rights of Indigenous Peoples but fail to comply with them in practice. This involves industries ranging from mining and metals to oil and gas, from agribusiness to renewable energies. Indigenous Peoples’ rights must be protected and respected in both domestic and extraterritorial business activities.

The role of investors and financial institutions is crucial. Indigenous Peoples are deeply concerned about certain financial institutions using different tactics to conceal their investments in businesses. Investing in or financing activities that violate Indigenous Peoples’ rights, such as hydroelectric dams or other projects that displace Indigenous Peoples from their territories, is reprehensible and condemnable.

Indigenous Peoples urged that an end be put to the growing violence against them and their defenders. Despite representing approximately 6% of the global population, Indigenous Peoples disproportionately face the effects of killings, criminalization, and violence. In cases such as Mexico, over 40% of human rights defenders murdered are Indigenous. Indigenous leaders are selectively and systematically murdered for speaking out against the extractive companies.

Additionally, defenders, like Indigenous Peoples themselves, face violence, intimidation, persecution, strategic lawsuits against public participation (SLAPPs), and displacement. There is an urgent call for companies to apply the UNGP to ensure their activities do not impact negatively on Indigenous Peoples' rights and ways of life, including those in first contact and voluntary isolation. They must also consider the intersectionality that Indigenous women, persons with disabilities, and youth face. Indigenous Peoples called on States to ratify the Escazú Agreement and to develop similar binding instruments in different regions worldwide. Defenders must be protected, and Indigenous Peoples’ basic rights to access information affirmed. Moreover, in the context of the legally binding agreement discussions, Indigenous Peoples called for the obligations to apply to all businesses with domestic and extraterritorial operations.

Finally, the Global Indigenous Peoples’ Caucus stated that it wants to engage with States, corporations and investors in advancing the UNGP in order to make the urgent changes necessary for their rights to be fully respected, recognized and protected in business endeavours and to advance social equity and sustainable development for all.

Official session on Upholding the Rights of Indigenous Peoples in the Green Economy^[5]​

An official session was co-organized by the Working Group on Business and Human Rights and the Indigenous Peoples Caucus of the UN Forum on Business and Human Rights on 29 November 2023. The session presented the rights of Indigenous Peoples in the context of the green economy. Speakers exchanged views on current practices and challenges and explored possible solutions, such as equitable models of renewable energy development in partnership with Indigenous Peoples, and effective engagement approaches for meaningful dialogue. Speakers included, among others, Ms Pichamon Yeophantong, Member of the UN Working Group on Business and Human Rights, Mr. Francisco Calí Tzay, UN Special Rapporteur on the rights of Indigenous Peoples, Mr. Dmitry Berezhkov Indigenous representative from Russia, and Ms Adaluz Garcia Pedro, Maya Indigenous representative.

Closing of the session: the final statement of the Global Indigenous Peoples' Caucus^[6]

Over the three days of the forum, Indigenous Peoples, who came together as a Global Caucus, made meaningful contributions to the different sessions, underscoring the urgent issues they face and putting forward their concrete recommendations in relation to the theme.

They reiterated that, as of the present day, Indigenous Peoples continue to suffer the impacts of business operations on their collective rights, including their right to self-determination, rights over lands, territories, and resources, and the right to FPIC. The continued lack of legal recognition of Indigenous Peoples in many States, land grabbing and resource extraction for business purposes, the business-as-usual approach, greenwashing, the lack of full and effective participation of Indigenous Peoples in policy development and decision-making, repressive laws and the growing violence against Indigenous Peoples and their defenders are all inconsistent with the UNGP and international human rights instruments, including the UNDRIP. This situation must be reversed in order to truly implement the UNGP, recognize Indigenous Peoples’ rights and respect human rights.

Indigenous Peoples noted that they engage States, corporations and investors in their territories, respective countries and through international processes and other mechanisms available. They inform stakeholders of the issues and solutions based on lessons they have drawn from their experiences, knowledge systems and practices, and ways of life. They also develop and promote good practices such as on renewable energy development and climate adaptation and mitigation solutions.

To address the urgent issues faced by Indigenous Peoples, they urged States, corporations and investors to act immediately and heed the recommendations made by Indigenous Peoples, including the following:

• For States and businesses to truly recognize Indigenous Peoples’ rights as enshrined in the UNDRIP. State laws and policies that violate Indigenous Peoples’ rights and human rights, including legislation that favours corporations, should be repealed. On the issue of free, prior and informed consent, a “No” means “No” consent, which means a complete withdrawal of corporations and business operations. All business operations should fully implement FPIC and FPIC violations should not be tolerated.
• For States and businesses to ensure the protection of Indigenous Peoples and defenders from the criminalization of Indigenous Peoples’ resistance to corporate projects, including tagging Indigenous Peoples’ struggles as acts of terrorism as in the case of the Cordillera Peoples Alliance in the Philippines, extrajudicial killings and various forms of human rights violations, and State reprisals, with impunity. Corporations should uphold human rights and not invest in countries that are notorious in violating Indigenous Peoples’ rights and human rights.
• For businesses to implement enhanced due diligence to fulfil their responsibility for respecting Indigenous Peoples’ rights and not rely on domestic laws. All businesses in every sector and the entire environmental, social and governance frameworks should take Indigenous Peoples into account. Benefit-sharing mechanisms in large projects should ensure equitable distribution of project benefits to impacted communities. Corporations should also be held accountable for the violations of human rights and Indigenous Peoples’ rights related to their businesses.
• For all States from the so-called Global North and Global South to earnestly engage in the process to develop and adopt a legally binding instrument at the earliest possible time with the honest objective of advancing corporate accountability and access to remedy for affected Indigenous Peoples and other communities. Indigenous Peoples want to see that the scope of the proposed treaty includes all business enterprises – not only transnational corporations but also domestic companies – albeit with greater responsibility on transnational corporations. Indigenous Peoples call upon the EU to ensure the recognition of Indigenous Peoples’ rights, including FPIC in the EU Corporate Sustainability Due Diligence Directive (CSDDD) in line with the UNDRIP. Further, for the EU to ensure that companies must identify and address actual and potential abuses of Indigenous Peoples as part of their ongoing due diligence. This is imperative to rectify the abuses of EU corporations in Indigenous territories across the globe. Likewise, the protection of human rights defenders should also be included in the CSDDD.
• For all corporations and investors to put in place effective grievance and accountability mechanisms that should be gender sensitive and culturally appropriate, in line with the customary laws of Indigenous Peoples.
• For States and investors to support Indigenous-led solutions for the use of their lands, territories and resources that align with their development priorities, including for energy and minerals, in line with their right to self-determination and development.

In conclusion, Indigenous Peoples stated that as long as their rights as Indigenous Peoples continue to be violated, they cannot have a meaningful and effective implementation of the UNGP, genuine recognition of Indigenous Peoples and respect for human rights.

This article was written by Geneviève Rose, Head of Programmes at the International Work Group for Indigenous Affairs (IWGIA).

This article is part of the 38^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of an Indigenous man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 in full here

Notes and references

^[1] UN Forum on Business and Human Rights | OHCHR. See https://www.ohchr.org/en/hrc-subsidiary-bodies/united-nations-forum-business-and-human-rights

^[2] OHCHR. Guiding Principles on Business and Human Rights. New York and Geneva: OHCHR, 2011. Available at: https://www.ohchr.org/sites/default/files/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf

^[3] Working Group on Business and Human Rights: OHCHR. See https://www.ohchr.org/en/special-procedures/wg-business

^[4] Opening statement from the Indigenous Peoples’ Caucus at the 12^th Business and Human Rights Forum, 27 November 2023,Geneva By: Gervais Ndihokubwayo, Initiative de Promouvoir de l'éducation des Batwa pour un Développement Durable (IPREBAD). https://static.sched.com/hosted_files/forumbhr2023/84/IPCaucus-OpeningStatement-EN.pdf

^[5] https://forumbhr2023.sched.com/event/1P6nw/upholding-the-rights-of-indigenous-peoples-in-the-green-economy?linkback=grid

^[6] Closing statement from the Indigenous Peoples’ Caucus at the 12^th Business and Human Rights Forum, 29 November 2023, Geneva By: Sarah Bestang Dekdeken, Cordillera Peoples Alliance. https://aippnet.org/wp-content/uploads/2023/12/IP-Caucus-Closing-Statement-BHR-Nov2023.pdf

Tags: Land rights, Business and Human Rights , Global governance, Indigenous Peoples Human Rights Defenders