Consultation Obligations and the Rights of Indigenous Peoples

On August 9, many people around the world will observe International Day of the World’s Indigenous People, which was first established by the United Nations in 1994.   This year, many stakeholders are using the opportunity to urge the United States to endorse the U.N. Declaration on the Rights of Indigenous Peoples.  As was noted in an earlier post,  the United States government is undertaking a formal review of its position on the Declaration.

Members of the socially responsible investment community have been among the many groups urging the United States to endorse the Declaration.  Calvert Investments, a investment company which manages over $14.5 billion in assets, recently observed, in a letter to Secretary of State Hillary Clinton (.pdf), that U.S. support for the Declaration might "allow more companies to be responsive to our requests to develop policies and programs to promote Indigenous Peoples’ rights or to publicly disclose those that are already established as a model for others."

As discussed in our recent report on free, prior, and informed consent, the Declaration on the Rights on Indigenous Peoples is soft law, not legally binding on states, but the rights and values set forth within the Declaration are increasingly being recognized by national governments. 

Companies, especially those in the extractive sectors, should be familiar with the key international instruments recognizing the rights of indigenous peoples, including both the Declaration and ILO Convention No. 169.   Familiarity with the requirements of these international standards is essential to effective engagement with a wide range of stakeholders. 

Ultimately, companies will be most impacted by the ways in which these standards are integrated into national legislation and regulations.  It is crucial that companies understand national-level requirements, especially regarding indigenous peoples’ consultation rights, as set forth in legislation, regulations, administrative guidelines, and court decisions.  Recent national level developments include:

Failure to understand and integrate current requirements regarding consultation with indigenous peoples, or to anticipate future changes that may have retroactive effect, could be quite costly for companies.  For example, in 2003, the South African Constitutional Court found that the Richtersveld indigenous community had a right of communal ownership to land which South Africa had granted to Alexkor Ltd., a diamond mining company. The Court ordered the land returned to the community.  

Failure to consult with indigenous populations can lead to significant reputational, as well as legal, liability.  A recent report (.pdf) by EIRIS, an investment research firm, observed that, by failing to adequately consult with indigenous communities in Orissa, India before proceeding with plans to develop a bauxite mine, Vedanta Resources had subjected itself to intense scrutiny, as well as several divestment actions, on the part of major investors. 

In light of the increasingly clear expectations of the international community, and well as the requirements of national law, companies engaged in operations that have, or may, impact indigenous populations are well-advised to verify that their activities have been conducted in a manner consistent with relevant consultation requirements. 

One thought on “Consultation Obligations and the Rights of Indigenous Peoples

  1. Aloha All

    Lets be clear the Indigenous Peoples and the native Treaty Kingdoms are the rightholders the occupiers are the stakeholders. We need an International Tribunal that will protect the sacred areas, districts and sites from piecemeal destruction using Occupying Rogue Nations legislation’s to benevolently and malevolently water down the already existing rights given to Occupied Nation-States to further enrich the rogue Nation States corporate stakeholders by the continued suppression through brainwashing by the occupying stakeholders.
    The Sovereign and Neutral Nation State of Hawaii sacred lands, fresh waters, minerals, manganese nodules and crust, etc…with the military occupation of our sacred mountain Mauna Kea and lower areas of Pohakuloa are being destroyed
    and the air, land and fresh water have been poisoned. The EIS from the Observatories and Army for Pohakuloa have stated that irreparable damage will happen whole scale, but piecemeal buffer lands in and around our sacred area that is our whole sacred area have been separated for use. We hope to end this gross “conflict of interest” by the thief occupier to make claims of saving the sacred lands by destroying the lands around and in the sacred area, district and sites.

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