By Joan Carling
Blog symposium co-organised by OECD Watch and NOVA School of Law
Indigenous Peoples across the globe have raised numerous complaints on the systemic violations of our rights by business operations of Multinational Enterprises (MNE) especially to our lands, territories and resources, and to the proper conduct of free prior and informed consent processes (FPIC). This outright disregard for our collective rights as Indigenous Peoples has resulted in massive displacements, forced evictions, loss of livelihoods, destruction of food systems, sacred sites and cultural heritage, pollution of our water bodies, soil and air, among other things.
In spite of the adverse and disproportionate impacts of MNE operations in Indigenous territories, the OECD Guidelines for Multinational Enterprises (the Guidelines) developed in 1976 and regularly updated, made minimal reference to Indigenous Peoples prior to this recent update in 2023. This huge and glaring gap pushed many civil society and Indigenous Peoples’ organizations to demand the inclusion of Indigenous Peoples in the consultation process to update the OECD Guidelines. They also demanded the inclusion of human rights due diligence actions, improved measures for environment protection, and for increased transparency and accountability, as well as an explicit reference to respect for and protection of the individual and collective rights of Indigenous Peoples as part of the updated Guidelines. These demands resulted in improvements to the Guidelines, albeit with remaining serious gaps in ensuring robust and accountable business conduct of MNEs. This blog post will delve into the improvements and challenges, as well as critical actions needed to implement the updated OECD Guidelines in a way that respects Indigenous Peoples’ rights and wellbeing.
Acknowledging Progress
It is important to commend the OECD for taking a step in the right direction. The updated Guidelines now contain direct references to the rights of Indigenous Peoples including for their free prior and informed consent (FPIC), drawing explicitly from the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and stating that MNEs should pay “special attention” to particular harms on Indigenous Peoples. This recognition is long overdue, considering the disproportionate and adverse impacts that MNE operations often have on Indigenous communities. Further, this inclusion is significant as it seeks to align the Guidelines with internationally accepted, minimum standards for Indigenous Peoples’ rights as provided by the UNDRIP. This is in fact fully acknowledged in the OECD Guide for National Contact Points on the Rights of Indigenous Peoples when handling Specific Cases issued in 2022 which mentions that:
“The Declaration is the most comprehensive instrument detailing the rights of indigenous peoples in international law and policy, containing minimum standards for the recognition, protection and promotion of these rights. …[T]he Declaration regularly guides States and indigenous peoples in developing law and policy that have an impact on indigenous peoples, including in devising means to best address the claims made by indigenous peoples.”
The Omission of Collective Rights
However, our deep regret lies in the seemingly contradictory omission of specific references to Indigenous Peoples’ collective rights, particularly the right to self-determination; to land, territories and resources and to our cultural integrity. These collective rights are internationally guaranteed as affirmed by the UNDRIP and others as vital for the survival and wellbeing of Indigenous Peoples as distinct, self-determining peoples and communities.
The concern is that the Guidelines appear to interpret Indigenous Peoples’ rights as vested solely in individuals or those at heightened risk due to marginalization. This interpretation would contradict established international law and jurisprudence, which recognize Indigenous Peoples as collective subjects of international law, and our rights are not mere aggregations of individual rights.[1]
UNDRIP as the Cornerstone
It’s crucial to highlight that UNDRIP, now referenced in Chapter IV (Human Rights) of the Guidelines, sets the minimum standards for Indigenous Peoples’ survival, dignity, and well-being. It emphasizes that collective rights are indispensable to Indigenous Peoples’ existence and development. UN treaty bodies and Special Procedures consistently recognize UNDRIP as a framework to interpret state obligations and collective rights as do a growing number of national jurisdictions. For instance, citing UNDRIP and in the context of soy plantations, the UN Human Rights Committee highlighted in 2021 that “it is of fundamental importance that measures that compromise or interfere with the economic activities of cultural value to an indigenous community have been subjected to [FPIC]….”[2] Likewise, the UN Committee on the Elimination of Racial Discrimination similarly ruled in a case concerning mining operations, explaining that “disregard for indigenous territorial rights” and “for their right to offer free, prior and informed consent … constitutes a form of discrimination….”[3] The Australian Federal Court has also revoked offshore oil permits for failure to secure Indigenous Peoples’ effective participation and for disregarding rights over those areas, including in relation to UNDRIP.[4]
Free, Prior, and Informed Consent (FPIC)
Another pivotal aspect of Indigenous Peoples’ rights is FPIC, derived from the prohibition of racial discrimination and the right to self-determination of Indigenous Peoples, including as it relates to ownership, control and self-governance of our lands, territories and resources, which are often impacted by business operations.[5] The reference to FPIC in the Guidelines is certainly fundamental to respecting indigenous peoples rights but, crucially, it needs to be operationalized to generate a more responsible business conduct on the ground. This element is currently deficient.
Key Actions for Implementing the Updated OECD Guidelines
A. Actions for MNEs
Human Rights Due Diligence to include respect for Indigenous Peoples’ Rights
Human rights due diligence is a core element of responsible business conduct, as emphasized in the Guidelines. It requires companies to assess and address the actual and potential human rights impacts of their operations. When it comes to Indigenous Peoples, these impacts often extend beyond individual rights to encompass collective rights related to land, territories, and resources, including those that are not legally recognized by States. Failure to account for these collective rights can lead to incomplete risk assessments and the inability to prevent harm to Indigenous communities and our collective rights. It is thereby paramount for MNEs to commit to upholding the rights of indigenous peoples as outlined in UNDRIP in relation to the Guidelines.[6] In order to do this, it is necessary for MNEs to be aware of the UNDRIP, adopt specific guidelines and build their capacities, on how to engage with Indigenous Peoples in line with ensuring respect for our collective rights, including the incorporation of our perspectives into risk assessments.
B. Actions for the OECD
Developing Guidelines for the conduct of FPIC
FPIC is a cornerstone of Indigenous Peoples’ rights and is closely tied to both human rights due diligence and environmental protection. The Guidelines’ reference to FPIC requires further guidance on its operationalization in all stages of project development and implementation to prevent it from merely becoming a tick in the box tool. It is thereby imperative for the OECD to develop this guidance in cooperation with Indigenous Peoples as soon as possible. By doing so, OECD as a respected voice by companies will be able to set the standards with positive impacts on the ground in the operations of MNE. Our meaningful participation in developing this guidance will ensure a robust implementation of FPIC, ensuring substantive recognition and respect of Indigenous Peoples’ rights, including in collective decision-making. As the UN Committee on Economic, Social and Cultural Rights has explained, FPIC “operates as a safeguard for the collective rights of Indigenous Peoples,”[7] and also requires compliance with any laws or protocols adopted by Indigenous Peoples that set out their expectations for the process to obtain FPIC and its outcomes.[8] Failure to ensure the meaningful participation of Indigenous Peoples in developing the FPIC guidance will inevitably deepen the mistrust of Indigenous Peoples towards MNEs and the OECD.
The right to Participation
In line with the commitment of OECD States to respect Indigenous Peoples’ rights, including the right to participation as provided in the Guidelines, it is important for OECD itself to establish culturally appropriate mechanisms for meaningful and inclusive consultations in good faith with Indigenous Peoples’ representatives regarding ensuring the proper implementation of the Guidelines affecting Indigenous Peoples. This will ensure proper guidance and understanding of the OECD on the concerns, aspirations, and perspectives of Indigenous Peoples in line with the respect of our rights and wellbeing. This participation should not be an afterthought but a fundamental aspect of responsible business conduct, including internally within the OECD and especially as it concerns National Contact Points (NCPs).
Environmental Protection
The environment is intricately linked to the wellbeing of Indigenous Peoples. Many Indigenous communities depend on natural resources for their livelihoods and cultural practices. MNE often operate in or near Indigenous territories, which can result in environmental degradation and threats to Indigenous ways of life. Recognizing the environmental rights of Indigenous Peoples within expanded guidance from the OECD is essential. This recognition should encompass the right to a clean and healthy environment, as well as the right to effectively participate in decisions that affect their land and natural resources. Further, states and MNEs should ensure the security of indigenous land and environment defenders and should adopt a policy of zero tolerance on attacks and reprisals against these defenders in exercising their rights and undertaking legitimate actions.
C. Actions for OECD States and their NCPs
Building knowledge within NCPs
Like MNEs, it is essential that NCPs also develop their own understanding of the UNDRIP and the right to FPIC, as well as how to effectively engage with Indigenous stakeholders. The OECD Guide for National Contact Points on the Rights of Indigenous Peoples when handling Specific Cases issued in 2022 has critical observations and findings especially in relation to the shortcomings in respecting the rights of indigenous peoples to our lands and resources, as well as on the implementation of FPIC. It is thereby necessary to further elaborate these key elements in line with the updated Guidelines.
Capacity Building
OECD governments should invest in capacity building for Indigenous communities, organizations and networks to enable us to engage effectively with MNE in using the Guidelines and relevant instruments and tools. They should also support training, education, and technical assistance that enhances our ability to participate in negotiations and decision-making processes to ensure the respect for our rights and entitlements. Capacity building should be integral to the work of all OECD States.
Collaboration and Partnerships
It would be strategic for the OECD itself to seek opportunities for collaboration with Indigenous organizations and OECD governments to co-create solutions that benefit both MNE and Indigenous communities in line with the implementation of the Guidelines that will fully respect Indigenous Peoples’ rights and wellbeing. This will also lead to good practices and will contribute in the self-determined development of Indigenous Peoples as well as in responsible business conduct in relation to Indigenous Peoples.
D. Positive Outcomes for implementing actions
Implementing all of the actions recommended above in line with the updated OECD Guidelines can yield several positive implications including in upholding social justice and non-discrimination for indigenous peoples. Taking concrete steps to respect Indigenous rights and wellbeing helps build trust and positive relationships with Indigenous communities. This can lead to mutually beneficial partnerships and conflict prevention. Likewise, by conducting thorough human rights due diligence and ensuring FPIC in respecting Indigenous Peoples’ rights, MNE can reduce legal, reputational, and operational risks associated with their activities in Indigenous territories. It will also demonstrate a commitment to ethical and responsible business conduct, which will result to positive outcomes, as well as enhances reputation and positive image to socially conscious investors and consumers.
Conclusion
The updated OECD Guidelines provide an important framework for responsible business conduct in the context of Indigenous Peoples’ rights and wellbeing. However, true progress requires more than just commitments on paper; it necessitates tangible actions and meaningful engagement with Indigenous Peoples as rights holders. By implementing the recommended actions outlined above, the OECD and MNEs can make a real difference on the ground, fostering respectful relationships, and contributing to the empowerment and prosperity of Indigenous Peoples. Ultimately, the success of these efforts will be measured not only by adherence to the Guidelines but by the positive impact they create in the lives of those most affected.
Endnotes
[1] IA Court of Human Rights, Entitlement of legal entities to hold rights under the Inter-American Human Rights System, Series A No. 22 (2016), para. 75 (“international law on indigenous or tribal communities and peoples recognizes rights to the peoples as collective subjects of international law and not only as members of such communities or peoples,” and, therefore, they “exercise some rights recognized by the Convention on a collective basis”). See also General comment No. 26 (2022) on Land and Economic, Social and Cultural Rights, E/C.12/GC/26, para. 16, note 29 (FPIC “operates as a safeguard for the collective rights of Indigenous Peoples…”); and para. 27 (“collective rights of access to, use of and control over lands, territories, and resources … traditionally owned, occupied or otherwise used or acquired”); and Klemetti Käkkäläjärvi v. Finland, Communication No. 2950/2017, para. 9.6 ((observing that provisions of the ICCPR may be interpreted conjunctively with article 1 thereof and UNDRIP, and, consequently, that these rights “have a collective dimension that transcends the individual rights…”).
[2] Campo Agua’ẽ, of the Ava Guaraní People v. Paraguay, CCPR/C/132/D/2552/2015 (12 October 2021), para. 8.7.
[3] Lars-Anders Ågren et al. v. Sweden, CERD/C/102/D/54/2013 (18 December 2020), para. 6.7.
[4] Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193. See also Clyde River (Hamlet) v. Petroleum Geo-Services [2017] SCC 40, 70 (where the Canadian Supreme Court observed in relation to lack of consultation around the granting of oil and gas permits that a “… project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest”).
[5] Committee on Economic, Social and Cultural rights, General comment No. 26 on Land and Economic, Social and Cultural Rights, E/C.12/GC/26 (22 December 2022), para. 11 (land is “closely linked to the right to self-determination” and “Indigenous peoples can only freely pursue their political, economic, social and cultural development and dispose of their natural wealth and resources for their own ends if they have land or territory in which they can exercise their self-determination.”
[6] See e.g., CRC/C/CRI/CO/5-6, 4 March 2020, para. 44(d). In its review of Costa Rica, the UN Committee on the Rights of the Child recommended that indigenous children “are included in processes to seek free, prior and informed consent … in connection with measures affecting their lives, and [that the State] ensure that development projects, hydroelectric projects, business activities, and the implementation of legislative or administrative measures, such as the establishment of protected areas, are subject to consultations and adhere to the [UNDRIP].”
[7] Committee on Economic, Social and Cultural rights, General comment No. 26 on Land and Economic, Social and Cultural Rights, E/C.12/GC/26, para. 16.
[8] See e.g., E/C.12/ARG/CO/4, para. 21 (citing arts 1(1) and (2) and recommending that, “for the implementation of the right to be consulted and to free, prior and informed consent, the State party use the protocols drawn up and agreed upon with indigenous peoples, in order to ensure that factors specific to each people and each case are taken into account”); and E/C.12/MEX/CO/5-6, para. 12-3.
About the author
Joan Carling is an indigenous activist from the Cordillera, Philippines with more than 20 years of working on indigenous issues from the grassroots to the international level. Her expertise includes human rights, sustainable development, the environment, and climate change. She was the General Secretary of the Asia Indigenous People Pact (AIPP) From 2008 to 2016. She was an indigenous expert member of the UN Permanent Forum on Indigenous Issues from 2014-2016. Ms. Carling was awarded the Champions of the Earth-Lifetime Achievement Award by UN Environment in September 2018. She is the co-founder and currently the Executive Director of the Indigenous Peoples Rights International-IPRI.
About the blog symposium
2023 is a momentous year in the corporate accountability world. In June, not only did the OECD adopt key revisions to the newly renamed OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, but the European Parliament also agreed on its position on the proposed directive on corporate sustainability due diligence. In recognition of these important events, NOVA BHRE and OECD Watch are co-hosting a blog symposium in October and November 2023 focused on the updated OECD Guidelines in the context of the current corporate accountability landscape.
The views and opinions expressed in this blog represent the views of the author and does not necessarily represent those of OECD Watch or NOVA School of Law.
