Indigenous peoples

International law recognises that indigenous peoples have inherent rights derived from their distinct identities and their close and special attachment to their ancestral lands. These rights establish the basis for the following standards or norms.

Right to self-identification and self-determination

The right to self-determination for indigenous peoples is also set out in the 1966 International Covenant on Economic, Social and Cultural Rights, which recognises all people’s right to freely determine their political status, pursue their economic, social and cultural development and dispose of their natural wealth and resources.

The UN Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly of the United Nations in September 2007, also recognises that “indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture”. States therefore need to prevent “any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities”. -readmore-

Recognition and protection of, and compensation for land and territorial rights

The distinct cultural identity and existence of indigenous peoples hinge on protection of their ancestral lands and their unique relationship to that land. This is reflected in the following agreements:

The UN Declaration on the Rights of Indigenous Peoples affords indigenous peoples the right to the lands, territories and resources that they have traditionally owned, occupied or otherwise used or acquired. It also recognises the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions, and to restitution or compensation where these have been taken or damaged without their consent.

The ILO Convention 169 establishes clear rights and protection for indigenous peoples to their lands and territories. In addition, it describes measures to safeguard the right of the peoples concerned, to use lands to which they have traditionally had access for their subsistence and traditional activities.

The Convention on Biodiversity (CBD) addresses the fair and equitable use of biodiversity resources, and requires that the traditional knowledge of indigenous and local communities may only be used with their “approval”.

The MMSD report Finding Common Ground, supported by the IIED and WBCSD, calls for benefit-sharing arrangements that go beyond fair compensation for damages done to indigenous peoples, in order to ensure that these groups actually benefit from the investments in, or in the vicinity of, their territories.

Right to participation

The Vienna Declaration and Programme of Action calls on states to ensure the full and free participation of indigenous peoples in all aspects of society, in particular in matters of concern to them.

The UN Declaration on the Rights of Indigenous Peoples also establishes the right to full participation and the importance of fair procedures for resolving conflicts and disputes.

Right to Free, Prior Informed Consent (FPIC)

Amplifying the protection of land and territorial rights, the United Nations Economic and Social Council has described the right of indigenous peoples to Free, Prior Informed Consent (FPIC) with respect to developments affecting their lands and natural resources in its Working Paper on FPIC. Unlike a consultation process, FPIC is a two-way, interactive negotiation that offers communities greater influence in decision-making, and is more likely to result in direct benefits for them. The process requires full and early disclosure of information and potential impacts of a proposed investment.

The FPIC principle has been recognised in international law and included in the emerging consensus of states and companies. It was confirmed by the ILO Convention 169, the UN Human Rights Norms for Business, the World Commission on Dams, the Inter-American Development Bank the UN Development Programme. and the UN Declaration on the Rights of Indigenous Peoples.

Prohibition of involuntary resettlement

A prohibition of involuntary resettlement is addressed by the UN Declaration on the Rights of Indigenous Peoples, which states that indigenous peoples “shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.”

The IFC Performance Standards set guidelines about land acquisition and involuntary resettlement.

No-Go zones for uncontacted people

The livelihoods and culture of people living in voluntary isolation or uncontacted people must be protected from potential investment. The Inter-American Development Bank recognises this in its indigenous people’s policy by agreeing not to support any project that poses adverse impacts on uncontacted people.

A new UN framework to eliminate caste discrimination in September 2009 received backing from a number of international actors including the government of Nepal, the EU presidency and the UN High Commissioner for Human Rights. The draft UN principles and guidelines are contained in the final report on discrimination based on work and descent (the UN terminology for caste discrimination), published by the Human Rights Council in May 2009.

Role of women

It is important to emphasize the rights of indigenous women and ensure equal participation of indigenous women in FPIC and other indigenous community consultation procedures, including gender impact assessments. The Beijing Declaration of Indigenous Women demands “equal political participation in the Indigenous and modern structures of socio-political structures and systems at all levels.”

Companies face major moral and risk issues when their investments adversely impact indigenous peoples. But apart from the legal, normative, and development arguments for ensuring that host communities have the opportunity to consent to a project, there is also a strong business case for doing so. Multinational corporations and financial institutions that seek local community consent for their operations will have a competitive advantage over those that fail to do so.

Amongst other things, a bank policy on the rights of indigenous peoples should include the following elements:

The bank will only invest in companies that:

• Respect the rights included in the UN Declaration on the Rights of Indigenous Peoples;
• Pay explicit attention to the right of indigenous peoples to Free, Prior Informed Consent (FPIC) with respect to developments affecting their lands and natural resources
• Pay explicit attention to indigenous women’s rights, by ensuring equal participation in FPIC processes.

The bank will only invest in companies that:

• Provide a meaningful Human Rights Impact Assessment with respect to the rights of indigenous peoples for relevant transactions, sectors and countries;

• Make the results of the Human Rights Impact Assessment available to relevant stakeholders to consider their reactions.