10
care must be taken to anticipate, prevent and remedy negative effects on
vulnerable groups …
78
In 2013, former Special Rapporteur Anaya concluded: "Within established doctrine of international
human rights law, and in accordance with explicit provisions of international human rights treaties,
States may impose limitations on the exercise of certain human rights, such as the rights to
property".
79
Anaya added:
In order to be valid, however, the limitations must comply with certain standards
of necessity and proportionality with regard to a valid public purpose, defined
within an overall framework of respect for human rights.
80
Article 46(2) of the
UN Declaration calls for a human rights-based approach: "In the exercise of the
rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be
respected." It then sets out allowable limitations on the exercise of the rights of Indigenous peoples
and individuals:
The exercise of the rights set forth in this Declaration shall be subject only to such
limitations as are determined by law and
in accordance with international human
rights obligations. Any such limitations shall be
non-discriminatory and
strictly
necessary solely for the purpose of securing due recognition and respect for the
rights and freedoms of others and for meeting the just and most compelling
requirements of a democratic society.
81
5.
Business, human rights and FPIC
In regard to resource development, business enterprises have a responsibility to respect
internationally recognized human rights.
82
This would include Indigenous peoples' rights affirmed
in the
UN Declaration.
83
Companies should "[e]xercise due diligence so as to avoid becoming
complicit in human rights violations committed by host governments".
84
As emphasized by Special Rapporteur Anaya, due diligence includes “ensuring that corporate
behaviour does not infringe or contribute to the infringement of the rights of indigenous peoples ...
regardless of the reach of domestic laws."
85
In
Implementing a Corporate Free, Prior, and Informed Consent Policy: Benefits and Challenges,
the authors described in 2010 the benefits of obtaining FPIC from a business perspective:
… given the recent momentum regarding FPIC on the international stage, gaining
consent through a formal and documented process may provide a stronger license
to operate than a typical engagement process. … The process may better assure
that, despite changes in government and political trends, the company will not
become a target due to local opposition to its project.
86
In 2012, the International Finance Corporation (IFC) adopted “Performance Standard 7: Indigenous
Peoples”. This Standard requires FPIC to be obtained in regard to lands that are traditionally owned
11
or under customary use by Indigenous peoples; relocations; significant unavoidable impacts on their
critical cultural heritage; and where cultural heritage including their knowledge, innovations, or
practices are used for commercial purposes.
87
In 2013, the United Nations Global Compact published a detailed “Business Reference Guide” on
the UN Declaration.
88
The Guide highlights: “The concept of free, prior and informed consent … is
fundamental to the UN Declaration as a measure to ensure that indigenous peoples’ rights are
protected.”
89
The Guide adds:
The concept of a State’s FPIC obligation is well enshrined in international law.
90
The independent corporate responsibility to respect indigenous peoples’ rights
gives rise to opportunities for business to partner with governments and
indigenous peoples to advance FPIC practices.
91
FPIC should be obtained whenever there is an impact on indigenous peoples’
substantive rights (including rights to land, territories and resources, and rights to
cultural, economic and political self-determination).
92
In 2013, the International Council on Mining and Metals (ICMM) issued a new position on
“Indigenous Peoples and Mining”:
In ICMM’s view, FPIC comprises a process, and an outcome. … The outcome is
that Indigenous Peoples can give or withhold their consent to a project, through a
process that strives to be consistent with their traditional decision-making
processes while respecting internationally recognized human rights and is based
on good faith negotiation.
93
The Boreal Leadership Council emphasized in 2015 the need for a consensual approach to resource
developments in Canada:
The trend towards the need and expectation of establishing effective and lasting
agreements with affected Indigenous communities as part of major project
development is clear. From recognition through international law, to national
court decisions, and the increasing number of voluntary industry codes and
policies, the role of FPIC-related processes is a growing part of the landscape.
94
In 2015, the Truth and Reconciliation Commission called upon the corporate sector in Canada “to
adopt the United Nations Declaration on the Rights of Indigenous Peoples as a reconciliation
framework and to apply its principles, norms, and standards to corporate policy and core operational
activities involving Indigenous peoples and their lands and resources.”
95
This would include, inter
alia, the following Call to Action:
Commit to meaningful consultation, building respectful relationships, and
obtaining the free, prior, and informed consent of Indigenous peoples before
proceeding with economic development projects.
96