Category Archives: Indigenous Peoples

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: a decision by the Ontario Superior Court of Justice addressing a corporation’s “duty of care” with regard to the employees of its suppliers; new IBA guidance for lawyers on integrating business and human rights considerations into their advice to clients; and a report evaluating corporate conflict minerals filings for calendar year 2016.… More

D.C. District Court Determines that Dakota Access Environmental Assessment was Inadequate

On June 14, 2017, the District Court for the District of Columbia issued a decision in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. The Court found that the Army Corps of Engineers (“the Corps”) had not adequately considered several issues in its environmental assessment (“EA”) for the Dakota Access Pipeline, and that therefore the Corps’ decision-making was arbitrary and capricious.

The EA was undertaken pursuant to the National Environmental Policy Act (“NEPA”),… More

Foley Hoag Authors Good Practice Note on Indigenous Peoples’ Rights and Free, Prior, and Informed Consent

Indigenous handsThe U.N. Global Compact recently released a Good Practice Note on Indigenous Peoples’ Rights and the Role of Free, Prior, and Informed Consent (“FPIC”) authored by Amy Lehr, an associate in Foley Hoag’s Corporate Social Responsibility practice. The Note complements the U.N. Global Compact’s release of a longer Business Reference Guide to the U.N. Declaration on the Rights of Indigenous Peoples. … More

Agricultural Sector Companies Face Increased Scrutiny on Human Rights-Related Risks

Tomatoes in a wooden bowlAgricultural sector companies, and companies with large agricultural supply chains, face new scrutiny from investors and other stakeholders concerning human rights-related risks in their corporate supply chains. Key issues for this sector include the risks of human trafficking and forced labor and the potential for suppliers to be complicit in land grabs which displace vulnerable populations.

In early December, a group of faith-based and socially responsible investors announced that they would launch a campaign in January 2014 urging fifteen companies in the food-agricultural and hospitality sectors to take steps to address risks of human rights abuses in their corporate supply chains.… More

Land Tenure Risk: Why It Matters for Companies, Investors, and Communities

Sugar cane fieldTwo important new reports focus on land tenure conflicts between companies and communities.

In September, the Rights and Resources Initiative released a report entitled, “Global Capital, Local Concessions: A Data-Driven Examination of Land Tenure Risk and Industrial Concessions in Emerging Market Economies.” The report, drafted by the Munden Project, attempts to quantify the percentage of company land concessions that overlap community (particularly indigenous) claims,… More

ICMM Releases Position Statement on Indigenous Peoples Establishing Commitment to FPIC

3259282The International Council of Mining & Metals (“ICMM”) recently released a position statement on indigenous peoples and mining that explicitly requires its 22 member companies to work to obtain the free, prior, and informed consent (“FPIC”) of indigenous communities for new projects (and changes to existing projects).

Specifically, ICMM member companies commit to:

Work to obtain the consent of indigenous communities for new projects (and changes to existing projects) that are located on lands traditionally owned by or under customary use of Indigenous Peoples and are likely to have significant adverse impacts on Indigenous Peoples[.]

The position statement replaces an earlier statement,… More

Social Risk Assessment: China Raises Its Game

Until recently, it was not uncommon for Chinese companies to be invoked as bogeymen in certain circles. The narrative went something like this:

Western companies are more accountable than Chinese companies – via tort suits, civil society pressure, government regulation, and non-judicial accountability mechanisms such as the OECD Guidelines, to name a few.  Although Western companies’ operations do create negative social, environmental and human rights impacts,… More

The Revised Equator Principles Call on Companies to Seek Free, Prior, and Informed Consent. Next up: Governments?

Indigenous handsThe new draft Equator Principles reflect and build upon the IFC Performance Standards’ requirement that companies obtain the free, prior, and informed consent (“FPIC”) of indigenous peoples for development projects. This language reflects the UN Declaration on the Rights of Indigenous Peoples (“UNDRIP”), which was supported by all but four countries in the UN General Assembly in 2007. The four countries that originally voted against the Declaration – the United States,… More

Newly Released Draft Equator Principles Reflect Greater Focus on Human Rights

The proposed draft of the revised Equator Principles, released on August 13, reflects a greater focus on human rights, with explicit mention of the expectation of human rights due diligence as set forth in the U.N. Guiding Principles on Business and Human Rights. The revised Principles also cover a wider range of project financing structures in recognition of the fact that the project finance market has diversified significantly since the Principles were first released in 2003.… More

The 2012 IFC Performance Standard on Indigenous Peoples: What’s the Fuss?

The new IFC Environmental and Social Performance Standards — in particular, Performance Standard 7 on indigenous peoples — present a range of management and operational challenges for certain companies. For the first time, the Performance Standard includes a requirement of free, prior, and informed consent (“FPIC”) from indigenous peoples.

The new Performance Standards went into effect in January 2012 and are applicable to a greater number of the IFC’s investments than the 2006 Performance Standards,… More

The IFC Performance Standards and Consultation with Communities

As discussed in an earlier post, the International Finance Corporation ("IFC") recently released an updated version of its Performance Standards on Environmental and Social Sustainability.  The IFC uses the Performance Standards to manage the social and environmental risks and impacts associated with projects receiving IFC financing.  The revised Standards reflect a number of important changes, particularly on the topic of engaging with communities, with special guidance related to indigenous peoples. … More

International Finance Corporation Releases Revised Sustainability Framework

The International Finance Corporation ("IFC") released its updated Sustainability Framework today, reflecting changes adopted by the IFC’s Board of Directors in May 2011. The Framework includes the IFC’s Policy and Performance Standards on Environmental and Social Sustainability.  The updates reflect a number of important changes, including both the scope of Framework’s application and the nature of the substantive requirements for borrowers. The new Framework will be effective on January 1, 2012.

Notably,… More

Looking Ahead: Indigenous Peoples and Free, Prior, and Informed Consent

2010 was a big year for indigenous rights. By the end of the year, the four countries that had voted against the U.N. Declaration on the Rights of Indigenous Peoples (“UNDRIP”) in 2007 – the United States, Canada, Australia, and New Zealand – had reversed their positions and declared their support for the Declaration. This development reflects the rising importance of indigenous rights on the international stage,… More

Ninth Circuit Reverses Dismissal of Carijano v. Occidental Petroleum

Early last week, the Ninth Circuit Court of Appeals revived a tort case brought by 25 members of the Peruvian Achuar indigenous group and Amazon Watch against Occidental Petroleum ("Occidental").  Plaintiffs allege that the company’s operations in the Peruvian Amazon resulted in severe contamination of the land and rivers in the region and that, as a result, they have suffered adverse health effects and negative impacts on their livelihoods.… More

ICMM Releases Good Practice Guide on Indigenous Peoples and Mining

The new Good Practice Guide – Indigenous Peoples and Mining released by the International Council on Mining & Metals (“ICMM”) should prove informative to a wide variety of stakeholders concerned the impacts of corporate activities on indigenous communities.  The topics covered by the guide include: engagement and consultation; impact assessments and baseline studies; negotiated agreements; benefit sharing; and grievance mechanisms.

ICMM produced the guide for companies in the mining industry,… More

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.… More

New Report on Free, Prior, and Informed Consent

Foley Hoag recently released a ground-breaking report on the relationship between companies and indigenous peoplesTalisman Energy commissioned this report at the request of two responsible investors, Bâtirente and Regroupement pour la responsabilité sociale des entreprises (“RRSE”).  The World Resources Institute (“WRI”), a think tank and thought leader on indigenous rights, was asked to provide a third party commentary on it. … More