Access to Remedy: Business and Indigenous Peoples’ Rights

The UN Guiding Principles on Business and Human Rights were endorsed by the Human Rights Council (HRC) in 2011. They consist of three pillars aimed at ensuring compliance with human rights in the context of corporate activities.

The first pillar is specifically targeted at States and reaffirms their duty to protect human rights, including those rights affirmed in specific standards addressing vulnerable groups such as indigenous peoples. It also addresses State responsibility to ensure that business actors respect these rights.

The second pillar addresses the corporate responsibility to respect human rights which exists independently of State actions and duties. This responsibility relates to all human rights, including the rights of indigenous peoples, and requires that corporations avoid causing or contributing to adverse human rights impacts by preventing and mitigating the human rights-related risks that are linked to their activities or business relationships. Realizing this requires that they have human rights polices and human rights due diligence processes in place which affirm their commitment to respecting human rights, including indigenous peoples rights as affirmed under the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and ILO Convention 169. This is required to enable them to identify and account for potential impacts on human rights, prevent and mitigate adverse impacts prior to their occurrence, through compliance with the principle of free prior and informed consent (FPIC) and other indigenous rights based safeguards, and where violations do occur to provide for, or cooperate in their remediation through legitimate processes. This briefing paper focuses on the third pillar of the Guiding Principles – access to remedy – and provides a summary of a forthcoming book on Access to Remedy – Business and Indigenous Peoples’ Rights.

The third pillar of the Guiding Principles identifies the measures to be taken by both States and businesses in order to facilitate access to effective remedies. A range of mechanisms are addressed including State based judicial and non judicial mechanisms, non-State based judicial mechanisms (such as regional or international courts), and non-judicial mechanisms, including operational level grievance mechanisms which corporations may implement, or in which they may participate. The need for greater attention to directed to this issue of access to remedy has been highlighted by the HRC in its 2014 resolution requesting the Working Group on Business and Human Rights to:

“launch an inclusive and transparent consultative process with States in 2015, open to other relevant stakeholders, to explore and facilitate the sharing of legal and practical measures to improve access to remedy, judicial and non-judicial, for victims of business-related abuses, including the benefits and limitations of a legally binding instrument … [and] …include as an item of the agenda of the Forum on Business and Human Rights the issue of access to remedy, judicial and non-judicial, for victims of business-related human rights abuses, in order to achieve more effective access to judicial remedies”.iii

Access to remedy has many dimensions in context of the protection of and respect for indigenous peoples’ rights. From the geographical perspective remedial mechanisms span the local, national, regional and international levels, while from the procedural perspective they range from mediation style dispute resolution processes up to judicial proceedings. Issues which arise consequently range from the effectiveness of international and State based judicial and non-judicial mechanisms, to respect for indigenous peoples’ customary institutions, processes and laws.

Indigenous peoples’ access to remedy through State based judicial mechanisms in the context of human rights harms caused by natural resource extraction and infrastructure projects is generally ineffective due to significant practical and legal obstacles which they face when attempting to access courts. State based non-judicial mechanism tasked with addressing indigenous peoples rights frequently tend to lack sufficient capacity or awareness of indigenous peoples rights. Access to mechanisms at the regional and international levels is also challenging for most indigenous communities, and the lack of enforcement powers of these mechanisms limits their effectiveness.

In light of this reality the potential of operational level grievance mechanisms has gained increased attention. These mechanisms range from those established and run by companies to corporate engagement with indigenous peoples’ own dispute resolution systems under their customary institutions and laws. However, many questions remain as to the potential of these mechanisms to effectively address the core concerns of indigenous peoples as well as how they should relate to the broader landscape of judicial and non-judicial mechanisms.

Given the current ineffectiveness of remedial mechanisms and the unacceptable extent and nature of violations of indigenous peoples’ rights which occur in the context of extractive industry and infrastructure projects, there is an urgent need for research around access to remedy which is grounded on the perspectives of indigenous peoples. This is a necessary starting point in order to attempt to bridge the huge gap between access to remedy requirements affirmed in international human rights standards, such as the Guiding Principles and the UNDRIP, and the reality on the ground as experienced by indigenous peoples. The forthcoming book contributes to addressing this gap through case studies in Asia and Latin America which present indigenous peoples’ perspectives on human rights harms and examine their experiences engaging with a broad spectrum of mechanisms in the pursuit of access to remedy.

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