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Monday, November 25 • 16:40 - 18:00
Free, prior and informed consent - Why companies need to act on indigenous peoples’ rights

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Session organized by Asia Indigenous Peoples Pact

Short description the session
Following the adoption of the UN Guiding Principles on Business and Human Rights, a growing number of investors, financial institutions and businesses in a range of sectors have developed, or are in the process of developing, safeguard policies that require them to respect indigenous peoples’ rights, especially their right to free, prior and informed consent (FPIC) as part of their “social license to operate.”
Furthermore, indigenous peoples’ rights to self-determination and to their rights to lands, territories and resources have been gaining support and attention at different levels. However, a growing body of decisions of UN human rights bodies, regional and national courts and complaint mechanisms such as the OECD National Contact Points demonstrate that indigenous peoples continue to be the victims of human rights abuses associated with business activities in sectors such as mining, agribusiness, real estate, tourism, and others.
Typical impacts involve adverse impacts on land and resource rights and attacks against indigenous human rights defenders. Human rights abuses have also been documented in the context of environmental “conservation” undertakings such as national parks and “green energy” projects, and infrastructure development such as mega dam projects. The rights of indigenous peoples are often the first victims of development/business activities in their territories, an often without their FPIC. Those activities are often accompanied by militarization or heavy use of security forces to tackle opposition, which results in more violations.
This session will bring the narratives of indigenous peoples from the ground. It will address the FPIC concept from indigenous peoples’ perspectives which emphasize their ability to exercise collective rights and not necessarily understood as to “consent” by individuals. Moreover, it will call on the need for business to recognize FPIC and respect the rights of indigenous peoples.

Session objectives
  1. Raise awareness among a business audience of the concept of FPIC from the indigenous peoples’ perspective, especially in relation to the notion of collective rights.
  2. Highlight cases from the ground where FPIC is not respected with adverse impacts on the rights of indigenous peoples.
  3. Explore how States can more effectively protect indigenous peoples’ rights and enable FPIC in reality.

Key discussion questions
  • What are the main impacts suffered by the indigenous people in a business context when a meaningful FPIC is not carried out?
  • What is FPIC in relation to the UNDRIP and the linkages between consent and consultation?
  • What is the role for governments in fostering business respect for indigenous peoples’ rights and strengthening protection of the rights of indigenous peoples?

Background to the discussion
The international community is increasingly recognizing the rights of indigenous peoples after several decades of advocacy and negotiation by indigenous peoples in international decision-making processes. Several international instruments address the plight of indigenous communities in terms of their socio-cultural and economic marginalization, exclusion from benefit sharing of economic growth, and impacts of development and climate change on their cultures, identities and resources. The role and contribution of indigenous peoples in sustainable resource management and social and economic development are also gaining recognition and appreciation around the world (AIPP, 2010). Intergovernmental bodies, UN agencies, international organizations, international conventions and human rights law have increasingly, but at varying degrees, recognized indigenous peoples’ right to FPIC. Some international laws and instruments have incorporated FPIC as a right and a principle, making FPIC an obligation for those countries that have ratified these international instruments, notably the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
Of particular relevance to indigenous peoples’ rights in business contexts are their rights to lands, territories and resources guaranteed in the Declaration. It sets out that indigenous peoples have the right to lands, territories and resources, which they have traditionally owned, occupied or otherwise used or acquired and States should give legal recognition and protection to these lands, territories and resources (art. 26). States should also establish and implement processes to recognize and adjudicate indigenous peoples’ rights in relation to their lands, territories and resources (art. 27).
Further, the Declaration requires Free, Prior and Informed Consent (FPIC) of indigenous peoples before:
their relocation from their lands or territories, including an agreement on just and fair compensation and, where possible, with the option of return (art. 10);
adopting and implementing legislative or administrative measures that may affect them (art. 19);
storage or disposal of hazardous materials on their lands or territories (art. 29.2); and
approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources (art. 32).
The Indigenous and Tribal Peoples Convention (No. 169) of the International Labour Organization provides a framework for protection of indigenous peoples’ rights. While many provisions in the Convention are similar to the UNDRIP, particularly in relation to land rights, its provisions related to employment and industries, among other issues are also specifically relevant in business and human rights discourse. 23 States across the world have ratified the Convention to date.

Moderators
avatar for Signe Leth

Signe Leth

Senior advisor, IWGIA

Speakers
JC

Jill Carino

Executive Committee, Asia Indigenous Peoples Pact
JC

Joan Carling

co-convenor, Indigenous Peoples Major Group for Sustainable Development-IPMG
I am an indigenous activist for more than 30 years working on human rights and indigenous peoples rights including in relation to business operations. I am now focusing on the linkages of human rights with the SDGs and the IPMG has initiated the Right Energy Partnership- a rights-based... Read More →
avatar for Mali Ole Kaunga

Mali Ole Kaunga

Director/Founder, IMPACT/ PARAN alliance Kenya
Mali Ole Kaunga is a laikipia Maasai, the founder and Director of OSILIGI(Organisation for the Survival of IL- Laikipiak Maasai Indigenous Group Initiatives) that translate to HOPE in Maasai. OSILIGI later transformed into IMPACT (Indigenous Movement for Peace Advancement and Conflict... Read More →
IR

Indianara Ramires Machado

Guarani Kaiowá indigenous leader, Guanarí-Kaiowá
DM

Durga Mani Yamphu

Lawyers Association Human Rights Nepalese Indigenous Peoples


Monday November 25, 2019 16:40 - 18:00
Room XXII