Corporations are increasingly recognizing the link between good business and respecting human rights. This is reflected in the more than 12,000 corporate participants and other stakeholders from over 145 countries in the UN Global Compact, the largest voluntary corporate responsibility initiative in the world. The Global Compact is a strategic policy initiative spearheaded at the United Nations for businesses committed to aligning their operations and strategies with 10 universally accepted principles in the areas of human rights, labor, environment, and anti-corruption. It is a practical framework for the development and implementation of sustainability policies and practices to help advance sustainable business models and markets.
In February, Cultural Survival interviewed Chief Wilton Littlechild (Cree) from Alberta, Canada. Chief Littlechild served two terms as the North American representative to the UN Permanent Forum on Indigenous Issues and is currently a member of the UN Expert Mechanism on the Rights of Indigenous Peoples. He also advocates for the inclusion of Indigenous Peoples’ rights at the UN Global Compact and the Business and Human Rights Forums.
Cultural Survival: A common criticism of components of the UN system is the lack of any enforcement mechanisms. What safeguards could be implemented by the Global Compact to prevent its signatory companies from committing Human Rights Violations?
Chief Littlechild: It is difficult because the Global Compact is a voluntary process, which is also true for the Human Rights Council’s Guiding Principles on Business and Human Rights (the Guiding Principles).
However, there are numerous possible safeguards which could be implemented by the Global Compact to prevent its signatory companies from committing human rights violations. Some of these options are discussed the in the Expert Mechanism’s Follow-up Study on the Rights to Participate in Decision Making with a Focus on Extractive Industries (Expert Mechanism’s Follow up Study), and its Comment on the Human Rights Council’s Guiding Principles on Business and Human Rights as related to Indigenous Peoples and the Right to Participate in Decision-Making with a Focus on Extractive Industries (Comment on the Guiding Principles).
The Global Compact could ensure that signatory companies create and enforce a policy framework as outlined in the Follow-up Study Paragraph 41 that would:
“41. Assess the risks and actual impacts on the rights of indigenous peoples arising from their activities and business relationships. Commitment to respecting the rights of indigenous peoples should be reflected in the business enterprise’s policies and processes; such policies and processes should be put in place by the enterprise in order to meet its responsibility to respect human rights. Enterprises are advised to assess company compliance with indigenous peoples’ rights and establish a company policy on how best to meet their responsibility to respect such rights, where possible by including indigenous peoples affected by their operations. When activities may affect indigenous peoples, the business enterprise must take adequate steps to ensure meaningful and effective engagement with indigenous peoples. As part of implementing their responsibility, business enterprises engaged in extractive activities must ensure that employees have an understanding of the content of indigenous peoples‟ rights, including their right to participate in decision-making.”
Furthermore, as outlined in paragraph 43 it would also be valuable to encourage that signatory companies:
“43. Support, including financially, mechanisms to ensure that the right of indigenous peoples to participate in decision-making is respected. This can include:
(a) Devoting human and financial resources to appropriate consultation mechanisms;
(b) Establishing partnerships with indigenous peoples;
(c) Ensuring that corporate boards or board advisory panels include indigenous peoples‟ representation and effective participation in order to promote human rights accountability at the corporate level.”
The Comment on Business and Human Rights also addresses potential safeguards for the rights of Indigenous peoples that could be adopted by the Global Compact, it states that:
“Principle 15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including:
(a) A policy commitment to meet their responsibility to respect human rights;
(b) A human rights due-diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights;
(c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.
…
Principle 16. As the basis for embedding their responsibility to respect human rights, business enterprises should express their commitment to meet this responsibility through a statement of policy that:
(a) Is approved at the most senior level of the business enterprise;
(b) Is informed by relevant internal and/or external expertise;
(c) Stipulates the enterprise’s human rights expectations of personnel, business partners and other parties directly linked to its operations, products or services;
(d) Is publicly available and communicated internally and externally to all personnel, business partners and other relevant parties;
(e) Is reflected in operational policies and procedures necessary to embed it throughout the business enterprise.
…
Principle 17. In order to identify, prevent, mitigate and account for how they address their adverse human rights impacts, business enterprises should carry out human rights due diligence. The process should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed. Human rights due diligence:
(a) Should cover adverse human rights impacts that the business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships;
(b) Will vary in complexity with the size of the business enterprise, the risk of severe human rights impacts, and the nature and context of its operations;
(c) Should be ongoing, recognizing that the human rights risks may change over time as the business enterprise’s operations and operating context evolve.
Principle 18. In order to gauge human rights risks, business enterprises should identify and assess any actual or potential adverse human rights impacts with which they may be involved either through their own activities or as a result of their business relationships. This process should:
(a) Draw on internal and/or independent external human rights expertise;
(b) Involve meaningful consultation with potentially affected groups and other relevant stakeholders, as appropriate to the size of the business enterprise and the nature and context of the operation.”
…
“Principle 20. In order to verify whether adverse human rights impacts are being addressed, business enterprises should track the effectiveness of their response. Tracking should:
(a) Be based on appropriate qualitative and quantitative indicators;
(b) Draw on feedback from both internal and external sources, including affected stakeholders.
…
Principle 21. In order to account for how they address their human rights impacts, business enterprises should be prepared to communicate this externally, particularly when concerns are raised by or on behalf of affected stakeholders. Business enterprises whose operations or operating contexts pose risks of severe human rights impacts should report formally on how they address them. In all instances, communications should:
(a) Be of a form and frequency that reflect an enterprise’s human rights impacts and that are accessible to its intended audiences;
(b) Provide information that is sufficient to evaluate the adequacy of an enterprise’s response to the particular human rights impact involved;
(c) In turn not pose risks to affected stakeholders, personnel or to legitimate requirements of commercial confidentiality.
45. Such communication measures should include at least publicly available annual reporting and voluntary assessment measures. While there are examples of such measures in relation to economic development and hiring practices, human rights compliance models are not frequently developed. States and indigenous peoples should encourage business enterprises to establish practices specific to human rights obligations and consider issuing human rights impact reports in indigenous languages, in accordance with article 13(2) of the UN Declaration on the Rights of Indigenous Peoples.”
Furthermore, the Global Compact could ensure that signatory companies, where relevant, create the necessary mechanisms to ensure that grievances are identified and addressed in a timely manner. As stated in Principle 29 of the Comment on Business and Human Rights:
“Principle 29. To make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted.”
The Expert Mechanism’s Follow-up Study on Extractive Industries also gives recommendations for potential safeguards in the form of advice to States and Extractive industries. The implementation of these recommendations could help to protect the rights of Indigenous peoples.
“1. Practical advice for States on how to meet their obligations to consult and seek the consent of indigenous peoples in the context of extractive industry
39. The Expert Mechanism advises States to establish, together with indigenous peoples, (permanent) mechanisms to enable consultation with indigenous peoples which can provide guidance on:
(a) When the context requires consultations with indigenous peoples in line with the present advice;
(b) How to reach indigenous peoples;
(c) Identifying the representatives with which consultation should take place;
(d) How to ensure an independent assessment of consultation practices;
(e) How to undertake the requisite environmental and social impact studies associated with proposed and ongoing extractive activities;
(f) Providing translation services so that information relevant to indigenous peoples‟ decisions and interests can be provided for indigenous peoples in an understandable way;
(g) Enabling indigenous peoples to obtain expert independent and technical assessments of the potential impact of extractive activities on them, including on their lives, lands and territories;
(h) How to ensure that indigenous peoples‟ perspectives on the extractive activity are taken into account, including in relation to their ideal benefit-sharing arrangements;
(i) How to ensure that State corporation boards include indigenous peoples‟ representation and effective participation, which will also ensure human rights accountability at the corporate level.
2. Practical advice for extractive industries on how to meet the requirement to respect the right of indigenous peoples to participate in decision making in the context of extractive industry.
40. States retain the primary obligation to ensure indigenous peoples‟ right to participate is respected; nevertheless, to meet their own responsibility to respect human rights, extractive businesses should ensure, and make their own assessment as to, compliance with the right of indigenous peoples to participate in decision-making. Indeed, positive experience illustrates that extractive industries should work in partnership with States and indigenous peoples at all planning and implementation stages of extractive activities that might impact on indigenous peoples‟ interests.
41. Enterprises in extractive industries should assess the risks and actual impacts on the rights of indigenous peoples arising from their activities and business relationships. Commitment to respecting the rights of indigenous peoples should be reflected in the business enterprise’s policies and processes; such policies and processes should be put in place by the enterprise in order to meet its responsibility to respect human rights. Enterprises are advised to assess company compliance with indigenous peoples‟ rights and establish a company policy on how best to meet their responsibility to respect such rights, where possible by including indigenous peoples affected by their operations. When activities may affect indigenous peoples, the business enterprise must take adequate steps to ensure meaningful and effective engagement with indigenous peoples. As part of implementing their responsibility, business enterprises engaged in extractive activities must ensure that employees have an understanding of the content of indigenous peoples‟ rights, including their right to participate in decision-making.
…
43. Extractive industries are encouraged to support, including financially, mechanisms to ensure that the right of indigenous peoples to participate in decision-making is respected. This can include:
(a) Devoting human and financial resources to appropriate consultation mechanisms;
(b) Establishing partnerships with indigenous peoples;
(c) Ensuring that corporate boards or board advisory panels include indigenous peoples‟ representation and effective participation in order to promote human rights accountability at the corporate level.”
These recommendations for potential safeguards could be applied to the signatories of the Global Compact by implementing them in the Communication on Progress. In this process the signatory companies of the Global Compact annually provide public disclosure to stakeholders on progress made toward implementing the ten principles of the Global Compact and supporting broader United Nations goals and issues. This serves to enhance transparency, accountability, drive continuous performance improvement, and provide a repository of corporate practices to promote dialogue and learning. Indigenous rights can be included in the Communication of Progress so that the policies and actions of companies towards Indigenous Peoples are monitored for their recognition and respect for the rights of Indigenous peoples. Such a process would be particularly valuable, as those businesses which have not adequately reported to the Global Compact through the Communication on Progress are faced with being expelled from the Global Compact.
CS: As a related question, if companies are clearly in violation of international human rights standards, what measures are in place to stop the company from continuing to do so?
CL: There are complaint processes within the UN system that can be used. For example, there is the recently established Universal Periodic Review. The measures in place which are designed to stop the violation of international human rights standards vary depending on the State in which the business operates and the State in which the country is based. Ensuring that companies do not violate human rights, and the enforcement measures necessary to stop them are, even when international mechanism might exist, largely under the control of a State’s legislation.
However, there are some regional and international human rights bodies which may act to stop human rights violations within their jurisdiction. This involves mechanisms such as human rights tribunals and international or regional courts such as the European Court of Human Rights. It should be recognized that it is often the case that Indigenous peoples face particular issues in accessing existing grievance mechanisms. As discussed in the Expert Mechanism’s Comment on Business and Human Rights, paragraph 50:
“50. The commentary highlights that “Indigenous peoples are excluded from the same level of legal protection of their human rights that applies to the wider population.” As to “practical and procedural barriers,” Indigenous peoples “experience difficulty in securing legal representation due to a lack of resources.” Whether through active discrimination or systemic barriers, indigenous peoples often face additional cultural, social, physical and financial impediments to accessing, using and benefiting from these mechanisms.”
This is not to say that there are no mechanisms for stopping the violation of the rights of Indigenous peoples. In the Comment on Business and Human Rights, we recognize some mechanisms and international institutions that are valuable in gaining redress and stopping violation of human rights. This is shown in paragraph 49, which states:
“49. As noted under Guiding Principle 22, consideration of the appropriate access to remedy in relation to Indigenous peoples calls for implementation of articles 27, 28, 32 and 40 of the Declaration on the Rights of Indigenous Peoples. One positive example is the ILO Conventions’ monitoring process where complaints can be brought before a Committee of Experts. However, it only applies to States that have ratified the ILO Conventions.”
CS: How are the interactions between companies and Indigenous people monitored and what sort of complaint procedure is in effect if the companies are not compliant with international human rights standards? How are Indigenous Peoples represented at the Global Compact?
CL: The measures in place to monitor the interactions between companies and Indigenous peoples, as well as complaint procedures vary depending on the State in which the business operates and the State in which the country is based. Ensuring that companies do not violate human rights, that mechanisms exist to monitor the interaction between companies and Indigenous peoples, and the enforcement measures necessary to stop them are often under the jurisdiction of State legislation.
However, there are some national, regional, and international bodies which may act to monitor the interaction between Indigenous peoples and companies, and provide a procedure for complaint. This involves mechanisms such as human rights tribunals and international or regional courts such as the European Court of Human Rights. In addition, Treaty Bodies can issue General Comments, and issue recommendations through specific country reviews. The importance of national and regional human rights mechanisms was noted in the Expert Mechanism’s Comment on Business and Human Rights, where it states:
“52. Another avenue of recourse for Indigenous peoples is the use of human rights tribunals where they exist nationally or regionally. Where regional human rights mechanisms are available, States should accede to their jurisdiction.
Principle 29. To make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted.
53. The mechanisms:
“…may be mediation-based, adjudicative or follow other culturally-appropriate and rights-compatible processes – or involve some combination of these – depending on the issues concerned, any public interest involved, and the potential needs of the parties. To ensure their effectiveness, they should meet the criteria set out in Principle 31.”
54. The Commentary notes the important role to be played by national human rights institutions in this regard. It emphasizes the need for states to address imbalances between the parties and any barriers to access that may be faced by Indigenous peoples.”
In addition, as stated previously, the International Labour Organization has a Convention monitoring process in which complaints can be brought before a Committee of Experts. Though this only applies to those States which have ratified the ILO Conventions, and as noted before there may be issues with the accessibility of Indigenous peoples to such monitoring bodies.
CS: Another criticism of the Global Compact is the continuous violation of Indigenous Rights. Have there been any discussions about addendums to the Ten Principles or other documents that would create more safeguards for Indigenous Peoples?
CL: There have been discussions on including the use of Indigenous customary laws as an addendum to the Ten Principles.
Another thing that could be considered as an Addendum is by the Expert Mechanism’s Comment on Business and Human Rights that builds on the Guiding Principles of the Working Group on Business and Human Rights, by applying the Guiding Principles specifically to Indigenous peoples.
CS: In 2001, there was a proposition by the city of Melbourne to allow cities to sign onto the Global Compact. Has the subsequently created Cities Programme been embraced by other cities or States? Has there been any movement towards extending this program?
CL: The City Program of the Global Compact has expanded significantly beyond Melbourne, Australia, to include over 90 different cities across the world. The cities have committed to the promotion and adoption of the Global Compact’s ten principles. The Cities Programme focuses on collaboration between all levels of government, business and civil society in order to enhance sustainability, resilience, diversity and adaptation within cities and in the face of complex urban challenges.
CS: Has there been any discussion of State involvement in the Global Compact? Do you believe that involving States whose companies have signed onto the Global Compact could pressure companies to be more cognizant of potential human rights violations that the company could be committing?
CL: Not to my knowledge. Though involving States in the Global Compact could provide additional pressure on companies to be more cognizant of potential human rights violations. However, it presupposes both that the States in question have adopted legislation in support of these principles and rights, that the States have a desire to pressure companies to conform to being cognizant of human rights violations, and that the States’ themselves are not complicit in the violation of these rights.
The Committee on the Elimination of Racial Discrimination pointed out in its 70th Session Consideration of Reports Submitted by States Parties under Article 9 of the Convention in 2012 that Canadian companies abroad have been violating the rights of Indigenous peoples, and that, because the state charters these corporations, there is an extra-territorial jurisdiction to make these companies intra vires Canadian law. The Concluding Observation Number 14 states:
14. While noting that the State party has enacted a Corporate Responsibility Strategy, the Committee is concerned that the State party has not yet adopted measures with regard to transnational corporations registered in Canada whose activities negatively impact the rights of indigenous peoples outside Canada, in particular in mining activities (art. 5).
The Committee recommends that the State party take appropriate legislative measures to prevent transnational corporations registered in Canada from carrying out activities that negatively impact on the enjoyment of rights of indigenous peoples in territories outside Canada, and hold them accountable. (CERD/C/CAN/CO/19-20)
The Committee on the Elimination of Racial Discrimination has made similar observations in reference to the United States. In 2014 the Committee stated in Concluding Observation 10 (b) that the United States take measures to stop the violation of the rights of Indigenous peoples by United States registered companies. The Committee called upon the United States to:
(d) Take appropriate measures to prevent the activities of transnational corporations registered in the State party which could have adverse effects on the enjoyment of human rights by local populations, especially indigenous peoples and minorities, in other countries. (CERD/C/USA/CO/7-9)
CS: The UN Global Compact has written a guide entitled “A Business Reference Guide: United Nations Declaration on the Rights of Indigenous Peoples.” Since this was published in 2013, has there been any notable progress of companies understanding the rights of Indigenous Peoples? Has there been any feedback on the guide itself?
CL: Some progress has been made. For example, Conoco Phillips has initiated executive training on the rights of Indigenous peoples. This training is conducted by Indigenous leaders. Another example is Talisman, a company in Calgary that has developed a policy on Free, Prior and Informed Consent of Indigenous Peoples. Please see the Expert Mechanism’s Comment on the Guiding Principles for a fuller discussion and other examples of good practices. As to feedback on the Business Reference Guide itself, I am not aware of this. I like the Guide because it is very pragmatic and action-oriented.
There have been important and valuable recognition of the rights of Indigenous peoples and their interaction with business enterprises. This includes in the report of the Third Forum on Business, which repeatedly makes mention of Indigenous peoples throughout its body. The Outcome Document of the World Conference on Indigenous Peoples makes reference to business and Indigenous rights as follows:
“24. We recall the responsibility of transnational corporations and other business enterprises to respect all applicable laws and international principles, including the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework and to operate transparently and in a socially and environmentally responsible manner. In this regard, we commit ourselves to taking further steps, as appropriate, to prevent abuses of the rights of indigenous peoples.”
Though it is difficult to measure the impact whether companies have an improved understanding of the rights of Indigenous peoples, we can say that these rights are now more often discussed and included in documents relating to business and human rights.
CS: The 2014 Working Group report on issues of human rights and transnational corporations and other business enterprises that was submitted to the Human Rights Council mentions the vulnerability of Indigenous Peoples several times, especially to mention that it was a topic that was discussed at length. However, the Working Group neglected to mention neither Indigenous Peoples nor vulnerable groups in the recommendations at the end of the report. What could explain this exclusion and what could be done in the next year to ensure its inclusion in the next Working Group report?
CL: Though it is valuable that Indigenous peoples were mentioned throughout the report it is disconcerting that neither Indigenous peoples nor vulnerable groups were specifically mentioned in the report’s recommendations. Indigenous peoples need to continue applying pressuring at international and domestic fora to ensure adherence, in particular, in relation to how the Guiding Principles apply to Indigenous peoples. Therefore, the Business Reference Guide and the Expert Mechanism’s Comment on the Guiding Principles are very important.
CS: What could organizations like Cultural Survival or investors do in the next year to ensure a larger discussion of Indigenous Rights at the Business and Human Rights Forum?
CL: One task that organizations like Cultural Survival or investors could do, would be to increase awareness, given that Cultural Survival has a large membership base and regular publications that provide an avenue for education at a broad level. I would encourage Cultural Survival in participating directly through a panel at a side event at the 4th Session of the Business and Human Rights Forum. This could focus on the topic of ethical investments with Indigenous peoples as it relates to their lands, territories and resources.
It may be valuable to ensure that discussion surrounding the rights of Indigenous peoples is to ensure that recommendations and comments by the three UN Indigenous mechanisms are included in discussions. This includes work by the Expert Mechanism such as its study on the rights to participate in decision making with a focus on extractive industries, and its Comment on the Human Rights Council’s Guiding Principles on Business and Human Rights as related to Indigenous Peoples and the Right to Participate in Decision-Making with a Focus on Extractive Industries. Furthermore, the Permanent Forum on Indigenous Issues and the Special Rapporteur on the Rights of Indigenous Peoples may also have valuable and concrete recommendations which could be made to fit into future recommendation.
In addition, engaging in advocacy to ensure a larger discussion of Indigenous rights at the Business and Human Rights Forum should be completed within the framework of the United Nations Declaration on the Rights of Indigenous Peoples. This includes references to Indigenous rights to their lands, territories, and resources (Articles 8, 10, 25, 26, 27, 28, 29, and 32), access to remedy (Articles 27, 28, 32, 40) and free, prior and informed consent (Articles 2; 11(2); 19; and 29), as well as other relevant articles.
For example, the Permanent Forum has emphasized the importance of free, prior and informed consent as an integral component to full recognition of the rights of Indigenous peoples. For this reason the Permanent Forum in 2005 carried out a workshop entitled “An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices.” Furthermore, the Permanent Forum has made multiple recommendations requesting that States, business, and other organizations recognize and implement the right of Indigenous peoples to free, prior and informed consent, particularly regarding lands, territories, waters, and resources. In the report on the 11th Session of the Permanent Forum the reaffirmed the importance of free, prior and informed consent was further affirmed, it stated:
“62. According to articles 25 to 36 of the Declaration, States shall uphold the right to the free, prior and informed consent of indigenous peoples and avoid, minimize and adjudicate disputes concerning land, territory or resources arising from extractive industries, large-scale water, energy and infrastructure projects, and agricultural investments.” (E/2012/43-E/C.19/2012/13)
The Special Rapporteur on the Rights of Indigenous Peoples has also provided important work and insights in the rights of Indigenous peoples internationally and through specific country reports. In the Expert Mechanism’s Comment on Business and Human Rights it was pointed out that:
“42. The Special Rapporteur on the rights of indigenous peoples notes that companies must exercise due diligence by identifying, prior to commencing their activities, various matters relating to the basic rights of indigenous peoples, and by paying adequate attention to those matters as the activities are being carried out. Such matters include recognition of the existence of indigenous peoples and of their own social and political structures; indigenous possession and use of land, territory and natural resources; exercise by the State of its duty to consult indigenous peoples in relation to activities that might affect them, and the related responsibility of business; impact studies and mitigation measures; and benefit sharing with indigenous peoples.”
Further recommendations can be found in the 2003 Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya (A/HRC/EMRIP/2012/CRP.1). In particular, this report includes specific recommendations to business including:
“85. Due diligence exercised by companies in relation to indigenous rights include, first, the identification of the indigenous peoples that might be affected by their activities, including in States that do not recognize, or recognize solely in a limited fashion, the indigenous peoples living within their borders. For the purposes of such identification, companies must apply the international criteria which define the category of indigenous peoples and provide the grounds for a series of specific rights.
86. In addition, within the framework of due diligence, companies must take account of the criteria, as laid down in international rules, for recognition of the rights of indigenous peoples, in particular their right to lands, territories and natural resources, including in cases where domestic law differs substantially from such criteria. Companies must therefore grant, in all respects, full recognition of the indigenous territorial rights arising from customary land tenure, independent of official State recognition.
89. Without prejudice to the principle that States bear the main responsibility to consult, companies must respect the strengthened right of indigenous peoples to participate in decisions affecting them by ensuring adequate mechanisms for consultation and dialogue with them. Here, the purpose of consultations with indigenous peoples should be to seek consensus on key aspects such as identification of the potential negative impact of the activities, measures to mitigate and compensate for such impact, and mechanisms for sharing the benefits derived from the activities. Once again, if companies wish to exercise due diligence, they must ensure that the consultations they hold are based on the criteria laid down in international rules, especially when the States in which they operate provide inadequate legal regulations, or none at all.
90. An adequate consulting process requires full information on the planned corporate activity, which means, first of all, that impact studies must be conducted prior to the implementation of the project. From a human rights standpoint, such studies, conducted by independent technical experts under State supervision, must consider all possible negative impacts on the rights, of whatever kind, of the indigenous communities concerned. Impact studies must also identify possible ways of mitigating those impacts. In the event that such solutions do not exist or are not technically feasible, companies must compensate for all types of damage sustained by the indigenous peoples concerned.
91. Independent of compensation measures, companies are bound by their duty to respect indigenous rights to establish mechanisms ensuring that indigenous peoples share the benefits generated by the activities in question. Benefit sharing responds in part to the concept of fair compensation for deprivation or limitation of the rights of the communities concerned, in particular their right of communal ownership of lands, territories and natural resources. Companies must ensure that benefit-sharing mechanisms genuinely fulfil that purpose, and that they are appropriate to the specific context of indigenous peoples.”
CS: Something that has been noticed during the recent months at Cultural Survival is the consistent cross listing of Indigenous Rights at the majority of the Human Rights Treaty Bodies. From your perspective, do Indigenous Rights merit its own human rights treaty body? Has there been any discussion of this?
CL: Yes, Indigenous rights do merit their own human rights treaty body. However, this development should not preclude existing treaty bodies from assessing the records of states on the human rights of Indigenous peoples. A mechanism, such as an Optional Protocol, should be established to ensure full implementation of decisions by the treaty body to be established. Another possibility is the establishment of an Independent Conflict Resolution mechanism on treaties by utilizing three articles of the UN Declaration: articles 27, 38 and 40.
It is important to recognize the value and uniqueness of the rights of Indigenous peoples as contained in the United Nations Declaration on the Rights of Indigenous Peoples. However, it is also important to ensure that the rights of Indigenous peoples are not segregated into an isolated area or mechanism. Instead, movement towards a specific treaty body to deal with Indigenous issues should be used as an opportunity to educate people on Indigenous rights, and to mainstream these rights into the human rights dialogue. This will help to raise the general awareness and understanding of the rights of Indigenous peoples, and it will underscore the notion that Indigenous rights are relevant and part of all forms of human rights.
Indigenous rights need not only be advanced through their own treaty body or through incorporation into existing bodies. These paths are not mutually exclusive. A specific treaty body would help to focus on the rights of Indigenous peoples, while including these rights in other areas will help to ensure that Indigenous rights are not isolated but viewed as an important part of any discourse on human rights.
Photo credit: Broddi Sigurdarson/ UNPFII.
