In many contexts, IP/LC have historically been marginalised and discriminated against. Their lack of resources and political power to defend their rights, combined with inadequate articulation and implementation of national laws, policies, and company commitments have contributed to an increasing number of adverse impacts to these peoples and communities. Many of these impacts are significant in scope and scale, and some are irreparable.

UN Guiding Principles on Business and Human Rights (UNGP) affirm that companies have the responsibility to respect human rights by: 1) avoid causing or contributing to adverse human rights impacts, 2) addressing such impacts when they arise, and 3) actively seeking to prevent or mitigate such impacts that arise from activities which are directly linked to their operations, products, or services by their business relationships, even if they have not contributed to those impacts.[1]

In the context of company operations, the importance of respecting human rights arises most importantly from a concern for improving and doing no harm to human well-being. Company respect for human rights can also help mitigate risk to companies of reputational damage, delays, increased costs of doing business due to litigation and operational disruptions, needs for remediation, and other costs associated with failure to respect human rights.

1.1 The meaning of “rights of indigenous peoples and local communities”

Human rights are universal. Consequently, IP/LC rights are the same as those of other people; however, the law has evolved in terms of how universal human rights are interpreted and applied in the context of IP/LC.

Property is a key fundamental right of IP/LC. The IP/LC right to property includes formal and customary rights to IP/LC lands, resources, and territories, including the rights of ownership, use, possession, control, and administration. Throughout the remainder of this document, references to “property” and to the IP/LC “right to property” are used as shorthand for this more detailed description of the IP/LC right to property.

Experience demonstrates that when the property rights of IP/LC are impacted by agricultural and forestry supply chains, other fundamental rights of IP/LC are likely to be impacted as well. This is because of the special connection that IP/LC have with their property [2] and the extent to which the surrounding legal framework protects those rights and provides forums for their redress when violated. Most commonly, these other rights include the:

  1. Right to culture
  2. Right to a healthy environment
  3. Right to self-determination (including the right to define their own development priorities, maintain their own institutions, and self-governance)
  4. Right to life and physical integrity
  5. Right to be free from discrimination
  6. Right to adequate food
  7. Right to legal personality
  8. Right to access to an effective remedy
  9. Right to equality before the law
  10. Right to access to justice
  11. Right to be free from forced eviction (coerced or involuntary displacement)[3]
  12. Right to participate effectively and meaningfully in the decisions that may affect them, including the right to free, prior and informed consent (FPIC) where applicable

As applied to IP/LC, some of these rights are enjoyed and exercised by the collective (e.g., the right to property, culture, and self-determination), while others more typically apply to individual members of IP/LC (e.g., the right to life). All rights apply equally to all genders.

The above-mentioned rights have been affirmed and recognised by multiple binding international treaties and instruments ratified, acceded to, or otherwise endorsed by the overwhelming majority of the world’s nations. In some cases, these international instruments expressly mention “indigenous peoples,” such as the Indigenous and Tribal Peoples Convention, 1989 (No. 169) (International Labour Organization Convention 169) and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). In other cases, international conventions are more generally applicable, affirming the human rights of all persons. These conventions have been repeatedly interpreted to include IP/LC rights.

States have a duty to incorporate into their national laws and policies those measures necessary to respect, promote, and protect the rights affirmed in the international instruments to which they are a party. Companies should be familiar with and comply with these national laws. In any case, companies are expected to respect internationally recognised human rights even when national laws fail to guarantee them and even when governments fail to implement and enforce laws intended to protect them.

1.2 Conformance to the UN Declaration on the Rights of Indigenous Peoples

Core Principle 2.2.1 calls for companies to carry out operations consistent with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP is widely considered to be a compilation of the rights of indigenous peoples already affirmed in other binding and ratified treaties.[5] Taking steps to conform company activities to UNDRIP’s provisions and training relevant company personnel on the content of UNDRIP can help companies fulfil commitments to respect internationally-recognised human rights throughout their operations and supply chains.

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