EMRIP8: AGENDA ITEM 4 – Discussion on indigenous peoples’ human rights in relation to business enterprises

Expert Mechanism on the Rights of Indigenous Peoples Eighth session
20-24 July 2015
Item 4 of the provisional agenda
Panel Discussion on indigenous peoples’ human rights in relation to business enterprises

Delivered by Jennifer Tauli Corpuz, Tebtebba Foundation

Thank you, Mr Chairperson.

The operation of extractive industries within indigenous peoples’ territories remains the most significant threat to the individual and collective human rights and, indeed, to the very survival of indigenous peoples. Violence, conflict, displacement, and extrajudicial killings of indigenous activists are rampant in indigenous communities where the are ongoing struggles against extractive industries and other large-scale corporate activities. In many cases, indigenous peoples do not have real access to effective remedies. Experience has shown that States are frequently complicit with corporations in these rights violations and are without tools to hold corporations accountable where needed.

For instance, out of the 238 victims of extrajudicial killings in the Philippines, from July 2010 to March 2015, there have been no convictions of perpetrators in killings of indigenous activists. This is despite the establishment of an inter-agency mechanism to pay special attention to such cases. Across Asia, indigenous peoples are not consulted by extractive industries seeking entry into their territories and do not have access to remedy for rights violations because they are not recognized as indigenous peoples by the States where they are found. Legal systems in Asia rarely recognize the right of indigenous peoples to participate in decision-making where they do not have State-recognized titles to their land and territories.

In this era where corporations have become so dominant that their role in the global economic system “extends beyond the capacities of any one national system to effectively regulate their operations”, innovative and global responses have to be developed. A global solution is required to address the “reality that for many communities, as well as States from all parts of the world, that corporations today have the ability under international trade and investment law to sue states when they pass laws that aim to improve human rights and environmental protections.” This was emphasized by the UN Special Rapporteur on the Rights of Indigenous Peoples in her keynote speech earlier this month at the First Session of the Intergovernmental Working Group on Elaborating a Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights.

The EMRIP, along with the other indigenous-specific UN mandates, are in a unique position to guide the development an international treaty on business and human rights so that it fully respects indigenous peoples’ rights. The advise contained in document A/HRC/21/55, the follow-up report on indigenous peoples and the right to participate in decision-making, with a focus on extractive industries, remains relevant.

We recall paragraph 8 of the report, which emphasizes that the right to participate in decision-making, including FPIC, is a right indivisible from and interrelated with other indigenous peoples’ rights, such as the right to self-determination and right to lands, territories and resources. For indigenous peoples of Asia, it is a crucial to emphasize that FPIC arises from the right of indigenous peoples to self-determination, and that the right of indigenous peoples to participate in decision-making in relation to extractive activities is not confined to situations where indigenous peoples have a State-recognized title to the lands, territories and resources on or near which the extractive activity is to take place.

We also recall paragraph 36 of the report, which recognizes that indigenous peoples’ rights to participate in decision-making in relation to extractive industries that affect them must not be understood as a trade-off for or exchangeable with indigenous peoples’ substantive rights to their lands, territories and resources. Rather, the procedural aspects of the right (such as consultation) exist to promote the substantive right (such as self-determination and underlying rights relating to lands, territories and resources). This must be a guiding principle that animates efforts to negotiate a binding treaty on business and human rights.

To again quote the UN Special Rapporteur on the Rights of Indigenous Peoples, an international legally binding instrument on business and human rights could contribute to redressing gaps and imbalances in the international legal order that undermine human rights, and could help victims of corporate human rights abuse access remedy. This process should not be seen as contradictory to ongoing efforts to implement the Guiding Principles on Business and Human Rights, which could be an interim measure while negotiations for a treaty are ongoing.

Presently, the ability of indigenous peoples affected by corporate human rights violations to access effective remedies is very weak. Such remedies do not even cut across all jurisdictions. Meanwhile, in many instances, corporate human rights violations touch upon the interests of more than one country’s jurisdiction. Thus, we agree with the Special Rapporteur that for the Intergovernmental Working Group to make real advances in providing access to effective remedies, the future legal instrument must clarify the extraterritorial obligations of states to ensure access to effective remedies within all states that are connected to the corporations in question.

In conclusion, we call on the EMRIP to continue to actively participate in and provide advice to the process of elaborating a legally binding instrument on business and human rights. Full and effective and direct indigenous participation in the process of negotiating at business and human rights treaty is likewise crucial, so we call on the Intergovernmental Working Group to enable and provide resources for such participation.

Thank you, Chair, for the opportunity to present this statement.