FPIC and Transnational Corporations

Zurich-based NGO Incomindios hosted a lunch-time event on 14 July entitled "Free, Prior and Informed Consent: Difficulties and Successes with Transnational Corporations". Held in conjunction with the 4th Session of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), the event explored the concept and practice of free, prior and informed consent (FPIC) in the context of transnational corporations operating on Indigenous peoples' territories.

Lene Wendland (Office of the High Commissioner for Human Rights) discussed the United Nations Guiding Principles on Business and Human Rights, which were unanimously endorsed by the Human Rights Council on 16 June. The result of a 6-year consultative process, the guidelines focus on three pillars: the duty of states to protect against human rights violations; corporate responsibility to respect all human rights; and access to effective remedy. Alberto Saldamando (International Indian Treaty Council) highlighted the difficulties of upholding human rights through state mechanisms alone and called for direct examination of the behaviour of corporations themselves and upholding of high ethical standards, regardless of whether or not the state within which it operates requires such standards. He also recalled the definition of sustainable development as providing for the current generation without comprising the needs of future generations.

Vidulfo Rosales (Tlanchinollan) shared his experiences with community displacement in Mexico due to a power plant constructed by the government, and with mobilizing communities around the right to FPIC to stop the planned extraction of a Canadian mining company on their territories. He noted that even when the rights to consultation and consent are in law and policy, they are not upheld in practice if there is no political will; acknowledging that political will instead backs resource extraction, he emphasized the need for communities to know their rights and mobilize themselves ahead of any activities taking place.

Melik Ozden (CETIM Human Rights Program) highlighted the common elements of ILO 169, the United Nations Declaration on the Rights of Indigenous Peoples, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights: people have the right to choose their own development, to participate in decision-making, and to make decisions about their own resources and lands. He noted that conflicts between Indigenous peoples and corporations and/or states usually emerge because of lack of recognition of these fundamental human rights. Lamented the voluntary nature of international guidelines, he urged that even with "the best laws in the world, we still need to mobilize to ensure proper implementation". Following the presentations, discussion primarily centred around struggles to implement existing laws, policies, and frameworks, and encouraging strategies such as being locally organized, garnering the widest possible support through national, regional, and international fora, and engaging in public awareness campaigns.

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Advancing Dialogue on Treaties between States and Indigenous Peoples

The International Indian Treaty Council (IITC) hosted a lunch-time event on 13 July during the 4th Session of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP). The event was entitled "Advancing Dialogue on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Peoples within the UN System". It began by looking back at Indigenous peoples' participation in the United Nations, most notably, when Treaty Nations leaders were denied access to the League of Nations in 1923, and the 1974 Declaration of Continuing Independence of the Sovereign Native American Indian Nations. Presentations and discussion centered around the importance of treaties as sacred agreements and partnerships between Indigenous peoples and states, rooted in language, cultural tradition, and ceremony. They also called for greater international pressure upon states to implement existing treaties and agreements with Indigenous peoples, and to consider the effects of agreements between colonial governments and the successive governments on Indigenous peoples. Overall, it was stressed that treaties are an important part of Indigenous peoples' inherent rights to self-determination, survival, and well-being; they also enshrine responsibilities to and senses of connection with territories and future generations.

Recent recognition of treaties as having international standing can be found in Article 37 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); Article 23 of the OAS-proposed American Declaration on the Rights of Indigenous Peoples; and former Special Rapporteur Miguel Alfonso Martinez's "Study on treaties, agreements and other constructive arrangements between States and indigenous peoples". Speakers included Andrea Carmen, Chief Wilton Littlechild, Grand Chief Edward John, Jose Carlos Morales, Atayu Abdulani, and a representative from the UN Office of the High Commissioner for Human Rights.

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Indigenous Peoples' Traditional Knowledge and Intellectual Property

On 12 July, during the 4th Session of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), the World Intellectual Property Organization (WIPO) hosted a lunch-time event entitled "Indigenous Peoples' Traditional Knowledge and Intellectual Property". Wend Wendland (WIPO Traditional Knowledge Division) provided an overview of the conventional intellectual property rights system in relation to traditional knowledge, traditional cultural expressions, and genetic resources. While acknowledging that WIPO Member States are currently negotiating towards an international legal instrument in attempt to ensure the effective protection of these three things, he noted that intellectual property does not provide a holistic response to the need for protecting traditional knowledge and cultural expressions.

Les Malezer (National Congress of Australia's First Peoples) noted that the WIPO negotiations are only the second international process (after the Convention on Biological Diversity negotiations towards the Nagoya Protocol on Access and Benefit Sharing) to address Indigenous peoples' rights since the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). He argued that Indigenous peoples' rights are still not well-understood at the international and domestic levels and that international processes continue to ignore historical injustices and fundamental rights such as self-determination. He said that the rooting of international processes in the principle of state sovereignty fails to acknowledge customary rights and sovereignty over natural resources, as enshrined in UNDRIP.

Mattias Ahren (Saami Council) noted that Indigenous peoples don't view traditional knowledge, traditional cultural expressions, and genetic resources as particularly different from other subject matters that elicit formal rights. He used the CBD negotiations towards the Nagoya Protocol as an example of the inherent conflicts that arise when discussions around traditional knowledge and genetic resources are not rooted in fundamental human rights; he also reiterated Malezer's concern about the over-emphasis on state sovereignty and lack of recognition of Indigenous peoples' rights over genetic and natural resources. In addition, he noted that the oft-cited high participation rates of Indigenous peoples within the CBD generally applies only to the negotiations around Article 8(j) and that participation in the ABS negotiations was a significant issue. He indicated that the next aim is to secure direct rights over traditional knowledge, traditional cultural expressions, and genetic resources in the implementation of the Nagoya Protocol.

The question and answer session highlighted: the need to address issues of equity, historical injustices, benefit-sharing, and self-determined development; the fundamentally discriminatory nature of constitutions that presume state rights over resources (such as in Australia); and the concern that customary legal systems "will not be up to the task" of dealing with pressures of the market-based system.

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EMRIP Session on the Right to Participate in Decision-making

Natural Justice is attending the fourth session of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), which will take place in Geneva from 11-15 July. This session will focus on Indigenous peoples and the right to partcipate in decision-making. The provisional agenda, draft programme of work, and draft report are available online. EMRIP was established by the United Nations Human Rights Council in 2007 and is comprised of five independent experts on Indigenous peoples.

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Save Lamu Alliance Formed

The communities of Lamu, Kenya, have recently formed a new alliance to preserve the natural biodiversity and cultural heritage of their lands and seas. The alliance, which is known as Save Lamu, is made up of over 22 community-based organizations representing the Indigenous communities of Lamu. Their primary project is to develop a Bio-cultural Community Protocol (BCP) that will provide knowledge about the Indigenous communities living in Lamu County and their traditional methods of conservation, land tenure, use of natural resources, and economic activities. This document will provide the community with a tool to seek their rights under the Kenyan Constitution as well as regional and international laws. Through various activities, including their BCP, the Save Lamu Alliance is voicing the massive concern that the communities of Lamu have in relation to a 16 billion USD port development, which has been planned in their area without their input and adequate consultation. The proposed port development is also exacerbating land grabbing that continues to evict the indigenous communities from their traditional lands on which they have lived for up to 1000 years.

In May 2011, Save Lamu wrote to the Kenyan Minister of Lands requesting that he "place a freeze on all land transactions in the county until land reforms are put in place." The Minister has since responded to the concerns of the communities by "placing an embargo on land transactions on unalienated public or community land until there was an appropriate framework in the context of the new Constitution." This was recently reported in Nairobi's The Standard. Natural Justice, which has been working with the Lamu communities since August 2010, continues to support Save Lamu in its call for information and consultation from the Kenyan Government on the port development and for communities' rights over traditional lands and resources.

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Exploring Synergies between Protected Areas and ABS

From 6-8 July, Natural Justice, the United Nations Environment Programme (UNEP), and the International Union for Conservation of Nature (IUCN) are co-hosting an expert meeting to explore synergies between access and benefit sharing (ABS) and the governance and management of protected areas. The Nagoya Protocol on ABS was adopted in 2010 by the 10th Conference of the Parties to the Convention on Biological Diversity (CBD). Many countries have already developed or are in the process of developing legislation to enact the provisions. To date, there have been very few discussions or publications addressing the potential linkages between the Nagoya Protocol and the other processes and Programmes of Work under the CBD, both at the international policy level and within the domestic context of implementation. For example, the Programme of Work on Protected Areas (PoWPA), which was adopted in 2004 at the 7th COP, is generally seen as the CBD's most successful Programme, with specific and time-bound targets and progressive elements that address governance, participation, equity, and benefit-sharing. However, implementation of PoWPA is also lacking in many countries, particularly in aspects relating to Indigenous peoples and local communities.

Given the cross-cutting nature of the CBD's objectives to conserve, sustainably use, and equitably share benefits of biodiversity, it is imperative for the implementation of the Nagoya Protocol within domestic frameworks to be harmonized with existing frameworks on protected areas, among others. This meeting, held at the IUCN headquarters in Gland, aims to explore the potential synergies between protected areas and ABS in law, policy, and practice, potential conflicts and concerns, and how these could be addressed in practice.

The meeting report is available for download on the Natural Justice website.

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Deconstructing Protected Area Governance at IUCN

From 4-5 July, Holly Shrumm (Natural Justice) attended a meeting at the International Union for Conservation of Nature (IUCN) headquarters in Gland about a draft resource kit on protected area governance. This kit, which will include a content-focused guide and a training-of-trainers guide, has been under development by partners from the IUCN Secretariat, the IUCN Commission on Environmental, Economic and Social Policy (CEESP), the IUCN World Commission on Protected Areas (WCPA), and the German development cooperation organization (GIZ). It explores a variety of issues including the emergence and realization of the new conservation paradigm since the 2003 World Parks Congress; the Programme of Work on Protected Areas (PoWPA) under the  Convention on Biological Diversity (CBD) and relevant CBD Decisions; protected areas management types and governance categories; and a compilation of case studies, resources, and tools.

The meeting was intended to bring together different partners who have been involved in the development of the kit to revisit what has been accomplished so far and to chart a way forwards. It is intended to be ready for use in regional PoWPA training workshops in collaboration with the CBD Secretariat in 2012.

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