The Rights of Indigenous Peoples

This section provides an overview of Indigenous peoples’ rights as enshrined in international human rights law, along with case studies, to illustrate the relevance of these rights for businesses and investors.

3.1 Who are Indigenous peoples?

Indigenous peoples inhabit all continents of the world except Antarctica, speak three quarters of the world’s approximately 6,000 languages, and live in over 70 countries worldwide. The UN-system body has not adopted an official definition of Indigenous peoples, given the diversity of Indigenous peoples. In some contexts, other terms may be used, such as Tribes, First Peoples/Nations, Aboriginals, Ethnic groups, Adivasi, or Janajati.³⁸ Investors should also be aware that in many parts of the world, the history of Indigenous peoples has been marked by efforts to negate or erase their identities.³⁹

The Chairperson of the Working Group on Indigenous Populations states that the factors considered relevant to the understanding of the concept of “Indigenous" include:

1. Priority in time, with respect to the occupation and use of a specific territory.
2. The voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organization, religion and spiritual values, modes of production, laws, and institutions.
3. Self-identification, as well as recognition by other groups, or by state authorities, as a distinct collectivity.
4. An experience of subjugation, marginalization, dispossession, exclusion, or discrimination, regardless of whether these conditions persist.⁴⁰

In Africa, the use of the term Indigenous has focused less on aboriginality and more on groups whose modes of living differ significantly from dominant society, and whose cultures are under threat. The African Commission’s Working Group of Experts on Indigenous Populations/Communities has suggested that the focus in an African context should instead be on:

1. Self-definition as Indigenous and distinctly different from other groups within a State.
2. Special attachment to and use of their traditional land, whereby, their ancestral land and territory has a fundamental importance for their collective physical and cultural survival as peoples.
3. Experience of subjugation, marginalization, dispossession, exclusion, or discrimination because these peoples have different cultures, ways of life, or modes of production than the national hegemonic and dominant model.⁴¹

These frameworks should be used as reference, rather than as absolute definitions or requirements. In certain regions or countries, Indigenous peoples represent majority populations, such as in Greenland,⁴² and in most Pacific Island countries.⁴³ In Asia, various terms are used for identifying Indigenous peoples, including Indigenous peoples, ethnic minorities, Tribes, or Tribal groups, Indigenous communities, hill tribes, Adivasis, Janajatis, and Scheduled Tribes.⁴⁴

Indigenous peoples in voluntary isolation

Indigenous peoples living in voluntary isolation are “indigenous peoples or subgroups thereof that do not maintain regular contact with the majority population and tend to shun any type of contact with outsiders.”⁴⁵ The meaning of “voluntary” can be controversial, as the decision to remain in isolation may be a survival strategy in response to surrounding pressures rather than a choice of free will.⁴⁶ It is known that they exist in the Americas; West Papua, Indonesia; and on India’s North Sentinel Island.⁴⁷ In the Americas, it is known that they exist in Bolivia, Brazil, Colombia, Ecuador, Paraguay, Peru, and Venezuela, and there are indications of their presence in Guyana and Suriname. Although it is difficult to know the exact numbers, estimates refer to approximately 200 distinct peoples.⁴⁸

3.2 The rights of Indigenous peoples

The rights of Indigenous peoples are protected under core human rights treaties and are also explicitly recognized by several international instruments, including but not limited to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the International Labor Organization Convention 169 (ILO Convention 169). Indigenous rights include the universal individual rights of all people, as well as the collective rights of Indigenous peoples, including the overarching right to self-determination, as affirmed under the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the UNDRIP.

The UNDRIP elaborates on existing human rights instruments, international law, and jurisprudence as they apply to Indigenous peoples, considering their distinctive cultures and histories, including Indigenous peoples’ connection to the environment and traditional lands, and a legacy of dispossession, discrimination, violation of their human rights, and the non-recognition of their own political and cultural institutions.⁴⁹ The Declaration represents the clearest articulation of Indigenous peoples’ rights and is recognized by treaty bodies as an interpretive guide for core human rights treaties as they pertain to Indigenous peoples.⁵⁰ The Declaration sets out the minimum standards for the survival, dignity, and well-being of the Indigenous peoples of the world (UNDRIP, Article 43). The Declaration addresses both individual and collective rights of Indigenous peoples, including the right to self-determination, culture, lands, territories, and resources.

Primary international sources of Indigenous peoples’ rights

• United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
• International Labour Convention (ILO) on the Rights of Indigenous and Tribal Peoples in Independent Countries, No. 169 (ILO Convention 169)
• International Covenant on Civil and Political Rights (ICCPR)
• International Covenant on Economic, Social and Cultural Rights (ICESCR)
• International Convention on the Elimination of All forms of Discrimination (ICERD)
• Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)
• Convention on the Rights of the Child (CRC)
• American Convention on Human Rights
• American Declaration on the Rights of Indigenous Peoples
• African Charter on Human and Peoples’ Rights
• The Convention on Biological Diversity
• Rio Declaration on Environment and Development
• Escazú Agreement
• Paris Agreement
• Judicial and treaty body decisions and communications interpreting the rights listed in many of the aforementioned treaties and declarations.

Note: Many of these instruments do not explicitly address Indigenous peoples; it is their interpretation, often considering the UNDRIP, that has led to the development of the current normative framework of Indigenous peoples’ rights.

The UNDRIP was adopted in 2007, reflecting the recognition accorded under international human rights law of Indigenous peoples’ right to self-determination, and by extension, the requirement to obtain their Free, Prior, and Informed Consent. Initially, four countries – Canada, United States, New Zealand, and Australia – voted against the declaration; however, by 2012, all of them reversed their position. The universal support of the UNDRIP affirms a consensus on the recognition of Indigenous peoples’ individual and collective rights.⁵¹ Several of the provisions in the UNDRIP are reflective of customary international law, further re-affirming the rights of Indigenous peoples and associated obligations and responsibilities of States and businesses.⁵² In addition, several countries have incorporated, or are planning to adopt, provisions of the Declaration into national law.⁵³

Individual and collective rights: The UNDRIP recognizes Indigenous peoples’ right to the “full enjoyment, as a collective or as individuals, of all human rights and the fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and International Human Rights Law” (UNDRIP Article 1). The recognition of collective rights of Indigenous peoples is fundamental for Indigenous peoples’ physical and cultural survival as peoples.⁵⁴

Right to self-determination: The UNDRIP affirms Indigenous peoples’ right to self-determination which means they have the right to freely determine their political status and freely pursue their economic, social, and cultural development (UNDRIP Article 3). In exercising their right to self-determination, Indigenous peoples have the right to autonomy or self-government in matters relating to their internal and local affairs (UNDRIP Article 4).

The Special Rapporteur on the Rights of Indigenous Peoples has described self-determination as “a foundational right, without which Indigenous peoples’ other human rights, both collective and individual, cannot be fully enjoyed.”⁵⁵ Similarly, the Expert Mechanism on the Rights of Indigenous Peoples has stated that “all the rights in the Declaration are indivisible, interdependent, and grounded in the overarching right to self-determination.”⁵⁶

The right to self-determination means that the decision of Indigenous peoples in voluntary isolation to remain isolated must be respected.⁵⁷ If this right is not respected, it may lead to violations of the right to life and put their physical survival at risk.⁵⁸

Right to non-discrimination: The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) commits States to eliminate all forms of racial discrimination and promote understanding among races. The UNDRIP specifies that “Indigenous Peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity” (UNDRIP Article 2). This means that States have an obligation to ensure that their constitution, regulation, or policies do not discriminate against Indigenous peoples.⁵⁹

International human rights law as it applies to Indigenous peoples is closely linked to the right to non-discrimination. The Committee on the Elimination of Racial Discrimination (CERD) has recognized that Indigenous peoples have been discriminated against and deprived of their human rights and lost their lands and resources; as such, the Committee has called upon State Parties to “ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent.”⁶⁰ It is also linked to land rights of Indigenous peoples; as the Inter-American Court of Human Rights has stated, “Non-recognition of the equality of property rights based on indigenous tradition is contrary to the principle of non-discrimination.”⁶¹

Cultural rights: The UNDRIP, and international human rights more broadly, recognizes Indigenous peoples’ right to:

• Maintain and strengthen their distinct cultural institutions.
• Not be subjected to forced assimilation or destruction of their culture.
• Practice their cultural traditions and customs.
• Maintain, protect, and develop the past, present, and future manifestations of their cultures.
• Manifest, practice, develop, and teach spiritual and religious traditions, customs, and ceremonies.
• Maintain, control, protect, and develop their cultural heritage, traditional knowledge, and cultural expression.

Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) addresses cultural rights. The Committee on Economic, Social Cultural Rights (CESCR) has specified that the communal dimension of Indigenous peoples’ cultural life is indispensable to their existence, development, and well-being. In this regard, the Committee has stated that “Indigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected, in order to prevent the degradation of their particular way of life, including their means of subsistence, the loss of their natural resources and, ultimately, their cultural identity.”⁶²

Article 27 of the International Convention on Civil and Political Rights specifies that ethnic, religious, or linguistic minorities “shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” In this regard, the United Nations Human Rights Committee (CCPR) considers that Indigenous peoples have the right to effective participation in decision-making in matters that affect their culturally significant economic activities, “which requires not mere consultation but the free, prior, and informed consent of the members of the community.”⁶³

Rights to land, territories, and natural resources: International human rights law recognizes Indigenous peoples’ right to own, use, develop, and control the lands, territories, and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired (UNDRIP Article 26; ILO Convention 169 Articles 13 & 14). This means that Indigenous peoples’ land rights are inherently derived through their traditional ownership, irrespective of whether it has been recognized formally by the State. Moreover, the UNDRIP, and international human rights law more broadly, recognize Indigenous peoples’ right to:

• Maintain and strengthen their distinctive spiritual relationship with their lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.
• 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.
• The conservation and protection of the environment and the productive capacity of their lands or territories and resources.
• Determine and develop priorities and strategies for the development or use of their lands and territories and other resources.
• 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.

Indigenous peoples’ collective rights to land, territories, and natural resources are intrinsically linked and fundamental to “their cultures, their spiritual life, their integrity, and their economic survival,”⁶⁵ as recognized by the Inter-American Court on Human Rights. The Court recognizes that, “For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations,”⁶⁶ and “to prevent their extinction as a people.”⁶⁷

Right to life, security, and physical integrity: Every human being has the right to life and security (UDHR Article 3, ICCPR Article 6, ICCPR Article 9). The UNDRIP also recognizes that Indigenous peoples have “the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group” (UNDRIP Article 7).

Indigenous peoples and Indigenous human rights defenders disproportionately experience violations of these rights, often by State and private sector actors. The harms of attacks against Indigenous people and community leaders are of collective nature, particularly where Indigenous peoples’ own representatives are targeted.⁶⁸

The rights of Tribal peoples

Some non-Indigenous peoples also have rights similar to those of Indigenous peoples, including collective rights to land and property. The rights of Tribal peoples have been recognized by several international instruments, including but not limited to the ILO Convention 169.

Whereas the terms “IPLCs” or “Indigenous peoples and local communities,” are sometimes used, such usage may challenge the understanding and protection of the specific rights of Indigenous peoples. Whereas Indigenous peoples are collectively distinct peoples, the term local community is not well-defined, and could consist of any community, such as communities in proximity to Indigenous territories, whose interests may be in direct opposition to Indigenous peoples' interests.⁶⁹

While this Toolkit focuses on the rights of Indigenous peoples specifically, some of the due diligence guidance provided in Part B of this Toolkit may also be useful for due diligence with respect to Tribal peoples, or other people with collective land tenure systems and rights, many of whom face a comparable situation to that of Indigenous peoples. The Land Rights Standard elaborates further on this topic.

3.3 Free, prior, and informed consent

FPIC safeguards substantive rights of Indigenous peoples

The concept of Free, Prior, and Informed Consent (FPIC) is a human rights norm that seeks to safeguard Indigenous peoples’ collective rights and cultural identity, and operationalize the right to self-determination of Indigenous peoples, considering their particular historical, cultural, and social situation.⁷¹ FPIC is grounded in the overarching right to self-determination as well as on the need to dismantle structural discrimination of Indigenous peoples. FPIC as a human rights norm also seeks to restore Indigenous peoples’ cultural integrity, pride, and to redress the power imbalance between Indigenous peoples and States.⁷² As noted by the Special Rapporteur on the rights of Indigenous peoples, the primary rights that may be affected by external actors, which are safeguarded by the right to FPIC include:

[…] in addition to rights of participation and self-determination, rights to property, culture, religion and non-discrimination in relation to lands, territories and natural resources, including sacred places and objects; rights to health and physical well-being in relation to a clean and healthy environment; and the right of indigenous peoples to set and pursue their own priorities for development, including with regard to natural resources.⁷³

The right to FPIC is affirmed by international human rights treaty bodies including The Human Rights Committee (CCPR),⁷⁴ the Committee on the Elimination of Racial Discrimination (CERD),⁷⁵ the Committee on Economic, Social and Cultural Rights (CESCR),⁷⁶ the Committee on the Elimination of Discrimination Against Women (CEDAW),⁷⁷ and the Committee on the Rights of Child (CRC).⁷⁸

While expert bodies view FPIC as both a process and a right that enables Indigenous peoples to exercise their overarching right to self-determination, self-governance, and to own, control, and use their lands, territories and resources, common industry practice has too often interpreted FPIC in ways that are inconsistent with international human rights law, e.g., by treating FPIC as a merely a consultation.⁷⁹

Broadly speaking, FPIC is required if “a measure or project is likely to have an impact on indigenous peoples’ lives or land, territories, or resources,”⁸⁰ and in relation to matters fundamental to the “rights, survival, dignity, and well-being” of Indigenous peoples;⁸¹ matters that may put Indigenous peoples’ cultural resources associated with their way of life and cultural expression at risk;⁸² matters that may affect their cultural, intellectual, religious, and spiritual property;⁸³ in relation to access to traditional knowledge of Indigenous peoples;⁸⁴ in relation to storage or disposal of hazardous materials on Indigenous territories, and in relation to relocation of Indigenous peoples.⁸⁵

Pursuant to the business responsibility to avoid infringing on human rights, there is no reason to pre-emptively define only a set of narrow situations where FPIC is required, or to pre-emptively define situations where FPIC will not be required. As the Expert Mechanism on the Rights of Indigenous Peoples has stated, “The perspective of the [I]ndigenous peoples concerned on the potential broader impact” is the starting point for determining whether a project affects them, and in turn, to determine whether FPIC is required.⁸⁶ It should also be noted that FPIC is not a standalone right but must be understood in the context of the substantive rights that it safeguards.⁸⁷

In the case of Indigenous peoples in voluntary isolation, they exercise their right to FPIC by their decision to not maintain contact. The Expert Mechanism on the Rights of Indigenous Peoples has noted that any contact with Indigenous peoples in voluntary isolation that is not initiated by themselves would be a violation of their human rights, and that seeking consent by force or coercion would lead to serious human rights violations, including the crime of genocide.⁸⁸

Elements of a legitimate FPIC process

The right to FPIC also means Indigenous peoples have the right to be consulted about proposals that may affect their rights and, to participate in decision-making. A consultation is a dialogue and negotiation over the course of a project, which should be undertaken in cooperation with Indigenous peoples where Indigenous peoples have the right to influence the outcome of decision-making processes that affect them. Indigenous peoples’ right to participate goes beyond consultation and includes the development of Indigenous peoples’ own initiatives and the right to decide their own priorities for exercising control over their own economic, social, and cultural development.⁸⁹

Consultations to obtain consent should be carried out in good faith, and must meet all the thresholds of being free, prior, and informed. The advice of the Expert Mechanism on the Rights of Indigenous Peoples regarding FPIC is summarized below.⁹⁰

Free:

• The context or climate of the process should be free from intimidation, coercion, manipulation, and harassment, ensuring that the consultation process does not limit or restrict Indigenous peoples’ access to existing policies, services, and rights.
• Features of the relationship between the parties should include trust and good faith, and not suspicion, accusations, threats, criminalization violence towards Indigenous peoples or prejudiced views towards them.
• Indigenous peoples should have the freedom to be represented as traditionally required under their own laws, customs, and protocols, with attention to gender and representation of other sectors within Indigenous communities. Indigenous peoples should determine how and which of their own institutions and leaders represent them. They should therefore enjoy the freedom to resolve international representation issues without interference.
• Indigenous peoples should have the freedom to guide and direct the process of consultation; they should have the power to determine how to consult and the course of the consultation process. This includes being consulted when devising the process of consultation per se and having the opportunity to share and use or develop their own protocols on consultation. They should exert sufficient control over the process and should not feel compelled to get involved or continue.
• Indigenous peoples should have the freedom to set their expectations and to contribute to defining methods, timelines, locations, and evaluations.

Prior:

• Involving Indigenous peoples as early as possible. Consultation and participation should be undertaken at the conceptualization and design phases and not launched at a late stage in a project’s development when crucial details have already been decided.
• Providing the time necessary for Indigenous peoples to absorb, understand and analyze information and to undertake their own decision-making processes.

Informed:

• The information made available should be both sufficiently quantitative and qualitative, as well as objective, accurate and clear.
• The information should be presented in a manner and form understandable to Indigenous peoples, including translation into a language that they understand. Consultations should be undertaken using culturally appropriate procedures, which respect the traditions and forms of organization of the Indigenous peoples concerned. The substantive content of the information should include the nature, size, pace, reversibility and scope of any proposed project or activity; the reasons for the project; the areas to be affected; social, environmental, and cultural impact assessments; the kind of compensation or benefit-sharing schemes involved; and all the potential harm and impacts that could result from the proposed activity.
• Adequate resources and capacity should be provided for Indigenous peoples’ representative institutions or decisions-making mechanisms, while not compromising their independence. Such institutions or decision-making processes must be enabled to meet technical challenges — including, if necessary, through capacity-building initiatives to inform the Indigenous peoples of their rights in general — prior or parallel to the process of consultation.

Consent

Consent is a principle that enables Indigenous peoples to exercise their right self-determination and their right to control, own, use or develop their lands, territories and resources,⁹¹ and their right to make their own collective decisions regarding matters that affect them.⁹² Indigenous peoples’ decision to give or withhold consent is a result of “their assessment of their best interest and that of future generations with regard to a proposal.”⁹³ This includes “the right to give or withhold their free, prior, and informed consent.”⁹⁴ Consent can only be received when it fulfills the three threshold criteria of having been free, prior, and informed, and is evidenced by an explicit statement of agreement. ⁹⁵ Because FPIC safeguards collective rights of Indigenous peoples, it cannot be exercised by individuals.⁹⁶

Consent should be consistent with Indigenous peoples’ own laws, customs, protocols, and best practices. ⁹⁷ In practice, this often means that Indigenous people, as well as their representative institutions, have their own obligations and responsibilities to consult internally through processes to reach consensus via their own decision-making systems, which often require that decisions not be taken solely by individual leaders and that all impacted communities are involved in the decision-making process. In some cases, they may also require that Indigenous organizations to which they belong, are consulted, and that community members living outside of the community, such as students living in cities, participate in decision-making.⁹⁸

Some private sector standards and policies on Indigenous rights have stressed that Indigenous peoples do not have a “veto right” to projects that may affect them; ⁹⁹ however, such positions risk creating a false impression that a project can proceed without violating the rights of Indigenous peoples, even when consent is not obtained. Proceeding with a project that does not have consent is clearly inconsistent with the business responsibility to avoid infringing on human rights, given the risk of irremediable impacts Indigenous peoples often face where the right to FPIC is not respected. This is evidenced by the numerous cases where courts have determined that projects that did not have consent of Indigenous peoples violated Indigenous peoples’ rights. As the Inter-American Commission on Human Rights has clarified, “opposing a decision that Indigenous and Tribal peoples consider seriously harmful to their rights is not a ‘veto;’ it is the exercise of their self-determination.”¹⁰⁰

While the business responsibility to respect human rights exists beyond compliance with national law and regulation, businesses’ failure to respect Indigenous peoples’ decision to withhold consent moves them into a "legal grey area” and exposes them to “judicial review and other types of recourse mechanisms, potentially including international, regional and national tribunals, and by Indigenous peoples’ own institutions.”¹⁰¹