Recommendations on the thematic report on ... - Natural Justice

UN Working Group on the Issue of Human Rights andTransnational Corporations and Other Business EnterprisesOffice of the High Commissioner for Human RightsPalais des NationsCH-1211 Geneva 10Switzerland<strong>Recommendations</strong> on the thematic report on Indigenous Peoples andBusiness and Human Rights[Joint] Submission by Natural Justice: Lawyers for Communities and the Environment andthe Centre for Indigenous Knowledge and Organisational DevelopmentIntroduction1. We welcome this opportunity to provide to the Working Group on Human Rights andTransnational Corporations and Other Business Enterprises, submissions andrecommendations on the thematic report on indigenous peoples and business andhuman rights, in the context of the Guiding Principles on Business and Human Rights –Implementing the United Nations “Protect, Respect, and Remedy Framework”.2. This is a submission by Natural Justice: Lawyers for Communities and the Environment,an international not-for-profit organisation based in South Africa, with regional officesin India, Malaysia and New York, and by the Centre for Indigenous Knowledge andOrganisational Development (CIKOD), a non-profit organisation in Ghana.3. The submission will address each of the questions posed in the concept note entitled“Concept and discussion note for consultation with stakeholders on 14 February 2013”.It draws on the experiences of the partners that we work with at the local communitylevel, as well as a series of legal reviews coordinated by Natural Justice and KalpavrikshEnvironment Action Group (India) in 2012, on behalf of the Indigenous Peoples’ andCommunity Conserved Territories and Areas (ICCA) Consortium.A) Focus: What specific issues and challenges should the Working Group take into accountin drafting this report?4. There a number of issues that the Working Group must take into account when draftingits report on indigenous peoples and business and human rights, particularly in thecontext of the implementation of the Guiding Principles on Business and Human Rights.These suggestions below support the discussions had during the Forum on Business andHuman Rights on the topic, and correspond with the views and experiences by NaturalJustice and its partner organisations.

5. The Guiding Principles provides very little reference to specific rights of indigenouspeoples, found in the binding ILO Convention No. 169 on Indigenous and TribalCommunities, and the Declaration on the Rights of Indigenous Peoples (documented inmore detail below) in the implementation of the Guiding Principles. This is problematic,as the Guiding Principles only specifically refers to minimum human rights standards asthe documents expressed in the International Bill of Rights and the principlesconcerning fundamental rights set out in the International Labour Organization’sDeclaration on Fundamental Principles and Rights at Work, with a reference incommentary to instruments elaborating on the rights of indigenous peoples.6. The reality is that indigenous people have a range of human rights and environmentalrights across a number of different covenants, conventions, declarations, andguidelines. However, these rights are increasingly difficult to understand and upholdbecause of the fragmentation of these rights, and their location in a number of differentbinding and non-binding legal instruments. In addition to local socio-culturalcomplexities, domestic judicial systems in developing countries often lack sufficientlegal resources that can specifically address the often complex rights and issues ofindigenous peoples.7. Sometimes indigenous peoples’ rights are not translated into local laws forimplementation and if they are, States fail to support them or to stop the actions ofinvesting corporations in violating these rights. Alternatively, such laws protecting therights of indigenous peoples do exist, but primacy is placed on laws that supportresource utilisation by governments or external actors, to the detriment of existinghuman rights obligations towards occupants or traditional owners (as in the Philippines,Colombia, Fiji, and others). States feel compelled to satisfy the requirements of bigbusiness at the expense of human rights and environmental obligations. Mostcommonly, there can be a lack of political will or capacity of States to respect their ownhuman rights and environmental law obligations towards indigenous populations, givenwhat is perceived to be at stake including but not limited to interest and potentialincome from foreign investors, potential economic benefits (either conspicuous orinconspicuous) and development of the country (at the expense of a few).8. Big business have either intentionally or unconsciously exploited this fragmentation ofindigenous peoples’ rights or lack of political will of State to enforce their own humanrights and environmental obligations, despite being aware of the existence of suchrights. Sometimes, corporations intend to respect relevant human rights andenvironmental rights, but feel that they are not supported by relevant domesticlegislation or political will and do not have the means or knowledge to respect humanrights in this context.9. Whilst the Guiding Principles provide some guidance to relevant actors as to obligationto protect and respect human rights and remedy human rights violations, there is verylittle substantive guidance in the Guiding Principles to States or business as to how toprotect and respect the human rights of indigenous peoples in practice. Thesestakeholders need to be supported to engage in due diligence, perhaps beyond

especting the human rights and obligations set out in domestic legislation, by theWorking Group.10. There appears to be a need for specific guidance as to what constitutes minimumstandards of engagement with indigenous peoples in the context of business,particularly around issues of free, prior and informed consent. This should be contextspecific(for example, engaging with communities around extractive industries is likelyto be substantively different to engaging with communities around agrofuel projects,though there may be some common elements or principles). And whilst thedevelopment of “minimum standards” is not desirable, given the tendency forcompanies to then do the bare minimum, it may assist in providing some consistency incommunity engagement. These “minimum standards” of community engagement mustincluding participatory methodologies and must be mainstreamed. It is the lack ofmainstream knowledge or acceptance of human rights standards generally andspecifically with respect to indigenous peoples and human rights, that is a contributingfactor to the violation of indigenous peoples’ rights.11. Finally, a lack of acceptance of the human rights standards, including indigenouspeoples’ rights and the guiding principles, is still evident in the actions and policies ofsignificant actors in business, including international financial institutions. Theinconsistent or contradictory policies of international financial institutions such as theWorld Bank’s safeguards have had and continue to have an impact on the rights ofindigenous peoples under international law. Given this, it is imperative that theWorking Group encourage all international and regional financial institutions to adoptor amend existing policies in line with human rights and environmental law standards.B) Existing guidance and standards: What existing standards and documents should theWorking Group take into account in drafting this report?12. The UN Guiding Principles on Business and Human Rights provides general guidelinesfor States to protect human rights, for business to respect human rights, and for victimsto access remedies in the event of a violation of rights.13. However, as is becoming increasingly obvious in the requests for assistance andsubmissions to the Working Group, there is a huge discord between this guidance andits operation in reality. There is a real need to provide holistic support to business indealing with human rights, in order to educate business on the human rights principles,standards and rights that they have an obligation to respect under international law. Itis no longer sufficient for business to rely on local State frameworks to protect humanrights; there is a need for States and the international community to demonstrate tobusiness the incentives to follow such human rights principles, standards and rights,given the gaps in accountability to business for breaches of human rights. There arecountless examples in existence that prove that respect for human rights is less costlythan the alternative, with respect to operational costs, as well as costs to reputation.14. There are a plethora of existing standards and documents that the Working Groupshould take into account when considering indigenous peoples and business and human

ights. Whilst these will be discussed below, it is submitted that it is not only theexistence of these standards and documents that are useful, it is the potential forcollaborations with other fora and mechanisms that can strengthen internationalstandards to regulate the conduct of business with respect to human rights andindigenous peoples’ rights.Declaration on the Rights of Indigenous Peoples15. As the Working Group has itself stated, indigenous peoples (and, arguably, localcommunities) are often the most vulnerable in society – hence the real need for aunique set of substantive and procedural standards and rights, as set out in instrumentssuch as the International Labour Organisation Convention No. 169 on Indigenous andTribal Peoples and the Declaration on the Rights of Indigenous Peoples. As recounted inour previous submission to the Working Group (dated 8 December 2011), and as statedby the participants of the Forum on Business and Human Rights and in many of thenumerous submissions provided by a variety of stakeholders to the Working Group, thesafeguards and rights set out in these instruments, but particularly the United NationsDeclaration on the Rights of Indigenous Peoples, are of paramount importance withrespect to indigenous peoples, business and human rights.16. The Declaration was a product of over twenty years of negotiation and compromise,involving a number of different stakeholders including indigenous peoples'organisations, States, academics, and other interested stakeholders. The rights withinthe Declaration reflect real hardship suffered by indigenous peoples, including hardshipsuffered over generations at the hands of big business. Given the compromisesstakeholders made to reach these current standards, the rights set out are regarded as"the minimum standards for the survival, dignity and well-being of the IndigenousPeoples of the world". 117. Whilst the Declaration is not in itself binding, a majority of States around the worldvoted in support of the Declaration (with the exception of New Zealand, Canada, theUnited States, and Australia, which all originally voted against the Declaration, but havesubsequently overturned their decisions), illustrating worldwide acceptance of theprinciples, rights and duties within. In addition, the rights reflected in the Declarationrepresent pre-existing human rights generally, already recognised in a number ofhuman rights instruments (such as the International Covenant on Civil and PoliticalRights, and the International Covenant on Economic, Social and Cultural Rights).Eminent jurists such as the International Law Association, 2 among others, haveconcluded that these rights are considered customary international law.1 Declaration on the Rights of Indigenous Peoples, Article 43.2 International Law Association, 2010. The Hague Conference on the Rights of Indigenous Peoples: InterimReport. Available at: http://www.ila-hq.org/download.cfm/docid/9E2AEDE9-BB41-42BA-9999F0359E79F62D.

The Work of United Nations Special Procedures18. The work of a number of special procedures within the Office of the High Commissionfor Human Rights is useful in terms of the information and case studies generated onindigenous issues and the impacts of business on human rights and the environment.These are set out below.The Special Procedures relating to indigenous peoples19. The Working Group is already well aware of the Special Procedures relation toIndigenous Peoples. The Special Rapporteur on the Rights of Indigenous Peoples, thePermanent Forum on Indigenous Issues and the Expert Mechanism on the Rights ofIndigenous Peoples have all produced reports with respect to business and humanrights, specifically the effects of extractive industries on indigenous peoples. It is notedthat in our original submissions to the Working Group (dated 8 December 2011),Natural Justice previously commented on the work of the Special Rapporteur withrespect to his work on the effects of extractive industries operating within or nearindigenous territories referring to his reports of 11 July 2011 3 and 12 July 2012. 420. The Expert Mechanism on the Rights of Indigenous Peoples has provided a number ofreports of the rights of indigenous peoples on the right to participate in decisionmakingincluding: “Progress report on the study on indigenous peoples and the right toparticipate in decision-making”; 5 “Final report of the study on indigenous peoples andthe right to participate in decision-making” dated 17 August 2011; 6 and finally, the“Follow-up report on indigenous peoples and the right to participate in decisionmaking,with a focus on extractive industries” dated 16 August 2012. 7 In particular, thefollow-up report provides a particular focus on extractive industries, with discussions onthe Guiding Principles on Business and Human Rights and guidance for actors withrespect to participation of indigenous peoples in decision-making.21. The Permanent Forum on Indigenous Issues provided, on 23 February 2012, an“Analysis of the duty of the State to protect indigenous peoples affected bytransnational corporations and other business enterprises” to the Economic and SocialCouncil. 8 The report is important, as it recognises the vital importance of the practicesand policies of States and international institutions to the wellbeing and future ofindigenous peoples in a context where States are more inclined to protect the interestsof business, rather than the rights of their indigenous populations. The report notes therelevant international laws and standards that apply and addresses the question as towhether and to what extent corporations should have the same rights and obligationstoward human rights under international law as States, and how the obligations ofStates should expand to increasingly ensure respect and protection of human rights by3 See A/HRC/18/35.4 See A/HRC/21/47.a5 See A/HRC/15/35.6 See A/HRC/18/42.7 See A/HRC/21/55.8 See E/C.19/2012/3.

States (thereby establishing clarity regarding corporate responsibility andaccountability). 9 Interestingly, it fails to note the impact of the Guiding Principles on theprotection of human rights at a State level (and thereby respect for human rights bybusiness).The Independent Expert on the issue of human rights obligations relating to the enjoymentof a safe, clean and healthy environment22. The work of the Independent Expert includes a mandate to study human rightsobligations, relating to the enjoyment of a safe, clean, healthy and sustainableenvironment, and to identify, promote and exchange views on best practices relating tothe use of human rights obligations and commitments to inform, support andstrengthen environmental policymaking, especially in the area of environmentalprotection, recognising that protecting human rights helps to protect the environment.It is generally recognised that the most impoverished in our global community areindigenous peoples and local communities, who rely on the environment andecosystem services for their very identities, cultures, livelihoods, and wellbeing. Itfollows then that damage to the environment most acutely affects indigenous peoplesand local communities and their basic human rights.23. In his first report to the Human Rights Council dated December 2012, 10 the IndependentExpert notes the experiences of indigenous peoples are “at particular risk from manykinds of environmental damage because of their cultural and economic dependence onenvironmental resources”. 11 Quoting the 2011 report of the Special Rapporteur on theRights of Indigenous Peoples, the Independent Expert noted “the implementation ofnatural resource extraction and other development projects on or near indigenousterritories has become one of the foremost concerns of indigenous peoples worldwide,and possibly also the most persuasive source of the challenges to the full exercise oftheir rights”. 12 The Independent Expert notes that whilst more attention is now beingfocused on environmental threats to vulnerable groups such as indigenous peoples,human rights obligations are still unclear, especially with respect to duties relating tospecial procedural and substantive rights. 13 Indeed, he uses the recent report of theWorking Group to emphasize that almost a third of alleged corporate-related humanrights abuses alleged environmental harms, with a corresponding impact on humanrights. 14 The work of the Independent Expert in raising awareness of environmentallyrelatedhuman rights obligations with reference to business and indigenous peoples isimportant, and will continue to emerge through the work of this particular Independentexpert.9 Permanent Forum on Indigenous Issues report, Paragraph 54.10 “Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of asafe, clean , healthy and sustainable environment, John H. Knox”, Report to the Human Rights Council dated 24December 2012, A/HRC/22/43.11 Report of the Independent Expert, Paragraph 45.12 Report of the Independent Expert, Paragraph 45. See A/HRC/18/35, para. 57.13 Report of the Independent Expert, Paragraph 46.14 Report of the Independent Expert, Paragraph 49.

The Special Rapporteur on the situation of human rights defenders24. The work of the Special Rapporteur on the situation of human rights defenderssupports the implementation of the 1998 Declaration on Human Rights Defenders,including a mandate to seek, receive, examine, and respond to information on thesituation of human rights defenders and establish cooperation and dialogue withgovernments and other actors on the 1998 Declaration.25. The Special Rapporteur’s report to the Human Rights Council, dated 21 December 2011and entitled “Report of the Special Rapporteur on the situation of human rightsdefenders, Margaret Sekaggya”, 15 particularly highlights the impacts that businessactivities have had on human rights defenders working on land and environmentalissues, including in the context of extractive industries, construction and developmentprojects and the rights of indigenous peoples and minority communities. In particular,part of the Special Rapporteur’s work has been the receipt of communicationsconcerning alleged violations of the rights of human rights defenders and activistsworking on land and environmental issues, and sending communications regardingthese violations. She stated in her 2011 report that “the main context in which theseviolations occurred was ongoing land disputes with both State and non-State actors,including multinational corporations and private security companies”. 16 Violationsincluded attempted killings, killings, attacks, assaults, threats including death threats,intimidation and harassment 17 as well as raids on, or destruction of homes, andcriminalisation, both at the hands of State and non-state actors, such as transnationalcompanies, and private security guards. 18 In addition, the Special Rapporteur also actedupon allegations of violations against human rights defenders working on land andenvironmental issues, particularly as they related to indigenous peoples. 19 Interestingly,some of the violated communicated to the Special Rapporteur included participation innegotiations with local authorities to settle land disputes, investigation of land grabbingand representing indigenous communities at local and national levels. 2026. Given the breadth of experience the Special Rapporteur has had in dealing with thehuman rights violations of human rights defenders, particularly with respect todefenders working on land and environmental issues and indigenous peoples, includingdirect contact with affected people, the work of the Special Rapporteur, particularly her2011 report, is particularly useful.Special Rapporteur on the Right to Food27. The mandate of the Special Rapporteur on the Right to Food includes the promotion ofthe full realisation of the right to food and adoption of measures at the national,15 See A/HRC/19/55.16 Report of Special Rapporteur on the situation of Human Rights Defenders, paragraph 66.17 Report of Special Rapporteur on the situation of Human Rights Defenders, paragraph 68.18 Report of Special Rapporteur on the situation of Human Rights Defenders, paragraphs 69 and 70.19 See Report of Special Rapporteur on the situation of Human Rights Defenders, paragraphs 73-80.20 Report of Special Rapporteur on the situation of Human Rights Defenders, paragraph 73.

egional and international levels for the realisation of the right, examine ways andmeans of overcoming existing and emerging obstacles to realisation of the right and topresent recommendations on steps to achieving the full realisation of the right to food.His reports to the General Assembly entitled “The Right to Food” dated 11 August 2010and 8 August 2012 are relevant to the work of the Working Group and should beconsidered when the Working Group drafts its report.28. His 2010 report discussed access to land and security of land tenure as essential to theenjoyment of the right to food worldwide, discussing existing pressures on lands such aslarge-scale plantations for the production of food, energy or cash crops and advisingcaution where investments imply a shift in land rights. 21 In addition, measures adoptedwith respect to climate change mitigation of industrialised countries or environmentalconservation, such as projects developed for the purposes of REDD (Reducing Emissionsfrom Deforestation and Forest Degradation) or the creation of wildlife reserves,national parks and other protected areas can pose as a significant threat to forestdwellers and other indigenous peoples who reside, traditionally own, occupy or utilisesuch forest-based resources for their livelihoods, affecting their human right to food. 22The Special Rapporteur on the Right to Food notes that there has been a rapid increasein industrial uses of land and urbanisation, with particular examples of farmers’ landsbeing expropriated for mining projects or industrial plants, with little regard to rights toproperty or compensation. 23 The Special Rapporteur noted the particular affects ofaccess to land and security of land tenure on indigenous peoples, allocating an entiresection on this topic 24 and referring to relevant provisions in international law andjurisprudence that support the implementation and protection of indigenous peoples’rights.29. In the Special Rapporteur on the Right to Food’s 2012 report, the Rapporteur focuseson the role of global marine and inland fisheries to the provision of security, and thedecline of this source of food through unsustainable and destructive fishing practices,distorting subsidies and the effects of climate change. Current challenges causingdeclining fish stocks include overfishing, reliance on industrial fishing methods includingindustrial bottom trawling 25 and pollution and habitat loss, such as oil spills, agriculturaland industrial run-off, pollution from aquaculture and plastic debris, and thedestruction of mangrove forests and coral reefs. 26 The Special Rapporteur on the Rightto Food’s reports contain valuable information as to the effect of business, be it throughaccess to land and insecure land tenure issues, or pollution and unsustainable fishingpractices on indigenous peoples that the Working Group should take into account.21 Report of the Special Rapporteur on the Right to Food, 2010, paragraph 7.22 Report of the Special Rapporteur on the Right to Food, 2010, paragraph 8.23 Report of the Special Rapporteur on the Right to Food, 2010, paragraph 9.24 Report of the Special Rapporteur on the Right to Food, 2010, paragraphs 11 - 13.25 Report of the Special Rapporteur on the Right to Food, 2012, paragraphs 13 - 14.26 Report of the Special Rapporteur on the Right to Food, 2012, paragraphs 17-19.

Existing rights, guidelines and safeguards developed under international environmentalinstrumentsConvention on Biological Diversity30. Much work has been done to enshrine and safeguard the rights of indigenous peoplesand local communities under the auspices of the Convention on Biological Diversity(CBD).31. In the text of the Convention itself, Article 8(j) encourages the respect, preservation andmaintenance of traditional knowledge relevant for the conversation and sustainable useof biological diversity.32. Article 10 (Sustainable Use of Components of Biological Diversity) states that Partiesshall: “(a) integrate consideration of the conservation and sustainable use of biologicalresources into national decision-making; (b) adopt measures relating to the use ofbiological resources to avoid or minimize adverse impacts on biological diversity; (c)protect and encourage customary use of biological resources in accordance withtraditional cultural practices that are compatible with conservation or sustainable userequirements; (d) support local populations to develop and implement remedial actionin degraded areas where biological diversity has been reduced; and (e) encouragecooperation between its governmental authorities and its private sector in developingmethods for sustainable use of biological resources.”33. There are also voluntary guidelines under the auspices of the CBD that provide detailedguidance and safeguards for engagement with indigenous peoples and localcommunities by external actors, both with respect to conduct of cultural,environmental and social impact assessments and to ensure respect for cultural andintellectual heritage. Ensuring effective and meaningful community engagement andparticipation in decision-making processes is likely to decrease the likelihood of humanand environmental rights violations, as well as promoting the protection of theenvironment. These guidelines and safeguards include:o Akwé: Kon Voluntary guidelines for the conduct of cultural, environmentaland social impact assessments regarding developments proposed to takeplace on, or which are likely to impact on, sacred sites and on lands andwaters traditionally occupied or used by indigenous and local communities(adopted as Decision XI/16 in 2004 by the 7 th Conference of the Parties to theCBD).o Tkarihwaié:ri Code of Ethical Conduct to Ensure Respect for the Cultural andIntellectual Heritage of Indigenous and Local Communities (adopted asDecision X/42 in 2010 by the 10 th Conference of the Parties).o Malawi Principles on the Ecosystem Approach (adopted as Decision XI/11 in2004 by the 7 th Conference of the Parties)o Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity(adopted as Decision VII/12 in 2004 by the 7 th Conference of the Parties).

o Guidelines on Biodiversity and Tourism Development (adopted as DecisionVII/14 in 2004 by the 7 th Conference of the Parties).o Proposals for the Application of Ways and Means to Remove or MitigatePerverse Incentives (adopted as Decision VII/18 in 2004 by the 7 th Conferenceof the Parties).34. In addition, the 2011-2020 Strategic Plan and Aichi Biodiversity Targets (which areintended to be used across the UN system) are also of great relevance as overarchingguidance and targets. An indicative list of indicators is contained in the annex toDecision XI/3 (Monitoring Progress in implementation of the Strategic Plan forBiodiversity 2011-2020 and the Aichi Biodiversity Targets). The Working Group shouldcontribute to the achievement of the following targets in particular:o Target 3: By 2020, at the latest, incentives, including subsidies, harmful tobiodiversity are eliminated, phased out or reformed in order to minimize oravoid negative impacts, and positive incentives for the conservation andsustainable use of biodiversity are developed and applied, consistent and inharmony with the Convention and other relevant international obligations,taking into account national socio economic conditions.o Target 4: By 2020, at the latest, Governments, business and stakeholders atall levels have taken steps to achieve or have implemented plans forsustainable production and consumption and have kept the impacts of use ofnatural resources well within safe ecological limits.o Target 14: By 2020, ecosystems that provide essential services, includingservices related to water, and contribute to health, livelihoods and wellbeing,are restored and safeguarded, taking into account the needs ofwomen, indigenous and local communities, and the poor and vulnerable.35. The following Decisions of the Conferences of the Parties to the CBD are also of directrelevance to the mandate of the Working Group (available at: www.cbd.int/decisions):o Decision XI/7 on Business and Biodiversityo Decision X/21 on Business Engagemento Decision XI/6 on Cooperation with International Organisations, OtherConventions and Initiatives, Section E (Collaboration on biodiversity andtourism development)o Decision XI/25 on Sustainable Use of Biodiversity, Annex (Revised<strong>Recommendations</strong> of the CBD Liaison Group on Bushmeat), Section I,paragraph 236. While this work has emerged out of efforts to protect the rights of indigenous peoplesand local communities in the context of the conservation, sustainable use, andequitable sharing of benefits of biodiversity, many of the guidelines and safeguardsunder the auspices of the CBD can be applied generally and can usefully inform thework of the Working Group.UN Conference on Sustainable Development (Rio+20)

FAO Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries andForests in the Context of National Food Security41. The Voluntary Guidelines were adopted in 2012 by the World Committee on FoodSecurity after a multi-stakeholder consultation process and provide comprehensiveguidance to improve governance of tenure of land, fisheries and forests.42. General Principle 3.2 in particular is directed towards non-state actors, and reads:“…business enterprises have a responsibility to respect human rights and legitimatetenure rights. Business enterprises should act with due diligence to avoid infringing onthe human rights and legitimate tenure rights of others. They should includeappropriate risk management systems to prevent and address adverse impacts onhuman rights and legitimate tenure rights. Business enterprises should provide for andcooperate in non-judicial mechanisms to provide remedy, including effectiveoperational-level grievance mechanisms, where appropriate, where they have causedor contributed to adverse impacts on human rights and legitimate tenure rights.Business enterprises should identify and assess any actual or potential impacts onhuman rights and legitimate tenure rights in which they may be involved. States, inaccordance with their international obligations, should provide access to effectivejudicial remedies for negative impacts on human rights and legitimate tenure rights bybusiness enterprises. Where transnational corporations are involved, their home Stateshave roles to play in assisting both those corporations and host States to ensure thatbusinesses are not involved in abuse of human rights and legitimate tenure rights.States should take additional steps to protect against abuses of human rights andlegitimate tenure rights by business enterprises that are owned or controlled by theState, or that receive substantial support and service from State agencies.”Aarhus Convention43. The Convention on Access to Information, Public Participation in Decision-making andAccess to Justice in Environmental Matters, also known as the Aarhus Convention, is anenvironmental agreement (established through the United Nations EconomicCommission for Europe) that links environmental rights with human rights. Itssignificance to the Working Group is its focus on sustainable development through theparticipation of all stakeholders and interactions between the public and publicauthorities. Clearly, community stakeholders, including indigenous communitystakeholders, are only able to sufficiently engage with external actors such asgovernments and translational corporations with sufficient access to relevantinformation, such as information on licensing (exploration, extraction, etc.) that is likelyto affect lands traditionally owned or utilised by indigenous peoples.International Union for Conservation of Nature44. The International Union for Conservation of Nature (IUCN) is the world’s oldest andlargest union dedicated to nature conservation. Its membership is comprised of morethan 1200 organisations, including over 200 governmental and 900 non-governmentalorganisations. It also has about 11,000 voluntary scientists and experts, grouped in six

Commissions in some 160 countries, and the work of the Union is supported by over1,000 staff in 45 offices and hundreds of partners in public, NGO and private sectorsaround the world. It is considered a neutral forum for governments, NGOs, scientists,business, and Indigenous peoples and local communities to find practical solutions toconservation and development challenges, and is known for its significant influence inmultilateral environmental fora on biodiversity, climate change, desertification, andsustainable development.45. At each World Conservation Congress held every four years, IUCN adopts a range ofResolutions and <strong>Recommendations</strong>. At the Fifth Congress held in Jeju, South Korea, in2012, the following relevant Resolutions and <strong>Recommendations</strong> were adopted:o Resolution 5.046: Strengthening the World Heritage Conventiono Resolution 5.087: Energy and conservationo Resolution 5.089: Dams and hydraulic infrastructureo Resolution 5.094: Respecting, recognizing and supporting IndigenousPeoples’ and Community Conserved Territories and Areaso Resolution 5.096: Recognising the indigenous territories as conservationareas in the Amazon Basino Resolution 5.108: The green economy and corporate social andenvironmental responsibilityo Resolution 5.110: Biodiversity offsets and related compensatory approacheso Recommendation 5.147: Sacred natural sites – support for custodianprotocols and customary laws in the face of global threats and challengeso Recommendation 5.175: Strengthening the autonomy of Colombia’s blackcommunities for sustainable natural resource management in their areas,with special emphasis on mining.46. At the Fourth Congress held in Barcelona, Spain, in 2008, the following relevantResolutions and <strong>Recommendations</strong> were adopted:o Resolution 4.013: Sustainable use and accountabilityo Resolution 4.052: Implementing the United Nations Declaration on the Rightsof Indigenous Peopleso Resolution 4.083: Industrial agrofuel productiono Resolution 4.084: Mining exploration and exploitation in and near Andeanprotected areaso Resolution 4.085: Establishing the 1% Earth Profits Fund and sustaininggovernment conservation financeo Resolution 4.086: Guiding and improving IUCN’s involvement with the privatesectoro Resolution 4.087: Impacts of infrastructure and extractive industries onprotected areaso Resolution 4.088: Establishing the IUCN Extractive Industry ResponsibilityInitiativeo Resolution 4.089: Establishing Citizens’ Advisory Councils for large-scaleextractive industry projectso Resolution 4.090: Open-pit metal mining exploration and exploitation inMesoamerica

o Recommendation 4.106: Biodiversity, protected areas, indigenous peoplesand mining activities.C) Existing practices and initiatives: What existing practices and initiatives should theWorking Group take into account in drafting this report?47. In drafting the report on indigenous peoples and business and human rights, theWorking Group should take into account the existing work of indigenous peoples andlocal communities in their attempts to uphold and advocate for their rights on local,regional and international levels, particularly in the context of industrial or large-scaleindustries that depend upon natural resources and biodiversity, including oil, gas andmining, agriculture, fisheries, and hydropower.The Role of Biocultural Community Protocols48. As set out in a previous submission to the Working Group, Natural Justice works withpartner non-governmental and community-based organisations to supportcommunities in the development of biocultural community protocols (BCPs;www.community-protocols.org). BCPs are a community-developed, rights-basedapproach to advocacy on a variety of issues affecting indigenous peoples and localcommunities. BCPs utilise participatory methodologies to ensure the inclusion of largesectors of the community in the development and drafting of the protocol, and adopt alandscape or territory approach to the law (which is essential, given the fragmentationof laws protecting the rights of indigenous peoples and local communities),necessitating an integrated approach to localised rights and responsibilities.49. Although BCPs are inherently diverse (given that they are developed according to aunique community’s or communities’ priorities and situation), common elements tendto include: the articulation of community-determined values, procedures, and priorities;assertion of rights and responsibilities under customary, state, and international law;and clarification of culturally appropriate terms and conditions for engaging withexternal actors such as governments, companies, academics, and NGOs. They can beused as catalysts for constructive and proactive responses to threats and opportunitiesposed by land and resource development, conservation, research, and other legal andpolicy frameworks. These threats have traditionally emanated from State or privateactors, including in the context of large-scale production and extractive industries andinfrastructure projects. These are highlighted in the two boxes below on the Lamu andTanchara biocultural community protocols.50. Every process of developing and using a biocultural community protocol is unique anddiverse, illustrated by the breadth of communities that have used them around theworld. Coordinated regional initiatives have elicited lessons learned and guidance ongood practices and core principles, particularly concerning facilitation of the processaccording to the community’s objectives, priorities, timelines, and approaches. As BCPshave emerged, several locally-adaptable methods and tools such as communityvisioning, mapping and health impact assessments have assisted with different aspectsof a community protocol process, including self-determination, endogenous

development, documentation and communication, social mobilisation, integrated legalempowerment, strategic advocacy, and reflective monitoring and evaluation.51. In addition, the process of developing and using a biocultural community protocolshould be endogenous, inclusive, empowering, and based primarily on the community’sown resources and diversity of knowledge, skills, and experiences. It should promoteintra- and inter-community dialogue and intergenerational sharing, and increase thecommunity’s agency and capacity to ensure that engagements with external actors takeplace with honesty, transparency, respect, social and cultural sensitivity, and integrity.52. These points are illustrated through the development of two BCPs in Africa. The firstbox below highlights the work of Save Lamu in Lamu, Kenya, with respect to thedevelopment of a port and transport corridor through the impending LAPSSET (Lamuand Lamu Port, South Sudan and Ethiopia Transport corridor) project. The second is inthe context of gold mining in Northern Ghana, through the work of CIKOD.LAMU BIOCULTURAL COMMUNITY PROTOCOLWith the assistance of Save Lamu, a biocultural community protocol is being developedas a tool to advocate for the rights of indigenous peoples across Lamu District, Kenya,dealing with the development of a port and transport corridor in the Lamu archipelago.This development is likely to affect a number of traditional livelihoods, including fishing,hunting and gathering, farming, pastoralism and mangrove-harvesting. Even prior to portdevelopment, land speculation has resulted in significant land grabbing. The Lamucommunities are developing a protocol to call for an adequate environmental impactassessment and for consultation with and free, prior and informed consent of indigenouspeoples.The Lamu communities are developing their protocol to document and highlight thebreadth of indigenous experience and reliance on natural resource use, methods ofconservation, the development needs of the community, customary laws and norms,particularly with respect to free, prior and informed consent, decision-making andconservation, and the rights that apply to them locally, particularly with respect to thenew Constitution and bill of rights in Kenya, as well as regionally and internationally.The development of the protocol has involved extensive community consultation andmobilisation and multi-stakeholder meetings to engage with a number of communitymembers, as well as external actors. The process will shortly involve the process ofmapping and participatory video to highlight the likely impact of the port and transportcorridor on affected communities.Save Lamu have been effective in engaging with a number of supporting internationalnon-governmental organisations and raising the profile of community issues ininternational fora such as UNESCO and the Permanent Forum on Indigenous Issues.

TANCHARA BIOCULTURAL COMMUNITY PROTOCOLA biocultural community protocol is being developed in the Upper West region of Ghanaas a tool for advocating for community rights at the local and international levelsparticularly with respect to rights on cultural heritage and sacred sites. CIKOD (the Centrefor Indigenous Knowledge and Organisational Development) is working with acommunity in Tanchara as a response to the Ghanaian government’s grant of prospectingrights to an Australian mining company in 2000, without consultation with or consent ofthe communities who have traditionally owned and utilised the lands and naturalresources and who rely on their natural environment for their livelihoods.After years of exploration, the Tanchara community are facing the impending extractionof gold in their community in 2014. In the meantime, the discovery of viable deposits ofgold in the community have attracted the interest of “galamsay” (illegal miners) to thearea, scarring the land and polluting the environment, including water sources, resultingin hostility within the community. The current influx of galamsay and the likelihood ofmining in the future provide a very real threat to existing sacred groves in thecommunity, which are an integral part of the community’s spiritual life.CIKOD’s expertise in endogenous development tools has meant that the community havealready engaged in a number of participatory methodologies to inform the BCP process,including community visioning, community institutional resource mapping, thedevelopment of a community-driven health impact assessment tool, and multistakeholderprocesses to effectively engage internally and externally on the broadercommunity’s concerns. These endogenous development processes have enabled thecommunity to identify its key assets and strengthen traditional governance structures,including traditional chiefs and religious leaders and protectors, which are vital for theholistic wellbeing of the community, particularly in the context of engagements withexternal parties. CIKOD has drawn on information gathered through ongoing communitydevelopment work and documenting the community’s values, vision for development,customary rights and responsibilities, and what is considered community-acceptablepractices of free, prior and informed consent.Building on this work, with the assistance of CIKOD, the Tanchara community have beendeveloping a biocultural community protocol as a tool in seeking the protection of theirrights to their natural resources, sacred natural sites and traditional knowledge inanticipation of the impending gold mining project. The draft details the community’srights at local, regional and international levels. To date, the community protocol processhas been used to increase the awareness of the community with respect to their rights atcustomary, local, regional, and international levels. The process has also allowedinteractions with external actors such as the Commissioner on Human Rights andAdministrative Justice, Environmental Protection Agency and other government actorsand, to a limited extent, the Australian mining company in question.53. To further enable indigenous peoples, local communities, and their supportingorganisations to understand and utilise rights and responsibilities at all levels, Natural

Justice undertook a series of comprehensive legal reviews in 2012 on laws, judgmentsand institutions as they relate to territories and areas conserved by indigenous peoplesand local communities. 27 The synthesis report, international and regional reviews, and15 country studies could serve as detailed resources for the Working Group andbusinesses and states in specific jurisdictions.The work of existing non-governmental organisations54. There are numerous non-governmental organisations, associations, networks, andcoalitions, among others, that work worldwide to report on the impacts of business oncommunities, including indigenous peoples. These organisations work to promote goodpractice interactions between business and communities and/or assist indigenouspeoples and local communities to uphold their rights through international fora,including through the use of voluntary standards and guidelines.55. In this respect, the work of organisations such as OECD Watch, SOMO, the Centre forInternational Environmental Law, Accountability Counsel, Forest Peoples Programme,Oxfam, the Asian NGO Coalition, and Asia Indigenous Peoples Pact, among others, onthe development, use, strengths, and limitations of international grievancemechanisms, particularly with respect to case studies involving indigenous peoples andlocal communities, is most relevant, so as to fully appreciate the role of voluntarystandards and international financial institutions and their impacts on internationalhuman rights and environmental standards.56. In addition, the work of BASESwiki (Business And Society Exploring Solutions), initiatedthrough the UN Secretary-General's Special Representative on Business and HumanRights to provide access to and improve and learn from non-judicial mechanisms thatcan address grievances and disputes between companies and members of society, is auseful resource in terms of developing and exploring potential collaborations betweenstakeholders that are subject to the work of the Working Group.57. Citizens’ Advisory Councils have been established in several locations, including the USArctic and Gulf of Mexico, to provide independent and informed public oversight ofextractive industry operations that affect their lives and the resources upon which theydepend. Such Councils enable citizens to ensure the highest standards of environmentaland social responsibility, and are empowered to provide oversight on all aspects ofextractive industry development in their region, including exploration, production,transportation, refining and processing, public revenue collection, risk management,and regulatory compliance. One successful example is the Prince William SoundRegional Citizens’ Advisory Council (www.pwsrcac.org).27 Jonas, H., A. Kothari, and H. Shrumm, 2012. An Analysis of International Law, National Legislation,Judgements, and Institutions as They Interrelate with Territories and Areas Conserved by Indigenous Peoplesand Local Communities. Natural Justice and Kalpavriksh: India. Available at:http://naturaljustice.org/library/our-publications/legal-research-resources/icca-legal-reviews.

The work of multi-stakeholder platforms and voluntary certification bodies58. Although they are not without their critiques, multi-stakeholder platforms andcertification bodies are gaining increasing attention and influence within the privatesector. They have each developed bespoke principles, guidelines, and/or criteria formembership and certification. These help respond in part to the gap in internationallaw and policy and also enable more equitable participation of non-state actors such asNGOs. There are difficulties, of course, with ensuring implementation of voluntarystandards, particularly in light of internationally agreed rights and responsibilities. Ofparticular note are the following: Union for Ethical BioTrade(www.ethicalbiotrade.org/); Biodiversity in Good Company Initiative (www.businessand-biodiversity.de);Roundtable on Sustainable Palm Oil (www.rspo.org); and ForestStewardship Council (https://ic.fsc.org).D) What focused insight can the Working Group bring to the issue of business impacts onindigenous peoples, given the role and thematic scope of other UN bodies on the rights ofindigenous peoples?59. The Working Group can provide specific advice and guidance on the role that theGuiding Principles can play with specific reference to indigenous peoples – the mostmarginalised group of people affected by transnational corporations and other businessenterprises. Given its mandate for the dissemination and implementation of theGuiding Principles, the Working Group can work in conjunction with specialistindigenous UN Bodies to develop and disseminate and monitor implementation ofguidance on minimum standards with respect to indigenous peoples and business,including concerning indigenous peoples’ rights to self-determination, self-governance,and representative institutions, decision-making structures and processes; indigenouspeoples’ rights to tenure, stewardship and use of customary territories and naturalresource; and full and effective consultation, participation and free, prior and informedconsent.60. In addition, the Working Group can research and report on good practices, experiencesand lessons learned with respect to the implementation of the Guiding Principles,thereby building its capacity to provide recommendations to States and companies toimprove (on a global scale) international standards that States, transnationalcorporations and other business enterprises should respect and uphold in all stages ofprivate sector engagement.61. Given the cross-cutting nature and fundamental importance of biodiversity and theenvironment to sustainable development and to the realisation of indigenous peoples’rights and livelihoods, the Working Group can make these considerations also of centralimportance to its work and reports. It can do so by ensuring that biodiversity and theenvironment are consistently on the agenda and that standards and provisions fromenvironmental law and jurisprudence are used for guidance alongside those fromhuman rights, trade, and other areas of law.

62. The Working Group may also play a role in collecting and disseminating informationabout the impacts of voluntary and market-based environmental offset schemes andcertification standards that are largely driven by the natural resource- and biodiversitydependentprivate sector, including reducing emissions for deforestation and forestdegradation in developing countries (REDD), biodiversity offsets, and commodityroundtables. Whilst some guidance from various non-governmental sources and to alimited extent within the UN system (particularly regarding REDD), private sectorinitiatives such as the International Council on Mining and Metals are increasinglyengaging in such biodiversity offset schemes amidst a glaring lack of internationallyagreed standards and compliance and monitoring mechanisms. There are also concernswith private sector-driven certification bodies lowering international standards,particularly on human rights and the environment.For more information on this submission, please contact Stephanie Booker(steph@naturaljustice.org.za) or Holly Shrumm (holly@naturaljustice.org).