Who are Indigenous Peoples?
There are 476.6 million indigenous peoples globally, of which 238.4 million are women and 238.2 million men, according to the International Labour Organization (ILO). In countries such as Bolivia and Guatemala, indigenous peoples represent the majority or a significant majority of people, while in others, such as Finland and Canada, they represent small minorities. Some countries contain hundreds of distinct peoples and language groups, while others contain only a few major groupings.
Indigenous peoples have the same rights as the rest of the populations, however, they also have specific rights because of their particular historical, cultural and social characteristics. The UN Declaration on the Rights of Indigenous Peoples and ILO Convention No. 169 on Indigenous and Tribal Peoples outline these specific rights and provide for individual and collective rights of indigenous peoples in a comprehensive manner. Indigenous peoples’ rights are not “special rights”, but are articulations of universal human rights as they apply to indigenous peoples.
One of the key standards for State institutions under international instruments is to ensure that no decision affecting indigenous peoples is taken without consulting them, with a view to obtaining their free, prior and informed consent (FPIC). Although various interpretations of FPIC among Governments and indigenous peoples can cause practical challenges (particularly with respect to issues of land and resource rights and cultural heritage), the right of indigenous peoples to be consulted is firmly established under international law.
What is the Dilemma?
The dilemma for business is how to pursue profitable activities that have an inherently significant physical, social or cultural impact without undermining the rights of indigenous peoples. The challenge is compounded when working in countries with poor legal protections for indigenous peoples that often drive the widespread occurrence of indigenous land rights conflicts. In these instances, companies may find themselves linked to indigenous rights violations, perhaps due to poor standards of consultation as outlined under national laws or operating in indigenous territories that have not been recognized by the State or local governments.
For example, resource extraction may be located in areas where the rights of indigenous peoples have not been fully documented or recognized. Such high-impact activities are likely to infringe on the rights of indigenous peoples, including their right to traditional lands, or negatively affect their livelihoods or way of life by impeding their access to resources such as water, or to areas of cultural and spiritual significance. Poor management of resource extraction can also lead to severe consequences for the right to health, for example in the mismanagement of tailings disposal.
Prevalence of Violations of Indigenous Peoples’ Rights
Based on data available for 23 countries representing 83% of the global indigenous population, the ILO found that indigenous peoples constitute 9.3% of the population in these countries but almost 19% of the extreme poor. The UN has also reported that as many as 33% of all people living in extreme rural poverty globally are from indigenous communities, despite the fact that natural resources are often found within indigenous territories.
Key trends include:
- The ILO report found that the quality of indigenous peoples’ employment is often poor. Indigenous peoples are 20% more likely to be in the informal economy than non-indigenous peoples and are considerably less likely to be in salaried and wage work.
- Additionally, according to ILO, indigenous women are less likely to be employed as national income levels rise. In upper middle-income countries, indigenous women have less chance of being employed compared to their non-indigenous counterparts with just 52.1% of indigenous women in employment.
- Increasing economic development is exacerbating the situation for many indigenous communities, who face forced displacement and land grabs. The UN has found that the situation for indigenous human rights defenders is deteriorating, with increased attacks and criminalization. Opposition from organized indigenous groups and activist networks can in turn have serious operational or reputational impacts on business (see ‘Impacts on Businesses’).
- The COVID-19 pandemic has had significant impacts on indigenous peoples. A joint report by the ILO and the International Work Group for Indigenous Affairs (IWGIA) identified that pre-existing barriers in access to health, social security and education are fuelling disproportional impacts of the pandemic on indigenous peoples. The report also found a rise in food insecurity, related to a lack of access to land and natural resources and the loss of livelihoods.
- However, in the last decade, indigenous issues have been receiving higher levels of visibility at the international level, including through mechanisms such as the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), the United Nations Permanent Forum on Indigenous Issues (UNPFII) and the Special Rapporteur on the rights of indigenous peoples. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has also been supported by most States.
Impacts on Businesses
Businesses can be impacted by allegations of violations of indigenous peoples’ rights in their operations and supply chains in multiple ways:
- Legal risk: Companies found to be complicit in indigenous peoples’ rights violations in countries with well-established legislation and effective enforcement are likely to face serious legal repercussions. Failure to sufficiently comply with standards of consultation with indigenous groups can carry litigation risks. Legal risks are further exacerbated if linked to serious abuses of indigenous groups and environmental degradation.
- Operational risk: Companies involved in projects that do not sufficiently address indigenous grievances may face operational disruptions in the form of blockades or other forms of boycott. Cases of indigenous communities leading blockades have in the past resulted in workers being unable to access work sites. In extreme examples, blockades and protests have resulted in a moratorium on proposed projects — as can be seen in the Baram River dam project in Sarawak, Malaysia. In another high-profile case, increasing media scrutiny and indigenous activism on the Juukan Gorge caves incident, in Australia, have resulted in the cessation of mining activity and the resignation of the responsible company’s CEO, Chairman and other senior executives.
- Reputational and brand risk: Companies may face reputational damage if they are found to be linked to instances of indigenous rights violations. Indigenous groups and civil society groups that campaign on their behalf have been successful at shining a spotlight on corporate complicity in human rights abuses. This often results in severe reputational consequences, negative media coverage and brand contamination.
- Financial risk: Scrutiny arising out of activist campaigns or negative press coverage of companies found to be involved in infringements of indigenous peoples’ rights can result in shareholder or investor pressure. Divestment and/or avoidance by investors and finance providers (many of which are increasingly applying environmental, social and governance (ESG) criteria to their decision-making) can result in reduced or more expensive access to capital.
Impacts on Human Rights
Restrictions to indigenous peoples’ rights have the potential to impact a range of human rights, including but not limited to:
- Right to self-determination (UNDRIP, Article 3; ICCPR, ICESCR, Article 1): Indigenous peoples are often not able to participate fully in public life and are rarely pivotal in decision-making bodies of the State or senior levels of Government. Indigenous peoples have far less political leverage than other groups of society.
- Right to enjoy equality and non-discrimination (UNDRIP, Article 2; ILO Convention 169, Articles 3, 21 and 26): Indigenous peoples (particularly indigenous women) are often discriminated in their access to employment, education and vocational training.
- Right to be secure in subsistence and development (UNDRIP, Article 20): Indigenous peoples’ lands have been disproportionately affected by development activities because they often contain valuable natural resources including timber, minerals, biodiversity resources, water and oil. Land and resource issues are often at the crux of tensions between indigenous communities and the general population.
- Right to traditional lands, territories and resources (UNDRIP, Article 26; ILO Convention 169, Articles 5, 14 and 15): Lands and territories have material, cultural and spiritual dimensions for indigenous peoples. They are required for their survival and economic sustainability and are intrinsically linked to the identity and existence of communities. The social, cultural, religious and spiritual values and practices of indigenous peoples should be recognized and protected.
- Right to conservation and protection of environment and productive capacity of lands, territories and resources (UNDRIP, Article 29): Many indigenous peoples are highly dependent on their lands and natural resources and any changes to the ecosystem may impact their way of life and survival. Environmental degradation can result in serious impoverishment in indigenous communities due to their strong reliance on the local ecosystem for their livelihoods.
- Right to determine and develop priorities and strategies for development (UNDRIP, Articles 20, 23 and 32; ILO Convention 169, Articles 7 and 16): Indigenous peoples should have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or use.
- Right to retain own customs and institutions (UNDRIP, Articles 5, 8 and 11; ILO Convention 169, Articles 8 and 9): Where the customs and traditions of indigenous peoples are not incompatible with fundamental rights defined by the national legal system and with internationally recognized human rights, these should be protected and procedures should be established to resolve related conflicts.
Sustainable Development Goals (SDGs)
The 2030 Agenda for Sustainable Development, based on the central principle of ‘leave no one behind’, directly references indigenous peoples in two SDG targets. Many of the SDGs and associated targets are relevant for indigenous peoples’ rights, even if they are not explicitly mentioned. For instance, the following goals are of particular relevance to indigenous peoples:
- Goal 5 (“Achieve gender equality and empower all women and girls”)
- Goal 10 (“Reduce inequality within and among countries”)
- Goal 14 (“Conserve and sustainably use the oceans, seas and marine resources for sustainable development”)
- Goal 15 (“Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss”)
In addition, two SDG targets explicitly reference indigenous peoples:
- Goal 2 (“End hunger, achieve food security and improved nutrition and promote sustainable agriculture”), Target 2.3: By 2030, double the agricultural productivity and incomes of small-scale food producers, in particular women, indigenous peoples, family farmers, pastoralists and fishers, including through secure and equal access to land, other productive resources and inputs, knowledge, financial services, markets and opportunities for value addition and non-farm employment
- Goal 4 (“Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all”), Target 4.5: By 2030, eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including persons with disabilities, indigenous peoples, and children in vulnerable situations
The following resources provide further information on how businesses can identify and address violations of indigenous peoples’ rights in their operations and supply chains:
- United Nations Global Compact, A Business Reference Guide: United Nations Declaration on the Rights of Indigenous Peoples: This is a valuable resource for businesses to understand, respect and support the rights of indigenous peoples.
- Global Compact Network Australia (GCNA), The Australian Business Guide to Implementing the UN Declaration on the Rights of Indigenous Peoples: This guide is specifically targeted to Australian businesses with the GCNA having collaborated with the Indigenous Australian community. It provides practical advice about how executives and companies can understand, respect and embed the rights of Indigenous Australians into their daily operations.
- ILO, Understanding the Indigenous and Tribal Peoples Convention: This guide is a practical tool for ILO Constituents, including workers’ and employers’ organizations, to better understand the relevance, scope and implications of ILO Convention No. 169.