This section builds on a wider landscape of frameworks and jurisprudence related to the business responsibility to respect human rights, as they apply to the rights of Indigenous peoples. The section also outlines elements of rights-respecting practice that investors should expect from their investee companies and assess investee companies against.
4.1 The business responsibility to respect Indigenous rights
The business responsibility to respect human rights has been affirmed by international frameworks such as the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises, jurisprudence,102 as well as human rights treaty bodies,103 regional courts,104 and Special Procedures of the UN Human Rights Council. Accordingly, whereas States have an obligation to protect, respect, and fulfil human rights, businesses (including institutional investors) have a responsibility to respect human rights, meaning that businesses “should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.”105
The responsibility of businesses to respect the rights of Indigenous peoples are confirmed by the UN Guiding Principles,106 regional courts,107 UN treaty bodies,108 and UN Special Procedures. As the Special Rapporteur on the Rights of Indigenous Peoples has affirmed, the responsibility to respect human rights “extends to compliance with international standards concerning the rights of indigenous peoples, in particular those set forth in the United Nations Declaration on the Rights of Indigenous Peoples, no less than it applies to compliance with other international human rights standards.”109
Policy commitment and due diligence
Where businesses may cause, contribute to, or be directly linked to adverse impacts on Indigenous peoples’ rights by their business relationships, businesses should have in place a policy commitment to respect the rights of Indigenous peoples that sets out due diligence and remediation processes with respect to Indigenous peoples’ rights.110 This requires that businesses identify lands, territories and resources traditionally owned or otherwise occupied and used of Indigenous peoples that might be affected even when they are not formally recognized by the State or established through demarcation or title granting.111 Where Indigenous peoples’ lives, rights, lands, territories or resources, or Indigenous peoples’ spiritual, cultural, intellectual, religious and spiritual property may potentially be affected, they should ensure that good faith consultations are undertaken with Indigenous peoples through their legitimate representative institutions and ensure that the right to give or withhold Free, Prior, and Informed Consent is upheld in a manner that is consistent with Indigenous peoples’ own laws, customs, and traditions and international human rights standards.112 They should also guarantee just and fair redress, i.e., compensation for any adverse impacts on Indigenous peoples’ environment and social, cultural, and spiritual aspects of their lives,113 and guarantee fair and equitable sharing of benefits arising from activities taking place on their territories.114
In this context, it should be noted that “activities” under the UN Guiding Principles include both actions and omissions. Omissions can include, for example, the non-recognition of Indigenous peoples’ rights.115 Moreover, businesses should not contribute to any acts of omission by the State that could lead to a violation of Indigenous peoples’ rights.116
Given that self-determination is an overarching right of Indigenous peoples, businesses should also recognize and respect this right, which entitles Indigenous peoples not just to “give consent,” but to determine their futures, and own, use, develop, control, strengthen, and maintain their spiritual relationships to their lands, territories, resources, waters, coastal seas, and other resources, and to uphold their responsibilities to future generations.
Businesses should also give heightened attention to the needs and rights of individuals or groups within Indigenous communities that may be of elevated risk of vulnerability or marginalization, such as elders, women, youth, children, and persons with disabilities.117
The UN Guiding Principles state that businesses should track the effectiveness of their response to human rights impacts in order to drive continuous improvement.118 The Guiding Principles state that, “Business enterprises should make particular efforts to track the effectiveness of their responses to impacts on individuals from groups or populations that may be at heightened risk of vulnerability or marginalization.”119 Given the history of dispossession and violation of Indigenous peoples’ human rights, businesses should thus make concerted effort to track the effectiveness of their responses to Indigenous peoples.
Despite the existence of policies and due diligence processes related to Indigenous rights, Indigenous peoples experience disproportionate levels of business-related human rights violations, which shows that the effectiveness of such policies have often been limited or inadequately implemented. In this regard, investors, and businesses should prioritize what affected Indigenous peoples and Indigenous human rights defenders think would be effective. It is the responsibility of businesses to fully inform themselves of how they can ensure respect for Indigenous peoples’ rights, and institutions, priorities, customs, values, and spiritual relationship to their lands and territories, and their responsibilities for their future generations.
According to the UN Guiding Principles, where business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in the remediation of those impacts. With regards to Indigenous peoples, the Expert Mechanism on the Rights of Indigenous Peoples set out that “Remediation concerning Indigenous peoples and their lands, territories and resources should be informed by the framework set out in the Declaration on the Rights of Indigenous Peoples.”120 This includes but is not limited to the “right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior, and informed consent.”121
The UN Guiding Principles set out that, “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.”122 Grievance mechanisms should ”be devised and implemented with full respect for indigenous peoples’ own justice and dispute resolution systems,”123 and should not preclude access to judicial or other non-judicial grievance mechanisms.124
For non-judicial grievance mechanisms to be effective, Principle 31 of the UN Guiding Principles sets out that such mechanisms should be a) legitimate, b) accessible, c) predictable, d) equitable, e) transparent, f) rights-compatible, g) a source of continuous learning, and h) based on engagement and dialogue. To date, non-judicial grievance mechanisms for situations in which Indigenous peoples are commonly affected have often failed to meet the UN Guiding Principles effectiveness criteria, and in many cases, such mechanisms have exacerbated risks of reprisals for those that have used them.125 The OHCHR and Forest Peoples Programme have further elaborated on best-practices for how businesses can improve the effectiveness of their grievance mechanisms.
Prioritization of Indigenous peoples’ rights
The UN Guiding Principles sets out that businesses should prioritize and first seek to prevent and mitigate those adverse human rights impacts that are most severe or where delayed response would make them irremediable.126 In this regard, the Expert Mechanism on the Rights of Indigenous Peoples has stated:
Given the historic record around the world of dispossession of lands, territories and resources of Indigenous peoples and their related exclusion and marginalization, the actual and potential adverse human rights impacts of Indigenous peoples should be prioritized by business enterprises.127
For Indigenous peoples, the severity of impacts may not just relate to human rights impacts on individuals, but also, irremediable impacts on their cultural survival, dignity, and well-being as peoples. As such, businesses should prioritize both collective and individual rights of Indigenous peoples, including those that they are directly linked to by their business relationships in their value chain.
Respect for Indigenous peoples’ decision-making institutions, laws, customs, traditions, and protocols
Under the UN Guiding Principles, businesses should “comply with all applicable laws and respect internationally recognized human rights, wherever they operate.”128 Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social, and cultural institutions;129 and decision-making institutions.130 As such, businesses should comply with Indigenous peoples’ own legal systems, including their customs and traditions in regulating their land,131 and respect internationally recognized human rights.
Indigenous peoples’ decision-making systems and institutions, often denoted as “customary law,” can include a variety of distinct customs, spirituality, traditions, procedures, and practices,132 which may include, for example, councils of elders, village chiefs, and/or Indigenous parliaments and organizations.133
Case Study: Gitanyow’s land use plan and forestry partnership
In 2012, the Gitanyow Hereditary Chiefs and the Province of British Columbia (BC) in Canada agreed to the Gitanyow Lax’yip Land Use Plan (GLLUP), which was legalized through both Indigenous law (Gitanyow Ayookxw) and provincial law. The agreement on the GLLUP created enhanced certainty for forestry operations in Gitanyow territory, which had previously been the subject of many years of legal proceedings. The case shows how respecting Indigenous peoples’ own laws can create favorable conditions for businesses to operate. As Greg Demille, Manager, Skeena Sawmills Ltd and Skeena Bioenergy stated on the 10-year anniversary of the plan:
“Skeena Sawmills conducts forest management activities including forest planning, road construction, timber harvesting and silviculture within the Gitanyow Territory. In 2012 we endorsed the Gitanyow Lax'yip Land Use Plan ("GLLUP") built in collaboration with the Gitanyow Huwilp. Implementing the GLLUP has been instrumental in fostering a trusting relationship with the Gitanyow and has provided certainty to the fibre supply requirements of Skeena Sawmills and Skeena Bioenergy’s manufacturing facilities located in Terrace BC.”134
In addition to traditional decision-making systems and institutions, numerous Indigenous communities have developed contemporary instruments, laws, and standards of conduct for external actors, including businesses, which are increasingly recognized by courts and international human rights treaty bodies.135 Because the experience of many Indigenous communities has been that consultation processes are inadequate and do not respect Indigenous peoples’ rights, many Indigenous communities have developed their own FPIC protocols and laws based on international human rights law, which seek to facilitate rights-based engagement with external actors.136 Those instruments often define under which circumstances meaningful consultation may occur, including for which activities, providing rules, principles, and guidance for external actors for engaging in a rights-respecting manner. In some cases, this means that a consultation should not occur for certain activities and sectors.
Case Study: Belo Sun Mining in Brazil
The Volta Grande mining project, owned by Canadian mining company Belo Sun is a controversy-ridden gold mining project, located in the Brazilian Amazon, in the State of Pará. Since 2012, its license has been suspended numerous times, including because of inadequate consultation processes with Indigenous communities. In 2017, a Brazilian federal court suspended the license of the Volta Grande project, ordering Belo Sun to consult in accordance with the Juruna people’s own protocol.137
Failure of states to protect and respect Indigenous rights does not absolve business responsibility to respect Indigenous rights
Where national governments fail to protect and respect Indigenous peoples’ rights, businesses still have a responsibility to respect individual and collective rights of Indigenous peoples. According to the UN Guiding Principles and UN treaty body jurisprudence, the business responsibility is not solely a matter of compliance with national legislation; rather, businesses have a responsibility to respect internationally recognized human rights, including where national laws do not recognize or protect those rights.138 As noted by the Special Rapporteur on the Rights of Indigenous peoples, due diligence also means businesses should not contribute to or benefit from failure of a State to meet its obligations toward Indigenous peoples.139 Moreover, businesses should not seek to replace States’ own obligations towards Indigenous peoples.140
Some common ways that States fail to respect Indigenous rights are by allocating concessions that overlap with Indigenous territory to private sector actors without consent of potentially impacted Indigenous peoples,141 or by signing investment agreements with businesses without the consent of Indigenous peoples, or by entering investor state dispute settlement (ISDS) agreements without the consent of Indigenous peoples that may be affected by such agreements. Such actions are exclusionary by nature and too often lead to violations of Indigenous peoples’ rights.142 The Special Rapporteur of the Human Rights Council has stated that the non-participation of Indigenous peoples in the negotiation of investor state dispute settlement (ISDS) agreements is “in and of itself, a violation of the rights to free, informed and prior consent, participation, consultation and self-determination.”143
The responsibility to respect human rights also means that businesses “should not undermine States’ ability to meet their own human rights obligations.”144 As the Working Group on Business and Human Rights has noted, international investment agreements can “constrain the regulatory ability of States to discharge their international human rights obligations.”145 They may also discourage States from protecting and respecting human rights if doing so could result in an investor-state claim.146
Where businesses negotiate with States, they should ensure that Indigenous peoples’ rights, including the right to Free, Prior, and Informed Consent and participation, is respected. States and businesses should consult and obtain consent from Indigenous peoples about the agreement itself, and not merely consult with Indigenous peoples after agreements have been made.
Due diligence also means businesses should “avoid accepting permits or concessions from States when prior consultation and consent requirements have not been met.”147 Where a State grants a permit or concession to a business to carry out activities on Indigenous lands or territories, businesses should have their own processes to ensure that they do not cause or contribute to adverse human rights impacts on Indigenous peoples. Where States have not obtained FPIC from Indigenous peoples, businesses should suspend their operations until consent has been given.
Case Study: Rio Tinto destroys Juukan Gorge Caves
In May 2020, mining giant Rio Tinto destroyed the Juukan Gorge Caves, a site that represented 46,000 years of culture and history for the Puutu Kunti Kurrama and Pinikura (PKKP) peoples of the Pilbara in Western Australia. Rio Tinto had all the necessary permits from the Australian governments, but the destruction of the caves caused immeasurable reputational harm, which resulted in a Parliamentary Inquiry,148 the resignation of Rio Tinto's CEO, two executives and two board members,149 and unprecedented outrage and engagement by large institutional investors,150 resulting in improved disclosure and governance and an overhaul of how the mining industry deals with Indigenous peoples in Australia.151 Rio Tinto also paid restitution to the PKKP peoples, which it is alleged impacted its share price.152
Consultation and FPIC processes should not be used to undermine Indigenous rights
Processes to consult or to seek consent should not be used as a compliance checklist or to legitimize activities that undermine Indigenous peoples’ rights and institutions. The experience of some Indigenous communities has been that consultation processes are not conducted in good faith and may even be used to undermine Indigenous peoples’ rights. For example, the Kaurareg Aboriginal Land Trust from Australia has noted that in their experience, policy language and programs to gain their consent are “cunningly engineered so that our cultural norms of silence are interpreted by non-native rules of debate and majority votes, duly registered as our agreement.”153
In some regions, the experience of trap-like consultations has led to numerous Indigenous communities rejecting consultation and FPIC processes that are not meaningful, that are nor conducted in good faith, or that do not align with the principles of Free, Prior, and Informed Consent. Where Indigenous peoples reject consultation and FPIC processes, this may indicate that pre-conditions to consult and seek consent in good faith in a manner that guarantees Indigenous peoples’ substantive rights do not currently exist in the country or region. Where Indigenous peoples reject consultation and FPIC processes, e.g., for activities that may undermine their rights, businesses should accept that consent has been withheld, and not attempt to consult or seek consent. 154
Case Study: Wampis and Achuar rejection of oil, mining, logging, and consultation (Peru)
Several oil companies have attempted to establish oil projects in Block 64 in the Peruvian Amazon, inhabited by the Wampis and Achuar people of Peru. However, the Achuar and Wampis people have thus far successfully rejected all attempts by oil companies to exploit oil in the region and have clearly stated their continued intention to do so. In July 2022, the president of the Peruvian Federation of Achuar Nationalities (FENAP) told Mongabay “My people will never allow oil, logging, or mining activities. My grandparents passed down these rules to us, and we respect them.” Moreover, FENAP also rejects any consultation attempts because they believe it is intended to manufacture legitimacy to the companies despite their opposition to the projects.155 Despite this rejection, the state oil company, Petroperu, recently stated its intentions to carry out oil activities in the block.156
Businesses cannot offset negative human rights impacts with CSR (Corporate Social Responsibility) programs
Frequent practice among businesses is to have corporate social responsibility (CSR) or Indigenous relations programs, such as hiring Indigenous community members to gain a social license to operate. In some cases, businesses have engaged in charitable activities, portrayed as corporate social responsibility, while failing to respect Indigenous peoples’ substantive rights. As the Officer of the High Commissioner (OHCHR) has stated, “a failure to respect human rights in one area cannot be canceled out by a benefit provided in another.”157
Some Indigenous communities have also experienced the use of CSR programs or charitable activities as a tactic to create division within or between communities, or to “manufacture” consent, e.g., by providing benefits to illegitimate community representatives. Where such tactics are used, the CSR programs or charitable activities are coercive by nature and may lead to violations of several rights. Community division tactics also have the potential of leading to conflict between communities, which can put the right to life, physical integrity, freedom, peace, and security at risk.
Case Study: Oil company community benefits, division, and pseudo communities
In 2010, members of the Kichwa people of Sarayaku in Ecuador were attacked by outsiders with dynamite and firearms, leaving three persons severely injured. The intention of the outsiders was to establish a pseudo community within Sarayaku territory in order to negotiate with a subsidiary of the Italian oil company Agip (part of Eni), which held oil concessions granted by the Ecuadorian government. By establishing a pseudo community, the outsiders sought to pave the way for Agip, and be part of their “community relations” program.158
This was not the first time the Kichwa people of Sarayaku encountered this type of tactic. In 2001, another oil company, Compañía General de Combustibles (CGC), hired the company Daymi Services to carry out what they called “community relations,” which consisted of sociologists and anthropologists developing strategies to divide communities, including by hiring Indigenous personnel to discredit legitimate community leaders, and by creating a pseudo community.159
Both CGC and Agip failed to establish operations in Sarayaku territory.
4.2 Elements of rights-respecting business practice
To meet their responsibility to respect the rights of Indigenous peoples, businesses should go beyond compliance with national legislation and tick-the-box exercises. Several guidelines for businesses and for Indigenous peoples have previously been developed, which investors can use as reference for good practice, such as the Stepping up due diligence guidance and Indigenous peoples’ own FPIC protocols (for additional resources, see Annex).
A common challenge is that, even if well intentioned, people external to Indigenous communities may assume that their own cultural ways of doing things are universal. However, the onus should be on companies, including investors, to see themselves as guests entering Indigenous territories, and should work to learn about and fit into Indigenous peoples’ own protocols and practices for decision-making.
Investors should be aware that, in some areas, there may be a specific history of outsiders trying to use ’divide and conquer’ tactics to undermine Indigenous communities. In this context, Indigenous peoples’ may be particularly alert to ensuring that any decisions are fully informed, debated, and deliberated with consensus built over time. This may also include stages of consultation with diverse groups within communities, such as women, youth, and elders, or externally with students living in cities, neighboring communities (including across national borders where Indigenous people have been divided by colonial borders), or with regional or national Indigenous organizations.
Best practice for companies and investors is to try to undertake projects that Indigenous peoples themselves have identified as priorities and part of their self-determination and planning for their future, and consistent with their own decision-making processes, laws and political, legal, economic, social, and cultural institutions, and responsibilities for future generations.
For businesses that are “external” to Indigenous communities and territories, the following are elements of rights-respecting practice that investors may expect of investee companies whose activities may affect Indigenous peoples’ rights, lands, territories, and resources. The following is not an exhaustive checklist nor a guide, as adequate due diligence must be specific to the context and situation; rather, it aims to provide investors with an idea of what rights-respecting practice may look like.
Policy commitment and due diligence: In addition to having a general due diligence process aligned with the UN Guiding Principles and OECD Guidelines, which is a responsibility of all businesses, businesses should:
- Have a public policy commitment, approved at the highest level, to respect all individual and collective rights of Indigenous peoples, including those set out in the UNDRIP and the ILO Convention 169, which sets out the due diligence and remediation process to respect those rights, including the right to self-determination; right to lands, territories and resources; right to culture and cultural identity; and the right to give or withhold Free, Prior, and Informed Consent.
- A due diligence process to identify the Indigenous peoples and actual and potential impacts on their rights and lands, territories, and resources, that the business may cause or contribute to through its own activities, or which it may be linked to by its business relationships.
- Set clear expectations on personnel, including personnel hired by business partners, to respect Indigenous peoples’ rights, legal systems, governance institutions, and decision-making systems, as well as customs and traditions, e.g., through a code of conduct.
- Recognize that FPIC is not a standalone right, but rather, is a right that safeguards Indigenous peoples’ collective rights, including to self-determination, and lands, territories, and resources, and other substantive rights.
- Recognize that FPIC is an expression of self-determination and self-governance, meaning that Indigenous peoples should determine and control how FPIC is exercised, in accordance with their own laws, traditions, customs, and protocols.
- Recognize that the responsibility to respect Indigenous peoples’ rights, including to self-determination, lands, territories, and culture does not cease once businesses have entered an agreement with Indigenous peoples. Policies and due diligence processes should be ongoing and focus on respecting all rights of Indigenous peoples.
Prior to accepting concessions, permits, or licenses, or negotiating with the government: Businesses should conduct due diligence not just on the project, but also on States, to avoid contributing to, or benefiting from, human rights violations caused by the State:
- Businesses should conduct due diligence to identify whether the State has fulfilled its responsibility to protect Indigenous peoples’ rights and whether the pre-conditions exist to consult and seek consent in good faith in a manner that guarantees Indigenous peoples’ substantive rights. Businesses should not seek to replace States’ own obligations in relation to Indigenous peoples’ rights.160
- Businesses should conduct their own due diligence to ensure and verify that the State has consulted with and obtained consent from all potentially affected communities in a manner that guarantees respect for Indigenous peoples’ substantive rights, prior to the approval of a project, concession, permit, or license. Businesses should avoid contributing to States’ acts of omission in recognizing and protecting Indigenous rights.
- Businesses should understand the local and historical context of potentially affected communities, including any history of dispossession or repression caused by the State or other third parties. Businesses should ensure they do not contribute to exacerbating a legacy of adverse human rights impacts on Indigenous communities.
- Businesses should consult with organizations that work with Indigenous peoples and Indigenous human rights defenders to understand context-specific risks and take adequate steps to avoid being involved in attacks against human rights defenders.
- Businesses that negotiate agreements with States or government agencies should ensure that Indigenous peoples’ right to FPIC, consultation, and participation in decision-making is guaranteed as early as possible, and before the negotiation phase itself. Consultation should not occur merely once agreements have been set.
- Where businesses acquire assets, such as permits, concessions, or acquire companies or projects, they should conduct their own due diligence and avoid acquiring assets that fail to respect Indigenous peoples’ rights.
Pre-consultation: Before any consultation occurs, businesses should take necessary steps to ensure that the consultation process itself respects the rights of Indigenous peoples:
- Businesses should conduct their own due diligence to identify communities and legitimate representatives to identify whether they are willing to be consulted. To decide whether to be consulted, some Indigenous peoples may consult internally with community-members about the consultation itself. If the community and their representatives do not agree to be consulted, businesses should not try to pressure community members to accept a consultation.
- Businesses should identify whether potentially impacted Indigenous peoples have a FPIC protocol or autonomous FPIC laws or statutes. If they have a consultation protocol, businesses should adhere to it. If formal protocols do not exist, businesses should ensure they take adequate steps to guarantee any potential consultation is consistent with Indigenous peoples’ own procedures, laws, customs, and traditions.
- If the consultation protocol or autonomous FPIC law prohibits certain activities, businesses should not consult with the objective of obtaining consent for carrying out any prohibited activities.
- If permission to consult is granted, Indigenous peoples should decide how they want to be consulted. They should be part of designing the agenda, nature, scope, delimitation, and timelines of the consultation.
- Indigenous peoples should have the possibility to access independent expert advice to develop their own protocols for rights-respecting consultation and business conduct.161
- If consultation is carried out by a third-party actor, businesses should take necessary steps to ensure that the consultation is consistent with international human rights standards and verify whether the consultation is free, prior, and informed.
- Businesses should recognize that the right to participation and FPIC is not simply a matter of saying “yes” to a predesigned proposal. Businesses should recognize that Indigenous peoples have their own priorities for their economic, social, and cultural development, as well as responsibilities for future generations, and be open for initiatives or proposals from Indigenous peoples themselves.
Consultation: Any consultation should be conducted in good faith and meet all the thresholds of having been free, prior, and informed:
- Any consultation should be conducted in a culturally appropriate manner with Indigenous peoples’ own representative institutions and in accordance with their own procedures, consistent with their customs, norms, laws, protocols, as well as international human rights standards, and in a language the Indigenous peoples in question are proficient in and prefer.
- Indigenous peoples should have access to sufficient independent legal and financial expertise and capacity-building, including about their rights and the consultation itself.
- Full and objective information about all aspects should be provided to Indigenous peoples, both at preliminary stages as well as throughout the consultation.162
- The consultation is an iterative process. Indigenous peoples should freely decide at any stage of the consultation whether to proceed further with the consultation or not.
- The business or other third party must not engage in any coercive tactics, such as interfering with Indigenous institutions or negotiating with or seeking to influence or bribe individuals, in violation of Indigenous peoples’ own decision-making systems.163
- Indigenous peoples should be free to negotiate project design, implementation, monitoring, and benefit-sharing arrangements, including equity co-ownership arrangements.
- Consultations should not leave out any Indigenous communities that may be affected. Businesses should ensure consultation processes do not create any tension, division, or conflict between communities.
- If the consultation involves any form of compensation to community representatives, it should be consistent with the principles of Free, Prior, and Informed Consent, where Indigenous peoples make an independent decision about compensation schemes, according to their own procedures, laws, traditions, and customs.
Social, spiritual, cultural, environmental, and human right impact assessments: Where Indigenous peoples decide to proceed with a consultation, impact assessments are crucial elements of ensuring that decisions to give consent are fully informed, and to mitigate potential impacts.164 In addition to relevant human rights standards, they should also take into account “indigenous customary laws and traditions (for example those that govern the distribution and ownership of land).”165
- Impact assessments should ensure objectivity of the assessments, either by independent review or by being performed free from the control of the promoters of the project.166
- Indigenous peoples should be involved in the design and implementation of the assessments and be able to include their own criteria and assessment parameters according to their own economic, social, and cultural values and priorities; their spiritual relationship to their lands; and their responsibilities to future generations.
- Where Indigenous peoples lack capacity or do not have prior experience in impact assessments, capacity-building, including independent expert advice, may be required, to ensure Indigenous peoples can make their own informed decisions.
- Indigenous peoples should have sufficient time to evaluate and verify, in accordance with their own timelines, the results of such assessments, including with independent expert advice.
- Where multiple projects or operations exist on or near Indigenous territories, impact assessments should also consider the cumulative impacts of those projects or operations, as well as impacts of previous encroachments.
- Depending on their evaluation of the impact assessments, Indigenous peoples are free to give or withhold consent to proceeding further with the consultation.
Consent: Consent should meet the three thresholds of having been free, prior, and informed.
- Consent may be expressed in treaties, agreements, and contracts, for example. Those should be consistent with Indigenous peoples’ own procedures and laws, traditions, customs, and protocols.
- Decisions to give or withhold consent should concern each relevant aspect of a project, and not just a generalized statement.167
- Agreements should include obligations on the business to respect Indigenous peoples’ rights and own decision-making systems, laws, traditions, and customs. This may also be operationalized through company policies and codes of conduct for employees and business partners.
- Where the parties do not reach an agreement, Indigenous peoples are free to withhold consent. Any decisions of Indigenous peoples to withhold consent should be respected.
- Businesses should transparently disclose their FPIC processes to enable verification that FPIC has or has not been given, except for information that Indigenous peoples wish to be confidential, such as information on sacred sites.
- Where consent has been given, businesses should, together with the concerned Indigenous peoples, develop and agree on a process to monitor and evaluate the fulfillment of the agreement to which Indigenous peoples have given their consent.
- Where the parties reach an agreement and Indigenous peoples give consent, it should be formally documented, and include detailed statements of inter alia the project impacts, provisions for mitigation and reimbursement for any damages, methods for dispute resolution, benefit-sharing agreements, and a description of the consultation and participation that preceded the consent.168
- The business responsibility to conduct due diligence does not cease once consent has been given; businesses should have an ongoing due diligence process, recognizing that human rights risks may change over time.
- Consent is an ongoing obligation that should be maintained; it cannot rely on a one-time agreement absent further obligations. This also means that consent may be revoked; particularly where a company fails to respect the consent agreement, or fails to respect their rights and institutions, laws, customs, and traditions.
- Consent being revoked should be understood as a legitimate exercise of the right to self-governance, like how government agencies at national and regional level can suspend permits for projects that fail to comply with legal, social, or environmental requirements.
- Benefits, whether provided by the State or the company, should be seen not as a form of charity, or a way to gain a license to operate, but rather as a way to respect a right that Indigenous peoples are entitled to under international law.169
- Where possible, and where Indigenous peoples express willingness and have the technical and institutional capacity, equity co-ownership arrangements may be pursued to enable continuous Indigenous participation in decision-making and provide the business with favorable conditions to operate. Such arrangements have already been made in some parts of the world (most notably in Canada).
Grievance and remediation mechanisms
- Businesses operating on or near Indigenous lands should make available a grievance mechanism to which potentially affected rightsholders have agreed, and which is accessible to all potentially affected people in a language they prefer and are proficient in. The mechanism should be developed in a culturally appropriate manner, together with potentially affected communities and experts, in accordance with their customs, traditions, rules, and legal systems.
- Grievance mechanisms should meet the effectiveness criteria laid out in the UN Guiding Principles, both on paper and in practice. In regions where there is an elevated risk of retaliation or attacks against complainants, businesses should take necessary steps to ensure using the grievance mechanism does not exacerbate the risk of retaliation or attacks.
Communication: Businesses should publicly and regularly communicate and disclose,170 in a form and frequency that reflect the business’ human rights impacts; is accessible to potentially affected Indigenous peoples (both in format and language) and other stakeholders; is sufficient to evaluate the adequacy of the business’ response to the human rights impacts; and which does not pose risks to potentially affected Indigenous peoples:
- The concessions or operational sites where Indigenous peoples may be potentially affected.
- Impact assessments, including whether and how affected Indigenous peoples have been part of designing, conducting, and verifying them.
- FPIC processes and their outcomes.
- Any grievances and actions taken to provide or enable remedy.
- Any other information that Indigenous peoples require to exercise their rights. This may include information such as information on shareholders and financiers or due diligence regulations to which they are required to adhere.
- Communication should respect confidentiality of information, including with respect to Indigenous peoples’ traditional knowledge and sacred sites.171