22. INDIGENOUS PEOPLE

TUY Sophorn, RADU Mares

Introduction

Indigenous people are under human rights law recognized as a vulnerable group in need of special protections. Specific to their situation is their culture and identity, which is intrinsically linked to the land and natural resources they have used for centuries. Indigenous people are directly affected by developmental projects that are meant to integrate them in mainstream modern society, or by industrial activities (extractive industries such as mining, oil and gas (chapter 28), forestry or other large infrastructure projects such as dams). This poses a grave danger to indigenous peoples’ way of life and their very survival as a group and as individuals. The main international standard in this area is ‘free, prior and informed consent’ (FPIC) that requires indigenous people to be actively engaged in economic decisions affecting their life. Under law, the FPIC it is not a right to veto but neither it is merely about providing some information and a brief consultation. It is a rigorous process of consultation requiring serious and good-faith efforts to reach an agreement. The ILO and the UN adopted international instruments for indigenous people and there is significant jurisprudence from the regional human rights systems (Inter-American and European systems) (chapter 6). They protect important interests through the right to land (chapter 25), right to benefit-sharing from economic activities (chapter 5), and cultural rights. Leading companies increasingly recognize the high vulnerability of this group and implement ‘enhanced’ due diligence measures commensurate with high risks of harm (chapters 7-14). Violence against leaders of indigenous peoples, and human rights defenders and environmental defenders more broadly, is a pervasive phenomenon. Companies are increasingly expected to protect such defenders as part of their social responsibility.

There are 24 different indigenous peoples in Cambodia and the estimated population is between 200,000 and 400,000. Cambodia ratified the relevant UN treaty – the Convention International Convention on the Elimination of All Forms of Racial Discrimination (CERD) – in 1983. In article 5, the CERD obligates ratifying states ‘to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law…’. Cambodia has however not ratified the ILO treaty on this issue, that is, the Indigenous and Tribal Peoples Convention, 1989 (No. 169).

Main Aspects

• Criteria for indigenousness (self-identification, descent, distinct circumstances)
• Individual and collective rights
• Sovereignty of states and self-determination of indigenous people
• Right to development  (including to develop priorities and strategies for development)
• Intellectual property rights
• Environmental protection and conservation
• Free prior informed consent (FPIC) (unanimity, veto?)
• Consultation process
• Right to land and land tenure systems
• Ownership of resources (subsurface resources and other)
• Remedies and compensation for resources
• Right to return to traditional lands (following displacement once the reason for displacement ceases)
• Respect for the laws, customs and institutions of indigenous peoples (and their compatibility with international human rights)
• Gender equality
• Cultural diversity and common heritage of humankind
• Impact assessment (social, spiritual, cultural and environmental impacts)
• Benefit sharing (from exploitation of natural resources)
• Participatory monitoring (of compliance with agreements)
• Indigenous communities (divisions, dissent, representativeness)

Background

IFC, Guidance Note 7 – Indigenous People^[1]

GN2. Many Indigenous Peoples’ cultures and identities are inextricably linked to the lands on which they live and the natural resources on which they depend. In many cases, their cultures, identities, traditional knowledge, and oral histories are connected to, and maintained through the use of, and relationships with, these lands and natural resources. These lands and resources may be sacred or have a spiritual significance. Use of sacred sites and other places of cultural significance may have important functions for the conservation and sustainable use of the natural resources upon which Indigenous Peoples rely for their livelihoods and well-being. Thus, project impacts on lands, forests, water, wildlife, and other natural resources may affect their institutions, livelihoods, economic development, and their ability to maintain and develop their identities and cultures. (…)

GN7. The Performance Standard applies to groups or communities of Indigenous Peoples who maintain a collective attachment to distinct habitats or ancestral territories, and the natural resources therein. This may include:

• Communities of Indigenous Peoples who are resident upon the lands affected by the project as well as those who are nomadic or who seasonally migrate over relatively short distances, and whose attachment to ancestral territories may be periodic or seasonal in nature;
• Communities of Indigenous Peoples who do not live on the lands affected by the project, but who retain ties to those lands through traditional ownership and/or customary usage, including seasonal or cyclical use. This may include Indigenous Peoples resident in urban settings who retain ties to lands affected by a project;
• Communities of Indigenous Peoples who have lost collective attachment to lands and territories in the project area of influence, occurring within the concerned group members’ lifetime, as a result of forced severance, conflict, involuntary resettlement programs by governments, dispossession from their lands, natural calamities or incorporation into an urban area but who retain ties to lands affected by a project;
• Groups of Indigenous Peoples who reside in mixed settlements, such that the Affected Indigenous Peoples only form one part of the more broadly defined community; or
• Communities of Indigenous Peoples with collective attachment to ancestral lands located in urban areas.

GN17. Clients should adopt ICP approaches that build upon existing customary institutions and decision-making processes utilized by the Affected Communities of Indigenous Peoples. However clients should assess the capacity of the existing institutions and decision-making processes to deal with the wide array of new issues introduced by the project. In many situations, projects introduce issues that existing institutions and decision-making processes are poorly equipped to address. Inadequate capacity and experience may result in decisions and outcomes that have detrimental consequences for the Affected Communities and project relations with them. Specifically, poor processes, decisions, and outcomes may lead to challenges to existing institutions, decision-making processes, and recognized leadership, and to disputes over agreements between the Affected Communities of Indigenous Peoples and the project. Building awareness and capacity to address issues that can reasonably be predicted to occur can strengthen both Affected Communities and project agreements with them. Such capacity building can be done in a number of ways, including but not limited to involving competent local organizations such as civil society organizations (CSOs) or government extension agencies; contracting with academic or research organizations undertaking applied or action research involving communities; linking up with existing support programs for local communities run by government or other agencies; and providing resources and technical support for local municipal authorities in facilitating community engagement and strengthening.

GN18. Clients should keep in mind that the communities of Indigenous Peoples are not necessarily homogeneous and there can be divergent views and opinions within them. Experience demonstrates that: the views of the traditional elders or leaders may differ from those who have received formal education; the views of the elderly may differ from those of the youth; and the views of men may differ from women. Nonetheless in many cases, community elders or leaders, who are not necessarily the elected officials of these communities, play a key role. Furthermore, some segments of the community such as women, youth, and the elderly, may be more vulnerable to project impacts than others. The consultation should take into account the interests of these segments in the community while being cognizant of traditional cultural approaches that may exclude segments of the community from the decision-making process.

GN19. The ICP processes with and within Affected Communities of Indigenous Peoples will frequently span an extended period of time. Providing adequate information to the members of the indigenous community about a project’s potential adverse impacts and proposed minimization and compensation measures may involve an iterative process involving various segments of the community. Thus, (i) consultation should start as early as possible in the risks and impacts assessment process; (ii) client engagement processes should aim to ensure that the entire population of Affected Communities of Indigenous Peoples is aware of and understands the risks and impacts associated with project development; (iii) project information should be made available in an understandable format, using indigenous languages where appropriate; (iv) the communities should have sufficient time for consensus building and developing responses to project issues that impact upon their lives and livelihoods; and (v) clients should allocate sufficient time to fully consider and address Indigenous Peoples’ concerns and suggestions about the project in the project design and implementation.

Instruments

UN Declaration on the Rights of Indigenous Peoples^[2]

Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such,

Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind,

Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust,

Recognizing and reaffirming that indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples,

Article 5 – Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 7 – (…) Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

Article 10 – Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 23 – Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 29 – Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination. (…)

Article 31 – Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage… They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. (…)

Article 44 – All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.

Article 46 – Nothing in this Declaration may be interpreted as … authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

ILO Indigenous and Tribal Peoples Convention^[3]

Recognising the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live, and

Noting that in many parts of the world these peoples are unable to enjoy their fundamental human rights to the same degree as the rest of the population of the States within which they live, and that their laws, values, customs and perspectives have often been eroded, and

Calling attention to the distinctive contributions of indigenous and tribal peoples to the cultural diversity and social and ecological harmony of humankind and to international co-operation and understanding, 

Article 1

1. This Convention applies to:

(a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.

Article 6

2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.

Article 7

3. Governments shall ensure that, whenever appropriate, studies are carried out, in co-operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. (…)

Article 8

1. In applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws.

2. These peoples shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognised human rights. Procedures shall be established, whenever necessary, to resolve conflicts which may arise in the application of this principle.

Article 14

1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect. (…)

Article 15

2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.

Article 16

1. Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy.

2. Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.

3. Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist.

4. When such return is not possible, as determined by agreement or, in the absence of such agreement, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees.

5. Persons thus relocated shall be fully compensated for any resulting loss or injury.

IFC, Performance Standard 7 on Indigenous People^[4]

1. Performance Standard 7 recognizes that Indigenous Peoples, as social groups with identities that are distinct from mainstream groups in national societies, are often among the most marginalized and vulnerable segments of the population. In many cases, their economic, social, and legal status limits their capacity to defend their rights to, and interests in, lands and natural and cultural resources, and may restrict their ability to participate in and benefit from development. Indigenous Peoples are particularly vulnerable if their lands and resources are transformed, encroached upon, or significantly degraded. Their languages, cultures, religions, spiritual beliefs, and institutions may also come under threat. As a consequence, Indigenous Peoples may be more vulnerable to the adverse impacts associated with project development than nonindigenous communities. This vulnerability may include loss of identity, culture, and natural resource-based livelihoods, as well as exposure to impoverishment and diseases.

4.-5. There is no universally accepted definition of “Indigenous Peoples.” (…) In this Performance Standard, the term “Indigenous Peoples” is used in a generic sense to refer to a distinct social and cultural group possessing the following characteristics in varying degrees:

• Self-identification as members of a distinct indigenous cultural group and recognition of this identity by others;
• Collective attachment to geographically distinct habitats or ancestral territories in the project area and to the natural resources in these habitats and territories;
• Customary cultural, economic, social, or political institutions that are separate from those of the mainstream society or culture; or
• A distinct language or dialect, often different from the official language or languages of the country or region in which they reside.

Avoidance of Adverse Impacts

9. Adverse impacts on Affected Communities of Indigenous Peoples should be avoided where possible. Where alternatives have been explored and adverse impacts are unavoidable, the client will minimize, restore, and/or compensate for these impacts in a culturally appropriate manner commensurate with the nature and scale of such impacts and the vulnerability of the Affected Communities of Indigenous Peoples. The client’s proposed actions will be developed with the ICP [Informed Consultation and Participation] of the Affected Communities of Indigenous Peoples and contained in a time-bound plan, such as an Indigenous Peoples Plan, or a broader community development plan with separate components for Indigenous Peoples.

Participation and Consent

10. The client will undertake an engagement process with the Affected Communities of Indigenous Peoples as required in Performance Standard 1. This engagement process includes stakeholder analysis and engagement planning, disclosure of information, consultation, and participation, in a culturally appropriate manner. In addition, this process will:

• Involve Indigenous Peoples’ representative bodies and organizations (e.g., councils of elders or village councils), as well as members of the Affected Communities of Indigenous Peoples; and
• Provide sufficient time for Indigenous Peoples’ decision-making processes. (…)

12. There is no universally accepted definition of FPIC [Free, Prior, and Informed Consent] … FPIC builds on and expands the process of ICP described in Performance Standard 1 and will be established through good faith negotiation between the client and the Affected Communities of Indigenous Peoples. The client will document:

• the mutually accepted process between the client and Affected Communities of Indigenous Peoples, and
• evidence of agreement between the parties as the outcome of the negotiations. FPIC does not necessarily require unanimity and may be achieved even when individuals or groups within the community explicitly disagree.

Circumstances Requiring Free, Prior, and Informed Consent

Impacts on Lands and Natural Resources Subject to Traditional Ownership or Under Customary Use

14. If the client proposes to locate a project on, or commercially develop natural resources on lands traditionally owned by, or under the customary use of, Indigenous Peoples, and adverse impacts can be expected, the client will take the following steps:

• Document efforts to avoid and otherwise minimize the area of land proposed for the project;
• Document efforts to avoid and otherwise minimize impacts on natural resources and natural areas of importance to Indigenous People;
• Identify and review all property interests and traditional resource uses prior to purchasing or leasing land;
• Assess and document the Affected Communities of Indigenous Peoples’ resource use without prejudicing any Indigenous Peoples’ land claim. The assessment of land and natural resource use should be gender inclusive and specifically consider women’s role in the management and use of these resources;
• Ensure that Affected Communities of Indigenous Peoples are informed of their land rights under national law, including any national law recognizing customary use rights; and
• Offer Affected Communities of Indigenous Peoples compensation and due process in the case of commercial development of their land and natural resources, together with culturally appropriate sustainable development opportunities, including:
• Providing land-based compensation or compensation-in-kind in lieu of cash compensation where feasible.
• Ensuring continued access to natural resources, identifying the equivalent replacement resources, or, as a last option, providing compensation and identifying alternative livelihoods if project development results in the loss of access to and the loss of natural resources independent of project land acquisition.
• Ensuring fair and equitable sharing of benefits associated with project usage of the resources where the client intends to utilize natural resources that are central to the identity and livelihood of Affected Communities of Indigenous Peoples and their usage thereof exacerbates livelihood risk.
• Providing Affected Communities of Indigenous Peoples with access, usage, and transit on land it is developing subject to overriding health, safety, and security considerations.

Relocation of Indigenous Peoples from Lands and Natural Resources Subject to Traditional Ownership or Under Customary Use

15. The client will consider feasible alternative project designs to avoid the relocation of Indigenous Peoples from communally held lands and natural resources subject to traditional ownership or under customary use. If such relocation is unavoidable the client will not proceed with the project unless FPIC has been obtained as described above. Any relocation of Indigenous Peoples will be consistent with the requirements of Performance Standard 5. Where feasible, the relocated Indigenous Peoples should be able to return to their traditional or customary lands, should the cause of their relocation cease to exist. (…)

Private Sector Responsibilities Where Government is Responsible for Managing Indigenous Peoples Issues

21. Where the government has a defined role in the management of Indigenous Peoples issues in relation to the project, the client will collaborate with the responsible government agency, to the extent feasible and permitted by the agency, to achieve outcomes that are consistent with the objectives of this Performance Standard. In addition, where government capacity is limited, the client will play an active role during planning, implementation, and monitoring of activities to the extent permitted by the agency.

22. The client will prepare a plan that, together with the documents prepared by the responsible government agency, will address the relevant requirements of this Performance Standard. The client may need to include

1. the plan, implementation, and documentation of the process of ICP and engagement and FPIC where relevant;
2. a description of the government-provided entitlements of affected Indigenous Peoples;
3. the measures proposed to bridge any gaps between such entitlements, and the requirements of this Performance Standard; and
4. the financial and implementation responsibilities of the government agency and/or the client.

UN Special Rapporteur, Extractive Industries and Indigenous Peoples^[5]

2. Despite such negative experiences, looking towards the future it must not be assumed that the interests of extractive industries and indigenous peoples are entirely or always at odds with each other. In the course of his examination of situations across the globe, the Special Rapporteur has found that in many cases indigenous peoples are open to discussions about extraction of natural resources from their territories in ways beneficial to them and respectful of their rights. A number of situations have been brought to the attention of the Special Rapporteur in which indigenous peoples have agreed to industrial-scale resource extraction within their territories or have even themselves taken initiatives for mining or development of oil or gas.

3. On the other hand, there are certainly cases in which resource extraction is simply incompatible with indigenous peoples’ own aspirations and priorities for development, or may impede their access to lands and natural resources critical to their physical well-being and the integrity of their cultures and livelihoods. (…)

4. (…) the prevailing model of resource extraction is one in which an outside company, with backing by the State, controls and profits from the extractive operation, with the affected indigenous peoples at best being offered benefits in the form of jobs or community development projects that typically pale in economic value in comparison to profits gained by the corporation.

A preferred model: resource extraction and development through indigenous peoples’ own initiatives and enterprises

8. In contrast to the prevailing model in which natural resource extraction within indigenous territories is under the control of and primarily for the benefit of others, indigenous peoples in some cases are establishing and implementing their own enterprises to extract and develop natural resources. This alternative of indigenous-controlled resource extraction, by its very nature, is more conducive to the exercise of indigenous peoples’ rights (…)

Regulation of extraterritorial activities of companies

47. The Special Rapporteur has observed that in many cases in which extractive companies have been identified as responsible for, or at least associated with, violations of the rights of indigenous peoples, those violations occur in countries with weak regulatory regimes, and the responsible companies are domiciled in other, typically much more developed, countries. Even if States are not obligated under international law to regulate the extraterritorial activities of companies domiciled in their territory in order to compel or promote conformity with human rights standards, strong policy reasons exist for them to do so, as affirmed by the Guiding Principles on Business and Human Rights. These reasons include, in addition to preserving the States’ own reputation, the simple morality of exercising the State regulatory power to advance human rights and reduce human turmoil whenever possible.

Due diligence by extractive companies to respect indigenous peoples’ rights

53. Given their independent responsibility to respect human rights, business enterprises, including extractive companies, should not assume that compliance with State law equals compliance with the international standards of indigenous rights. On the contrary, companies should perform due diligence to ensure that their actions will not violate or be complicit in violating indigenous peoples’ rights, identifying and assessing any actual or potential adverse human rights impacts of a resource extraction project.

54. Such due diligence entails identifying with particularity, at the very earliest stages of planning for an extractive project, the specific indigenous groups that may be affected by the project, their rights in and around the project area and the potential impacts on those rights. This due diligence should be performed preliminarily at the very earliest stages of determining the feasibility of the project, in advance of a more complete project impact assessment in later stages of planning or decision-making about the project. Additionally, extractive companies should employ due diligence to avoid acquiring tainted assets, such as permits previously acquired by other business enterprises in connection with prospecting for or extracting resources in violation of indigenous peoples’ rights.

65. As is now generally understood, environmental and human rights impact assessments are important preconditions for the implementation of extractive operations. Indigenous peoples should have full access to the information gathered in impact assessments that are done by State agencies or extractive companies, and they should have the opportunity to participate in the impact assessments in the course of consultations or otherwise. States should ensure the objectivity of impact assessments, either by subjecting them to independent review or by requiring that the assessments are performed free from the control of the promoters of the extractive projects.

Indigenous participation through representative institutions

70. A defining characteristic of indigenous peoples is the existence of their own institutions of representation and decision-making, and it must be understood that this feature makes consultations with indigenous peoples very different from consultations with the general public or from ordinary processes of State or corporate community engagement. The Special Rapporteur notes cases in which companies and States have bypassed indigenous peoples’ own leadership and decision-making structures out of misguided attempts to ensure broad community support. Where indigenous peoples are concerned, however, international standards require engagement with them through the representatives determined by them and with due regard for their own decision-making processes. Doing so is the best way of ensuring broad community support. Indigenous peoples should be encouraged to include appropriate gender balance within their representative and decision-making institutions. However, such gender balance should not be dictated or imposed upon indigenous peoples by States or companies, anymore than indigenous peoples should impose gender balance on them.

71. It may be that in some circumstances ambiguity exists about which indigenous representatives are to be engaged, in the light of the multiple spheres of indigenous community and organization that may be affected by particular extractive projects, and also that in some instances indigenous representative institutions may be weakened by historical factors. In such cases indigenous peoples should be given the opportunity and time, with appropriate support from the State if they so desire it, to organize themselves to define the representative institutions by which they will engage in consultations over extractive projects.

UN Expert Mechanism on Indigenous Peoples, Free, Prior and Informed Consent^[6]

Rationale

11. Free, prior and informed consent as provided for in the Declaration has three major rationales. First, it seeks to restore to indigenous peoples control over their lands and resources (…). Second, the potential for free, prior and informed consent to restore indigenous peoples’ cultural integrity, pride and self-esteem is reflected in article 11 of the Declaration. (…) Third, free, prior and informed consent has the potential to redress the power imbalance between indigenous peoples and States, with a view to forging new partnerships based on rights and mutual respect between parties (…).

Nature of free, prior and informed consent as a human rights norm

12. The Declaration recognizes collective rights and protects collective identities, assets and institutions, notably culture, internal decision-making and the control and use of land and natural resources. The collective character of indigenous rights is inherent in indigenous culture and serves as a bulwark against disappearance by forced assimilation.

13. Free, prior and informed consent operates fundamentally as a safeguard for the collective rights of indigenous peoples. Therefore, it cannot be held or exercised by individual members of an indigenous community. (…)

14. Free, prior and informed consent is a manifestation of indigenous peoples’ right to self-determine their political, social, economic and cultural priorities. It constitutes three interrelated and cumulative rights of indigenous peoples: the right to be consulted; the right to participate; and the right to their lands, territories and resources. Pursuant to the Declaration, free, prior and informed consent cannot be achieved if one of these components is missing.

15. States’ obligations to consult with indigenous peoples should consist of a qualitative process of dialogue and negotiation, with consent as the objective (…). The Declaration does not envision a single moment or action but a process of dialogue and negotiation over the course of a project, from planning to implementation and follow-up. (…)

18. The Human Rights Committee has also elaborated on indigenous peoples’ right to participate in a way that goes beyond consultation, noting that participation in the decision-making process must be “effective”. The supervisory bodies of the International Labour Organization (ILO) have underlined the interconnection between consultation and participation. Participation connotes more than mere consultation and should include the development of initiatives by indigenous peoples. “In this sense, the intertwined concepts of consultation and participation are mechanisms to ensure that indigenous peoples can decide their own priorities for the process of development and exercise control over their own economic, social and cultural development”.

Constituent elements of free, prior and informed consent

20. As affirmed in the Declaration, decisions to grant or withhold consent must be free. The term “free” is understood as addressing both direct and indirect factors that can hinder indigenous peoples’ free will. To that end, for a process of consultation to be genuine in the form of a dialogue and negotiation towards consent, the following should occur or the legitimacy of the consultation process may be called into question:

• The context or climate of the process should be free from intimidation, coercion, manipulation (see A/HRC/18/42, annex, para. 25) and harassment, ensuring that the consultation process does not limit or restrict indigenous peoples’ access to existing policies, services and rights;
• Features of the relationship between the parties should include trust and good faith, and not suspicion, accusations, threats, criminalization (see A/HRC/39/17), violence towards indigenous peoples or prejudiced views towards them;
• Indigenous peoples should have the freedom to be represented as traditionally required under their own laws, customs and protocols, with attention to gender and representation of other sectors within indigenous communities. Indigenous peoples should determine how and which of their own institutions and leaders represent them. They should therefore enjoy the freedom to resolve international representation issues without interference;
• Indigenous peoples should have the freedom to guide and direct the process of consultation; they should have the power to determine how to consult and the course of the consultation process. This includes being consulted when devising the process of consultation per se and having the opportunity to share and use or develop their own protocols on consultation. They should exert sufficient control over the process and should not feel compelled to get involved or continue;
• Indigenous peoples should have the freedom to set their expectations and to contribute to defining methods, timelines, locations and evaluations.

21. Any free, prior and informed consent process must also be prior to any other decisions allowing a proposal to proceed and should begin as early as possible in the formulation of the proposal. (…) the “prior” component of free, prior and informed consent should entail:

• Involving indigenous peoples as early as possible. Consultation and participation should be undertaken at the conceptualization and design phases and not launched at a late stage in a project’s development, when crucial details have already been decided;
• Providing the time necessary for indigenous peoples to absorb, understand and analyse information and to undertake their own decision-making processes (…).

22. Consultation in the free, prior and informed consent context should be “informed”, implying that:

• The information made available should be both sufficiently quantitative and qualitative, as well as objective, accurate and clear;
• The information should be presented in a manner and form understandable to indigenous peoples, including translation into a language that they understand. (…) The substantive content of the information should include the nature, size, pace, reversibility and scope of any proposed project or activity; the reasons for the project; the areas to be affected; social, environmental and cultural impact assessments; the kind of compensation or benefit-sharing schemes involved; and all the potential harm and impacts that could result from the proposed activity;
• Adequate resources and capacity should be provided for indigenous peoples’ representative institutions or decisions-making mechanisms, while not compromising their independence. Such institutions or decision-making processes must be enabled to meet technical challenges — including, if necessary, through capacity-building initiatives to inform the indigenous peoples of their rights in general — prior or parallel to the process of consultation. (…)

Consent

26. (…) Indigenous peoples may withhold their consent in a number of situations and for various purposes or reasons:

• They may withhold consent following an assessment and conclusion that the proposal is not in their best interests. Withholding consent is expected to convince the other party not to take the risk of proceeding with the proposal. (…);
• Indigenous peoples may withhold consent temporarily because of deficiencies in the process. Such deficiencies often consist of non-compliance with the required standards for the consent to be free, prior and informed. Indigenous peoples may seek adjustment or amendment to the proposal, including by suggesting an alternative proposal;
• Withholding consent can also communicate legitimate distrust in the consultation process or national initiative. This is generally the situation in countries where there is insufficient recognition of indigenous peoples or protection of their rights to lands, resources and territories. Cases of indigenous peoples being harassed, and even being killed for resisting “trap-like” consultation offers are numerous.

44. Agreements on consent should include detailed statements of the project, its duration and the potential impacts on the indigenous peoples, including their lands, livelihoods, resources, cultures and environments; provisions for mitigation, assessment, and reimbursement for any damages to those resources; statements of indemnification of indigenous peoples for injuries caused to others on their lands; methods and venues for dispute resolution; detailed benefit-sharing arrangements (including investment, revenue sharing, employment and infrastructure); and a timetable of deliverables, including opportunities to negotiate continuing terms and licences. As a matter of best practice, any form of consent should include a detailed description of the process of notice, consultation and participation that preceded the consent.

45. As a dynamic process, the implementation of free, prior and informed consent should also be monitored and evaluated regularly. Such agreements should “include mechanisms for participatory monitoring” (…). The implementation of free, prior and informed consent should also include accessible recourse mechanisms for disputes and grievances, devised with the effective participation of indigenous peoples, including judicial review.

55. Some concerns have been raised about the many guidelines on free, prior and informed consent, including that the language used is often imprecise and sometimes introduces ambiguities, for example with respect to the point at which impact assessments are required or when consultation should begin. Sometimes these guidelines do not address the issue of indigenous peoples wishing to define their own consent process and to control aspects of the impact assessments. In addition, there is sometimes ambiguity in the event that consent is not forthcoming.

57. Indigenous peoples are also establishing their own protocols for free, prior and informed consent, particularly in North America and Latin America (…). These protocols are an important tool in preparing indigenous peoples, States and other parties to engage in a consultation or free, prior and informed consent process, setting out how, when, why and whom to consult. The establishment of these protocols is an instrument of empowerment for indigenous peoples (…).

61. Indigenous peoples also raise concerns about “consultation fatigue”; “manufactured” consent; limits put on consultation; a lack of a common understanding of international standards relating to free, prior and informed consent; an increase in encroachments of extractive industries; and a lack of structural change to ensure free, prior and informed consent at the institutional level.

62. National human rights institutions play an important role in contributing towards the implementation of free, prior and informed consent. As bodies acting independently from the Government, some with an expertise in the area of indigenous peoples, they can and do fulfil many roles in the consent context. For example, in Argentina, the national human rights institution intervened in a project by ArSat Co. Telecommunications, where it had several roles, including as general coordinator of the whole process, facilitator and guarantor controlling compliance with the legal framework. Its engagement included an open consultation process that overcame three years of roadblocks. (…)

Expert Mechanism advice No. 11 on indigenous peoples and free, prior and informed consent

9. States should ensure that indigenous peoples have the resources and capacity to effectively engage in consultation processes by supporting the development of their own institutions, while not compromising the independence of those institutions. States and the private sector should promote and respect indigenous peoples’ own protocols, as an essential means of preparing the State, third parties and indigenous peoples to enter into consultation and cooperation, and for the smooth running of the consultations.

10. States should ensure equality throughout the process and that the issue of the imbalance of power between the State and indigenous peoples is addressed and mitigated, for example employing independent facilitators for consultations and establishing funding mechanisms that allow indigenous peoples to have access to independent technical assistance and advice.

11. States should engage broadly with all potentially impacted indigenous peoples, consulting with them through their own representative decision-making institutions, in which they are encouraged to include women, children, youth and persons with disabilities, and bearing in mind that the governance structures of some indigenous communities may be male dominated. During each consultation, efforts should be made to understand the specific impacts on indigenous women, children, youth and persons with disabilities.

12. States should ensure that the free, prior and informed consent process supports consensus building within the indigenous peoples’ community, and practices that might cause division should be avoided, including when indigenous peoples are in situations of vulnerability like economic duress. Special attention should be given in this regard to indigenous peoples representing distinct sectors in the community, including dispersed communities and indigenous peoples no longer in possession of land or who have moved to urban areas.

Inter-American Court of Human Rights, Saramaka People v. Suriname^[7]

3. The Commission asked the Court to determine the international responsibility of the State for the violation of Articles 21 (Right to Property) and 25 (Right to Judicial Protection) (…)

12. The representatives submitted an additional and rather detailed, three-and-a-half page account of certain facts not contained in the application, regarding the alleged “ongoing and continuous effects” associated with the construction of the Afobaka dam. Accordingly, under the heading of “Facts” in their brief containing pleadings, motions, and evidence, the representatives described, inter alia, the following alleged facts: the lack of consent by the Saramaka people for said construction; the names of the companies involved in the construction of the dam; various figures regarding the amount of area flooded and the number of displaced Saramakas from the area; the compensation that was awarded to those displaced persons; the lack of access to electricity of the so-called “transmigration” villages; the painful effect the construction had on the community; the reduction of the Saramaka people’s subsistence resources; the destruction of Saramaka sacred sites; the lack of respect for the interred remains of deceased Saramakas; the environmental degradation caused by foreign companies that have received mining concessions in the area, and the State’s plan to increase the level of the dam to increase power supplies, which will presumably cause the forcible displacement of more Saramakas and which has been the object of a complaint filed by the Saramakas before domestic authorities in the year 2003. (…)

121. In accordance with this Court’s jurisprudence as stated in the Yakye Axa and Sawhoyamaxa cases, members of tribal and indigenous communities have the right to own the natural resources they have traditionally used within their territory for the same reasons that they have a right to own the land they have traditionally used and occupied for centuries. Without them, the very physical and cultural survival of such peoples is at stake. Hence the need to protect the lands and resources they have traditionally used to prevent their extinction as a people. That is, the aim and purpose of the special measures required on behalf of the members of indigenous and tribal communities is to guarantee that they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected by States. (…)

127. Nevertheless, the protection of the right to property under Article 21 of the Convention is not absolute and therefore does not allow for such a strict interpretation. Although the Court recognizes the interconnectedness between the right of members of indigenous and tribal peoples to the use and enjoyment of their lands and their right to those resources necessary for their survival, said property rights, like many other rights recognized in the Convention, are subject to certain limitations and restrictions. In this sense, Article 21 of the Convention states that the “law may subordinate [the] use and enjoyment [of property] to the interest of society”. Thus, the Court has previously held that, in accordance with Article 21 of the Convention, a State may restrict the use and enjoyment of the right to property where the restrictions are: a) previously established by law; b) necessary; c) proportional, and d) with the aim of achieving a legitimate objective in a democratic society. In accordance with this Article, and the Court’s jurisprudence, the State will be able to restrict, under certain circumstances, the Saramakas’ property rights, including their rights to natural resources found on and within the territory.

129. In this particular case, the restrictions in question pertain to the issuance of logging and mining concessions for the exploration and extraction of certain natural resources found within Saramaka territory. Thus, in accordance with Article 1(1) of the Convention, in order to guarantee that restrictions to the property rights of the members of the Saramaka people by the issuance of concessions within their territory does not amount to a denial of their survival as a tribal people, the State must abide by the following three safeguards: First, the State must ensure the effective participation of the members of the Saramaka people, in conformity with their customs and traditions, regarding any development, investment, exploration or extraction plan (hereinafter “development or investment plan”) within Saramaka territory. Second, the State must guarantee that the Saramakas will receive a reasonable benefit from any such plan within their territory. Thirdly, the State must ensure that no concession will be issued within Saramaka territory unless and until independent and technically capable entities, with the State’s supervision, perform a prior environmental and social impact assessment. These safeguards are intended to preserve, protect and guarantee the special relationship that the members of the Saramaka community have with their territory, which in turn ensures their survival as a tribal people.

148. The State further argued that the “concessions which were provided to third parties did not affect [Saramaka] traditional interests”. The evidence before the Tribunal suggests not only that the level of consultation referred to by the State was not enough to guarantee the Saramakas’ effective participation in the decision-making process, but also that the State did not complete environmental and social impact assessments prior to issuing said concessions, and that at least some of the concessions granted did affect natural resources necessary for the economic and cultural survival of the Saramaka people. (…)

151. The observations of the Saramaka witnesses are corroborated by the research of expert witnesses Dr. Robert Goodland and Dr. Peter Poole, both of whom visited the concessions and surrounding areas between 2002 and 2007. In general, Dr. Goodland stated that “the social, environmental and other impacts of the logging concessions are severe and traumatic”, and that the “[l]ogging was carried out below minimum acceptable standards for logging operations.” Dr. Goodland characterized it as “among the worst planned, most damaging and wasteful logging possible.” Dr. Poole added that it was “immediately apparent to [him] that the logging operations in these concessions were not done to any acceptable or even minimum specifications, and sustainable management was not a factor in decision-making.”

152. Dr. Goodland and Dr. Poole both testified that the logging companies built substandard bridges in their concessions and that these bridges unnecessarily blocked numerous creeks. Because these creeks are the primary source of potable water used by members of the Saramaka people, “water necessary for drinking, cooking, washing, irrigation, watering gardens, and catching fish is not available. [Furthermore,] subsistence farms become less productive or so unproductive that they have to be abandoned.” According to Dr. Goodland, these large areas of standing water render the forest incapable of producing traditional Saramaka agricultural crops. Dr. Poole reached the same conclusions. (…)

154. In conclusion, the Court considers that the logging concessions issued by the State in the Upper Suriname River lands have damaged the environment and the deterioration has had a negative impact on lands and natural resources traditionally used by members of the Saramaka people that are, in whole or in part, within the limits of the territory to which they have a communal property right. The State failed to carry out or supervise environmental and social impact assessments and failed to put in place adequate safeguards and mechanisms in order to ensure that these logging concessions would not cause major damage to Saramaka territory and communities. Furthermore, the State did not allow for the effective participation of the Saramakas in the decision-making process regarding these logging concessions, in conformity with their traditions and customs, nor did the members of the Saramaka people receive any benefit from the logging in their territory. All of the above constitutes a violation of the property rights of the members of the Saramaka people recognized under Article 21 of the Convention (…).

155. The Court must also analyze whether gold-mining concessions within traditional Saramaka territory have affected natural resources that have been traditionally used and are necessary for the survival of the members of the Saramaka people. According to the evidence submitted before the Court, the members of the Saramaka people have not traditionally used gold as part of their cultural identity or economic system. Despite possible individual exceptions, members of the Saramaka people do not identify themselves with gold nor have demonstrated a particular relationship with this natural resource (…). [Nevertheless], because any gold mining activity within Saramaka territory will necessarily affect other natural resources necessary for the survival of the Saramakas, such as waterways, the State has a duty to consult with them, in conformity with their traditions and customs, regarding any proposed mining concession within Saramaka territory, as well as allow the members of the community to reasonably participate in the benefits derived from any such possible concession, and perform or supervise an assessment on the environmental and social impact prior to the commencement of the project. (…)

156. The Court recognizes that, to date, no large-scale mining operations have taken place within traditional Saramaka territory. Nevertheless, the State failed to comply with the three safeguards when it issued small-scale gold mining concessions within traditional Saramaka territory. That is, such concessions were issued without performing prior environmental and social impact assessments, and without consulting with the Saramaka people in accordance with their traditions, or guaranteeing their members a reasonable share in the benefits of the project. As such, the State violated the members of the Saramaka peoples’ right to property (…).

UN Global Compact,The Business Reference Guide^[8]

Business benefits from developing an indigenous peoples’ rights policy in the following ways:

• It publicly confirms the business’ commitment to meeting its responsibility to respect the rights of indigenous peoples, and demonstrates good business practice;
• It provides a consistent and concrete global policy for all company managers and workers, irrespective of individual country managers that may change regularly;
• It assists the business in identifying policy gaps and areas of risk;
• It can provide a differentiator for business, resulting in competitive advantage;
• It builds trust with external stakeholders, and can assist the business in understanding and meeting stakeholder expectations, which in turn support social licence to operate and helps prevent potential project delays, stoppage or cancelations;
• It can provide reputational benefits, especially given the increasing level of stakeholder attention to the issue of community consent and indigenous peoples’ rights, particularly among investors;
• It provides guidance for managers and workers in relation to matters that may impact the rights of indigenous peoples;
• It provides operational guidance and risk management in environments where the rights of indigenous peoples may not be well understood;
• It contributes to sustainable development;
• It provides good will and long-term economic benefits, especially for businesses seeking to develop lands and resources; and
• It helps companies to meet their commitments under the UN Global Compact (for participant businesses).

Anaya & Puig, Mitigating State Sovereignty: The Duty to Consult^[9]

Some commentators and activists argue that the duty to consult entails an absolute right to give or withhold consent that can altogether trump the exercise of state sovereignty. By contrast, others have argued that it entails but a minimum duty to discuss with indigenous peoples’ important decisions that affect them, with ultimate state decision-making power remaining substantially unaltered. Drawing upon Professor Macklem’s theory emphasizing the emancipatory power of human rights law in providing tools to safeguard against (but also advocate within) the state, we demonstrate how the consultation duty functions as a mitigating force against the exercise of state sovereignty. We also explain how the contours of the international law duty to consult (as opposed to the political or aspirational postulates often associated with the duty) are determined by its context and purpose as a counterweight to the power of business enterprises. This counterweight guards against state decisions that might be contrary to the interests or wellbeing of indigenous peoples, but it does not—nor can it within the system of international law of which it is part—entirely override state sovereignty. Hence, the duty entails more than a mere right to be informed and heard but less than the right of veto.

            Despite their acknowledged importance and underlying rationale, adequate consultation procedures continue to elude governments, which often analogize them to referenda or notice-and-comment processes. Some business enterprises also reject them because of unpredictable outcomes, added costs and delays, or simply unawareness or shortsightedness. In turn, business forecasts and concepts like ‘legitimate-backed expectations’ are often used to constrain the scope of consultations and frame the resulting choices as violations of internationally protected property or contract ‘rights’. At the core of such arguments are often investment instruments, some of which may provide extensive protections to foreign investors without the adequate policy and regulatory space to ensure the protection of human rights.

In this complex setting, how shall we understand the nature, reach, and limits of the duty to consult? Here, we also examine this question by describing two consultation processes in Latin America [Mexico and Costa Rica]. (…)

Governments and business enterprises are beginning to recognize that consultations are not optional, but rather that states are required to implement consultations in a manner consistent with their human rights obligations. (…) Despite this progress, different aspects of the duty remain subject to misconception, debate, or confusion. Generally, the problem can be attributed to limited institutional capacity in many countries, the novelty of this important topic, and of course, the resulting policy implications and other relevant consequences derived from different legal interpretations or normative understandings. In this section, we describe three main interpretive strains and derivative arguments that inform the debate: the instrumentalist, the consent-veto, and the minimalist approaches to consultations.

i. The Instrumentalist Approach

State authorities often characterize the consultation process as another participatory mechanism, rendering it with limited capacity to achieve its safeguard function against human rights violations. Hence, the process is analogized to notice-and-comment and referendum procedures that are already familiar in domestic law, without close attention to satisfying specific international standards. (…)

A problem—perhaps not exclusive to this context—is that ‘central’ authorities are often motivated by common social goals, such as building critical infrastructure, expanding economic benefits, or simply attracting private investment to marginalized communities. These motivations can easily translate into general indicators or markers i.e., FDI influx, GDP growth or Gini index. As a result of the incentives of this governance logic, states may ignore the consensus-building role that consultations oblige and instead use the process to legitimize specific projects. Moreover, with the growing demands on governments, from human rights protection to trade negotiations, the resulting pressures often result in the oversimplification of participation, with a corresponding preference for procedural formalism over substance. Hence, we term this first position an instrumental approach.

ii. The Consent – Veto Power Approach

As the main beneficiaries, it should not come as a surprise that indigenous peoples have forcefully advanced attention to implementing consultations. (…)

Within such maximalist interpretations, the process of consultation and the related objective of achieving ‘free, prior, and informed consent’13 is understood in the context of ‘indigenous sovereignty’. Advocates for indigenous peoples assert a freestanding ‘right to consent’ as part of the consultation norm. Accordingly, protecting a choice of giving or withholding consent—not specifically safeguarding human rights—is the key objective of the process under this approach. It is an approach similar to that used to motivate the early indigenous rights movement by assertion of a right by indigenous peoples to exercise full sovereignty. Although in many ways defensible, this approach is in strong tension with how international law recognizes sovereignty among states, as well as contrary to existing domestic constitutional arrangements. (…)

Notwithstanding its deep concern for the advancement of the rights of indigenous peoples, the consent-veto approach tends to reduce the key outcome of the process to obtaining or withholding consent, instead of safeguarding human rights. Ironically, it suggests a more limited protective role of the consultation as it assumes that state oversight expires once consent is obtained. More importantly, it eliminates the governments’ policy space to make important decisions without indigenous peoples’ consent—something that is difficult to reconcile with the basic idea of state sovereign decision-making and prevailing understandings of pluralistic democracy.

iii. The Minimalistic Approach

Many business enterprises tend to favor a narrow view of the duty to consult. In some circumstances, the state and business enterprise’s preferences align with what we term the ‘check-the-box’ or minimalistic approach.

This approach regards consultation processes as a sizeable bureaucratic obstacle that hinders productive activity. Accordingly, consultations are reduced to obtaining input to validate the measure with ultimate state decision-making power remaining substantially unaltered. For some callous corporate interests, consultations are of limited utility and a symptom of the expansive modern regulatory state. From this point of view, consultations are at minimum costly processes that delay projects. At worst, they are rent-seeking mechanisms that provide certain groups with the opportunity to extract underserved benefits.

Nevertheless, because in many places consultations are novel, and the particular authority and mechanisms to implement them are often vague and indeterminate, the consultation process can be perceived as arbitrary. (…) Moreover, disagreements around the consultation process and the applicability (or not) of specific requirements are problematized as potential violations of ‘rights of investors’—in particular the ‘fair-and-equitable treatment’ standard.

[This approach is] animated by a preference for deregulation and an enhanced view of economic liberalism. The ideas of risk reduction, free markets, and economic efficiency inform the position that the state should show restraint unless a ‘market failure’ exists with respect to indigenous peoples.21 If private individuals within indigenous communities are able and willing to enter freely into a transaction (even if marginalized and vulnerable) they will benefit from the transaction and the economic spillovers. According to this approach, instead of adding burdensome processes like consultations, states should minimize the risks and red tape to encourage long-term commitment of financial resources in indigenous communities. (…)

In terms of discursive tradition, this view of consultations can be situated within what has been termed a ‘neo-liberal’ approach to international relations and domestic policy. At the same time, this position is often rooted in a classical version of legal realism in international law and relations. For one, this approach is deeply cynical of the role of international human rights law, as well as the goals of the authorities that demand consultations. With its focus on economic and political power (including the power of both governmental and nongovernmental actors), this approach serves to counter a rights-based discourse by emphasizing the complexities of a world in which actors compete for business opportunities and foreign investment. Moreover, rightly or wrongly, corporate actors perceive indigenous peoples as too technically unsophisticated to decide questions relevant to the project and state authorities as self-interested or corrupt—in part as a result of the economic liberalism that informs their view.

Mitigating Sovereignty: Consultation within a Human Rights Framework

In Professor Macklem’s words: “International law [historically] excluded indigenous peoples, for example, from the outset from its distribution of sovereign power and included them within the sovereign power of states established on the territories they had inhabited since time immemorial. This process of exclusion and inclusion is an ongoing one. International law continues to exclude and include indigenous peoples in its distribution of sovereign authority by refusing to recognize that they possess a right of self-determination entitling them to acquire sovereign statehood… [However, i]ndigenous rights in international law speak to some of the adverse consequences of international law’s exclusion of indigenous peoples from its distribution of sovereign authority.”

Ultimately, consultations serve a protective role for indigenous peoples within an international legal system in which power is distributed among sovereign independent states. Consultations serve to mitigate the consequences of the power disparities between indigenous peoples and states, whose interests are often aligned with corporations or similar economic actors. Consultations therefore attempt to attain a balancing function by safeguarding the human rights of indigenous peoples within a state-centric world that international law itself supports. (…)

Like Professor Macklem, we believe that international law has the capacity to overcome its imperial origins and become a modern instrument of justice. Our interpretive approach is grounded in contemporary legal realism and informed by a sense of global pluralism—one that celebrates the emancipatory power that human rights law gives to different actors and the tools it provides to safeguard against (but also within) the state. (…)

Finally, to fulfill its protective function, the duty to consult entails a process that brings together different stakeholders and actors potentially affected by a proposed project. Hence, to enable the correct implementation of the duty, indigenous peoples are certainly the key constituency of consultations. However, the consultation process should also include the business enterprise, if any, behind the project that the state seeks to advance. The participation of the business enterprise aims to enable the main objective of the process—obtaining agreement on just terms to safeguard human rights. (…)

There are clear tensions between indigenous peoples, the state, and business enterprises around the implementation of particular development projects that are of concern to each. The duty to consult indigenous peoples arises at the epicenter of these tensions, which are heightened by globalization.

Kemp & Owen, Corporate Readiness and Applying FPIC in Mining^[10]

Where there are strong points of incompatibility between domestic law and FPIC, a one-off, company-supported indigenous consent process could be considered invalid, or viewed as a threat to state sovereignty.

In many contexts, indigenous or tribal peoples cannot engage openly about human rights, or assert a right to FPIC. Several jurisdictions have rejected the veto rights attached to FPIC on the grounds that the state does not recognize indigenous people. The constitution of Papua New Guinea, for example, acknowledges the customary rights of landowners, but in our experience, both the state and developers resist the application of international standards in which landowners would be attributed the status of indigenous peoples. In addition, where oppressive politics are an established fact, operationalizing FPIC for a single mining project exposes indigenous or tribal peoples to the risk of harassment or persecution by the state. Recent case studies in Southeast Asia indicate that some states are either unwilling or incapable of managing dissent around resource development projects. While many states have ratified core human rights treaties, their ability to uphold basic human rights in the context of resource development is an ongoing issue.

Where the host country context is less compatible with the principles and functional requirements of FPIC, the human and financial resources required to address inherent power imbalances is far greater. However, issues arise in terms of what is an appropriate allocation to address these imbalances, and which party is best placed to provide the resources. For example, in the context of a low-capacity jurisdiction, a mining company may be willing to allocate resources to support an FPIC process. It is likely, however, that a company-resourced FPIC process will invite criticism over the privatization of rights and remedies, as has occurred with project-level, non-judicial grievance mechanisms. When responsibilities to support and protect human rights-related responsibilities are seen as privatized, questions arise about the nature of ‘consent’ and the degree to which we can be assured that it was given ‘freely’.

In our experience, the range of human and financial resources required to support complex engagement and negotiation processes with indigenous peoples varies. This investment often requires, for example, provision of support for dissenting groups, access to technical knowledge and experts, improvement of state or corporate engagement processes, the appointment of independent facilitators to resolve conflict between parties and external monitors to document intent, and impact of an FPIC process, including unintended consequences. (…)

Background (Cambodia)

Sovannara et al, Indigenous People: Political Rights, Culture, Education and Health^[11]

Cambodia is home to 24 different indigenous peoples. With an estimated population of 200,000 to 400,000 overall, indigenous peoples are generally estimated to account for 1 to 2 percent of the national population although they are not clearly disaggregated in national census data. Compared with its neighbors in Southeast Asia, Cambodia has the smallest ethnic minority population, both relatively and in absolute numbers. Over half of the indigenous population is found in the north-eastern provinces of Ratanakiri and Mondulkiri. Indigenous groups from south-western and north-eastern provinces of Cambodia have similar cultural practices. Their livelihoods are based on animal husbandry and rotation (shifting) cultivation. Collection of non-timber forest products from the natural forest and weaving are the main sources of income. Indigenous peoples depend on forest products for their livelihoods, without destroying the land and forest that have been preserved by their ancestors. They have strong unity and respect for their customary law, practices and religion that bring blessings of good health and high-yielding crops.

Neth et al, Impacts of Economic Development on Indigenous Livelihoods^[12]

There are many factors that affect community livelihoods (capabilities, assets, and activities) and community enthusiasm to accept changes in their livelihoods, as well as the dynamic relationship between these. (…) Indigenous communities often do not even figure in the large-scale economic development plans, and they are only rarely consulted. Also, small-scale land grabbing by the rich and politically influential has become common practice in indigenous regions, as the country’s infrastructure improves and indigenous areas become more accessible. Communal land-titling programs for indigenous communities exist, but there is little protection for indigenous land, even under interim protective measures.

Instruments (Cambodia)

Constitution of Cambodia^[13]

Article 31. Khmer citizens are equal before the law, enjoying the same rights, liberties and duties regardless of race, color, sex, language, beliefs, religions, political tendencies, birth origin, social status, wealth or other situations…

Land Law^[14]

Article 23. An indigenous community is a group of people that resides in the territory of the Kingdom of Cambodia whose members manifest ethnic, social, cultural and economic unity and who practice a traditional lifestyle, and who cultivate the lands in their possession according to customary rules of collective use (…)

Article 24. An individual who meets the ethnic, cultural and social criteria of an indigenous community, is recognized as a group member by the majority of such group, and who accepts the unity and subordination leading to acceptance into the community shall be considered to be a member of the indigenous community and is eligible to have the benefit of the rights, guarantees and protections provided by this law.

Article 25. The lands of indigenous communities are those lands where the said communities have established their residences and where they carry out traditional agriculture. The lands of indigenous communities include not only lands actually cultivated but also includes reserved necessary for the shifting of cultivation which is required by the agricultural methods they currently practice and which are recognized by the administrative authorities (…)

Article 26. Ownership of the immovable properties described in Article 25 is granted by the State to the indigenous communities as collective ownership. This collective ownership includes all of the rights and protections of ownership as are enjoyed by private owners (…)

Article 27. For the purposes of facilitating the cultural, economic and social evolution of members of indigenous communities and in order to allow such members to freely leave the group or to be relieved from its constraints, the right of individual ownership of an adequate share of land used by the community may be transferred to them. Immovable property that is subject to such private individual ownership cannot fall under the general definition of public properties of the State.

Article 28. No authority outside the community may acquire any rights to immovable properties belonging to an indigenous community.

Law on Forestry^[15]

Article 11. The  Permanent  Forest  Estates  shall  be  managed  with  the  objective  to  increase  to  the  maximum extent the social, economic, environmental, and cultural heritage benefits for the Kingdom  of  Cambodia  and  its  people  according  to  the  principle  of  sustainable  forest  management. Ministry of Agriculture, Forestry and Fisheries shall classify, register and set boundaries for all forests within the Permanent Forest Estates. In carrying out these activities, Ministry of Agriculture, Forestry and Fisheries shall coordinate with concerned local communities, concerned   authorities   and   the   Ministry   of   Land   Management   Urban   Planning   and   Construction in order to assist in registration of land property of indigenous community and preparation of the national land use map (…)

Article 15. Concessionaires shall have the right to manage and conduct Forest Products & By-products harvesting  operations  within  their  concession,  while  ensuring  that  the  operation  does  not  interfere with the following:

1- Customary user rights taking place on land property of indigenous community that is registered with the state consistent with the Land law; and

2. Customary access and user rights practiced by communities residing within, or adjacent to forest concessions.”

Article 16. The Forest Concession Agreement shall at a minimum include:

1-The date the concession is granted and the duration for which it is granted;

2-The  location  of  the  forest  concession,  indicating  the  identification  of  community  owned property…;

3-A  written  statement  that  the  concessionaire  shall  respect  legal  rights  of  others  and  not  enter,  to  harvest  Forest  Products  &  By-products,  in  any  special  management  areas, indigenous community property area or community forests; (…)

Protected Areas Law^[16]

Article 4. (…)​ The management of the protected area shall have to guarantee the rights of the local communities, indigenous  ethnic  minorities  and  the  public  to  participate  in  the  decision-making  on  the  sustainable management and conservation of biodiversity.

Article 6. Officials of the Nature Protection and Conservation Administration have the following rights and duties: (…)

5. Promote  education  and  dissemination  among  the  public  and  coordinate with  local  indigenous communities to participate in the preparation and implementation of community protected areas. Detailed  rights  and  duties  of  natural  protection  and  conservation  agency’s  officials  shall  be determined by Prakas of the Ministry of Environment.” (…)

Article 11. Each protected area shall be divided into four (4) management zoning systems as the following:

1. Core zone: management area(s) of high conservation values containing threatened and critically endangered species, and fragile ecosystems…

2. Conservation zone: management area(s) of high conservation values containing natural resources, ecosystems, watershed areas, and natural landscape located adjacent to the core zone. Access to the zone is allowed only with prior consent of the Nature Conservation and Protection Administration at the area with the exception of national security and defense sectors. Small-scale  community  uses  of  non-timber  forest  products  (NTFPs)  to  support  local  ethnic minorities’ livelihood may be allowed under strict control, provided that they do not present serious adverse impacts on biodiversity within the zone.

3. Sustainable  use  zone:  management  area(s)  of  high  economic  values  for  national  economic development and management, and conservation of the protected area(s) itself thus contributing to the local community, and indigenous ethnic minorities’ livelihood improvement. After consulting with relevant ministries and institutions, local authorities, and local communities in accordance with relevant laws and procedures, the Royal Government of Cambodia may permit development and investment activities in this zone in accordance with the request from the Ministry of Environment.

4. Community zone: management area(s) for socio-economic development of the local communities and indigenous ethnic minorities and may contain existing residential lands, paddy field and field garden or swidden (Chamkar).  Issuing land title or permission to use land in this zone shall have prior agreement from the Ministry of Environment in accordance with the Land Law.  This management area does not cover the Apsara authorities and other authorities designated and management area(s) to which the Royal Government has allocated the tasks.” (…)

Article 18. The Nature Protection and Conservation Administration shall develop for individual protected area an action plan to be approved by the Ministry of Environment and in accordance with the NPASMP. Process  for  the  development  of  the  Plan  shall  involve  coordination  and  consultations with  local authority, local community, indigenous ethnic minorities’ community and stakeholders. (…)

Article 21. Local  communities,  indigenous  ethnic  minority  communities,  the  public  and  civil  society  are encouraged to participate fully in the provision of and access to  information relevant to the protected area management, conservation and development.

Article 22. The State recognizes and secures access to traditional uses, local customs, beliefs, and religions of the local communities, and indigenous ethnic minority groups residing within and adjacent to the protected areas. Access  to  traditional  uses  of  natural  resources  and  customary  practices  of  local  community  and indigenous  ethnic  minority  groups  on  family  scale  may  be  allowed  within  sustainable  use  zone  and conservation  zone  following  guidelines  which  shall  be  prescribed  in  the  Prakas  of  the  Ministry  of Environment. (…)

Article 26. Local  communities  and  indigenous  ethnic  minorities may  not  have  the  rights  to  clear  or  work forestlands in the community protected areas allocated to it, pursuant to the agreements with the Ministry of Environment, to practice agricultural farming or to claim title over the land, or to sell, lease, pawn, donate, share, divide or transfer the areas under its own management to any person or legal entity. Community  protected  area  regulations  shall  be  established  by  local  community  and  indigenous ethnic minorities acknowledged by local authority and endorsed by the Nature Conservation and Protection Administration of the Ministry of Environment. Allocation  of  more  farmlands  to  local  community  and  indigenous  ethnic  minorities  shall  be determined by a sub-decree. (…)

Article 31. The Ministry  of  Environment  shall,  in  collaboration  with  local  communities,  indigenous  ethnic minorities, national and international organizations and NGOs, rehabilitate and restore the environment in degraded areas within the protected area.

Sub-Decree on the Procedure of Registration of Land of Indigenous Communities^[17]

Article 1. The purposes of this Sub-Decree are to determine principles, procedures, and mechanisms for the registration of land of indigenous communities as collective title.

Article 2. The  objectives  of  this  Sub-Decree  are  to  provide  indigenous  communities  with  legal  rights  over  land tenure, to ensure land tenure security, and to protect collective ownership by preserving the identity, culture, good custom and tradition of each indigenous community.

Article 3. This  Sub-Decree  has  the  scope  of  application  for  indigenous  communities  which  have  legally  been  established as legal entity in the territory of the Kingdom of Cambodia.

Sub-Decree on Community Forestry Management^[18]

Article 2. The objectives of this Sub-Decree include the following:

• To implement the Forestry Law and other legislation regarding Local Community management of forest resources;
• To define the rights, roles and duties of the Forestry Administration Responsible Authorities, CF Communities (…) and other stakeholders involved in Community Forestry management;
• To establish procedures to enable Communities to manage, use and benefit from forest resources, to preserve their culture, tradition and improve their livelihoods;
• To ensure user rights for a CF Community under a Community Forest Agreement;
• To support the Royal Government of Cambodia’s policies of poverty alleviation and decentralization; (…)

Ministry of Industry, Indigenous Peoples Planning Framework^[19]

(…) 6. National Policy on the Development of Indigenous People: The Policy was approved by the Council of Ministers April 24, 2009 and sets out government policies related to indigenous peoples in the fields of culture, education, vocational training, health, environment, land, agriculture, water resources, infrastructure, justice, tourism and industry, mines and energy. Together with the Land Law (2001) this policy gives recognition to the rights of indigenous peoples to traditional lands, culture and traditions (…)

13. Despite that Cambodia has a Policy that recognizes the right of indigenous people to culture, education, vocational training, health, environment, land, agriculture, water resources, infrastructure, justice, tourism and industry, mines and energy, there a few decrees, sub-decree or procedure that specifically safeguards or protect the interest of the indigenous peoples…Otherwise, the main gap between the World Bank’s requirements and the policies of the Government of Cambodia relates to the absence of sector specific decree or standard operating procedures. (…)

               (…) In relation to health policy, the Health Strategic Plan 2008-15 has no specific mention of indigenous peoples or the identification of measures to address the specific health barriers that they face. Ethnic minorities are mentioned once in relation to cross cutting challenges. The Rectangular Strategy is the guiding policy document in Cambodia and sets-out a broad social protection framework. The Rectangular Strategy Phase III (2013) has two brief references to indigenous peoples related to land registration/ titling and does not mention ethnic minorities. The National Strategic Development Plan (NSDP) 2014-2018 specifically mentions both indigenous peoples and ethnic minorities several times. Priority is focused on strengthening the existing national targeting mechanism (ID-Poor), enhancing targeting efficiency, reducing inclusion and exclusion errors, particularly of ethnic minorities. The NSDP mentions that an area of particular concern is the north-eastern provinces, where indigenous communities mainly dwell, these provinces are predominantly rural and to an extent ‘un-integrated’ in the national mainstream. Related to health the NSDP focuses on ensuring equitable access to quality health services…

Royal Government of Cambodia, National Strategic Development Plan^[20]

Challenge 4 – Reach out-of-school children and build non-formal education system.

• Response 4: Measures to reduce the number children out of school with a specific focus on children from indigenous communities, children with disabilities, and children from poorer families, through targeted programs (…)

4.62 During the Fifth Legislature, RGC will intensify land reforms, focusing on strengthening the management, organization, utilization and distribution of lands that will contribute to reducing poverty, ensuring food security, protecting the environment and natural resources, and socio-economic development, within a market framework. RGC will focus on the following priorities: (…)

3. Accelerating land registration and issuance of land titles including for state lands, private lands and indigenous community lands through regular land registration process and further implementing the “Old Policy-New Action” policy giving priority to land titling in dispute-free areas in order to guarantee security of title and ensure confidence in land ownership (…) 4.63 To implement RGC’s priority policies for the Fifth Legislature, the Ministry of Land Management, Urbanization, and Construction (MLMUC) will take actions as follows: (…) Continue registering land titles for indigenous communities (…)

4.165 (…) Measures to reduce the number children out of school with focus on indigenous children, children with disabilities, and children from poor families.

CEDAW Committee, Concluding Observations on Cambodia^[21]

(…) it reiterates its previous concern about the lack of court cases on discrimination against women in the State party and the fact that there are significant barriers to access by women and girls to justice and effective remedies for violations of their rights, particularly for rural women, indigenous women (…) It also regrets the lack of representation of women belonging to ethnic minority groups and indigenous women in political and public life (…) The Committee welcomes the adoption of the action plan to prevent child marriage and teenage pregnancy in Ratanakiri Province for the period 2017–2021, which is aimed at ethnic communities and focused on increased prevention and response interventions. Nevertheless, it expresses concern that the rate of child marriage remains high in indigenous and rural communities and regrets the lack of measures adopted by the State.

Cambodia Indigenous Peoples Alliance, Situation of Indigenous Peoples^[22]

2. The lack of appropriate legal recognition of ‘indigenous people in Cambodia is among the reason for having no reliable statistical data on indigenous peoples. Further, it has been established and recognized that non-recognition of indigenous peoples’ profound relationship to their lands, territories and resources leads to gradual deterioration of their indigenous societies. This is profoundly true in Cambodia. Indigenous communities are recognized from their language but many of them have lost their ability to speak their own tongue affecting their confidence to declare their indigeneity. The loss of language is a result of long history of discrimination and lack of legal recognition of indigenous peoples that persists until today.

3. There are, however, laws and policies that refer to indigenous peoples in Cambodia and use varying terms such as ‘indigenous communities’, ‘indigenous ethnic minorities’ and ‘highland peoples’, but these effectively describe the same peoples. They include Bunong, Kui, Tompourn, Kroeung, Brov, Karvèt, Stieng, Kroal, Mil, Karchak, Por, Khoan, Chorng, Sui, Thmoun, Loun, Soauch, Rodè, Khe, Ro Orng, Spong, Loeun, Charay and Samrè. It is believed there are other communities of indigenous peoples that are yet to be identified and added in this list.

4. Among the main issues of indigenous peoples in Cambodia are the loss of their rights to land through economic land concessions (ELCs) and land conflicts, population growth and in-migration. The degradation of forest and general loss of their rights to their lands have gravely affected their impoverishment, education and health. (…)

8. RGC’s Forest Law of 2002 and Land Law of 2001 recognise indigenous peoples’ traditional use of land and the latter allows indigenous peoples to apply for community land titling (CLT). However, the process to apply for community land titling have been particularly challenging for indigenous peoples. As of December 2017, among 458 indigenous villages in fifteen (15) provinces, only nineteen (19) of them have their land registered as indigenous collective land titles or 16,271 hectares of land for 1,774 families. (…)

11. There have been 267 economic land concessions (ELC) granted in 2016x amounting to over 2 million hectares across Cambodia. These ELCs involve development projects such as large-scale agribusiness, mining and hydro-power development projects. At least 98 of these ELCs involve the lands, territories and resources (LTR) of indigenous peoples. None of these development initiatives that involve indigenous territories have gone through the process of FPIC. ELCs have always been discussions between companies and the RGC (…)

12. Furthermore, these 98 ELCs are mainly for rubber and other industrial plantations. The ELCs in Ratanakiri province alone cover 21% of the total provincial land areas. There are also two (2) dams currently operating while three (3) dams are under construction, and 7 are planned to be built along the Sesan Rivers. The Lower Sesan II (LS2) inaugurated in September 2017 resulted to fully submerging Kbal Romeas village in Stung Treng province, and displacing 83 families. Aside from the immediate impact of displacement, dams affect the overall land and water ecology of the affected areas. Studies have proven that indigenous peoples’ survival and overall wellbeing are tied to their LTR; lack of access and control over lands, and cutting ties from their LTR causes irreparable damage to indigenous peoples’ culture and tradition, livelihood, education, and health and overall development and wellbeing.

Minority Rights Group, World Directory of Minorities and Indigenous Peoples^[23]

The government recognizes community land titles (CLTs) through the Land Law of 2001, but the titles have been difficult to obtain. However, corruption and inefficiency among government officials have served to delay CLT issuance. The complexity and high costs of a communal land application – amounting to US$70,000 for each title – are also major barriers. The authorities have, however, taken some steps against illegal logging, which once again is particularly affecting the north-east region inhabited by indigenous communities. Nevertheless, it is thought that illegal logging has reduced the country’s forest cover from 13.1 million hectares in the 1973 to 8.7 million hectares in 2014. Sadly, the process appears to be accelerating: based on satellite imagery, the rate of forest clearance increased by 30 per cent in 2016 compared with the year before. Those defending their rights to land and a healthy environment are also under threat of targeted violence: Cambodia is one of the most dangerous places to be environmental rights defender, with many killed for their work in recent years, including indigenous activists. The government regularly targets environmental defenders through arbitrary detention and judicial harassment.

            The Lower Sesan 2 dam in Stung Treng province, one of the biggest dam projects in the country was completed in 2017 and has displaced some 5,000 people including indigenous Bunong and ethnic Lao since its operations began. As with other megaprojects, it has caused widespread devastation to local environments, livelihoods and cultural traditions, with some communities completely uprooted as a result of flooding.

Socfin, Policy for Responsible Management^[24]

3.2 Responsible development of its operations

The Socfin Group commits to eliminate deforestation and to respect the rights and consent of local communities in all its operations and supply chains. To that purpose the Socfin Group commits to:

(…) Respect the right of indigenous populations and local communities to give or withhold their Free, Prior and Informed Consent (FPIC) to all operations affecting the land or resources on which they have legal, community or customary rights.

3.3 Respect of Human Rights

The Socfin Group commits to:

• Respect and support the Universal Declaration of Human Rights,
• Recognise and respect the rights of all workers, including the workers of its subcontractors, temporary workers and migrant workers,
• Recognise and respect the rights of local and indigenous communities,
• Maintain a transparent and open dialogue with local populations.

Hak et al, Impact of Government Policies and Corporate Land Grabs^[25]

This article has argued that the Cambodian government incoherent laws and policies on ELCs and CLTs undermined indigenous people’s access to common land. The ELCs in the two villages did not provide significant benefits to local people in terms of employment opportunities and poverty alleviation as expected in the government’s proclaimed goals of long-term investment in agriculture. They in fact further diminished communities’ forest resources through logging and forest clearance. Indigenous villagers are being restrained from accessing their common land by the government laws and policies such as the Forestry Law of 2002, which prohibits land clearance inside protected areas. Yet, their common land was encroached upon by corporations, powerful elite, and landless in-migrants. (…) Likewise, the ELCs did not provide monetary compensation or jobs to the local communities. Instead, the companies employed Khmer in-migrants who exacerbated communal land grabbing. The loss of common resources upon which indigenous livelihoods used to rely severely weakens their adaptive capacity and ecological resilience.

            Moreover, the ELC-influenced policy drive for cash crop production in the study commune resulted in further livelihood transitions and land use changes that culminated in income inequality and social differentiation. This cash crop trend pushed the transitions of indigenous people’s livelihoods relying on natural resources (in 2003) to livelihoods relying on cash crops (in 2012) to livelihoods struggling to be resilient in the face of price downturns (in 2018). While the crop boom stimulated economic growth, the practice exacerbated the diminishing state of forest and land resources. This process, driven by the state-sponsored market economy, also resulted in economic inequality. While the better-off households substantially improved their income through amassing more land, poor households earned very little or even suffered losses from their cash crop cultivation. This widening income inequality and social differentiation is likely to further reduce economic and social resilience among the indigenous communities.

            With limited exit strategies, poor indigenous farmers will continue to be threatened with commons grabbing and ensuing “resilience grabbing” by market forces of land commodification. In the face of external threats (including intrusions by in-migrants) and increasing pressure on access to land and forest resources, there is definitely a need to strengthen transnational social movements and human rights advocacy and implement land titling strategies that benefit the poorest and most vulnerable groups in rural Cambodia. Otherwise indigenous people’s land areas will continue to recede and the success of their livelihood transitions will remain precarious at best.

            To conclude, this article reveals that land grabbing adversely affects communal solidarity and local governance effectiveness. It also demonstrates how commons grabbing—including land sales within the indigenous communities—undermines livelihood resilience and limits the capacity of indigenous people to deal effectively with policies and strategies implemented by much more powerful forces. The Khmer-dominated Cambodian government continues to operate with a different understanding of law, legality, and conflict resolution, and multinational and domestic corporations (through the acquisition of ELCs) wield tremendous economic and political power to pursue their interests with impunity and at the expense of customary landholders. (…)

Pen & Chea, Failure to Secure Indigenous Peoples’ Rights to Access Land^[26]

The majority of the challenges identified in this report derive from a failure to apply the domestic legal framework – these are, the laws, policies and regulations that the government itself has developed. The granting and management of economic and other land concessions in Cambodia suffers from a lack of transparency and adherence to existing laws. Many of the legal frameworks on these matters are relatively well-developed on paper, but the challenge of correctly implementing the procedure of Collective Land Titling remains large.

            The experience gathered in Sre Ktum and Samuth Krom illustrates that community empowerment is key to claiming resources through administrative procedures such as Collective Land Tilting, Community Forestry and Community Protected Areas. However, the weak leadership, by-laws and internal rule enforcement procedures created serious internal problems and internal conflict, while various external forces first led to the dissolving of community land, then to the alienation of indigenous land. Partnership monitoring should be put in place to ensure that indigenous land is fully protected after granting the title, which would in turn strengthen community organization and economic development.

            An appropriate community administrative procedure should be developed and provided as on-job training, with an additional plan and a small fund supporting an adequate adaptation of the Indigenous Community Committee. On the other hand, the functioning of the Indigenous Communities Committee is closely related to each individual family’s livelihood as well as to community funds, which should be aimed at improving effective land use rather than having community members solving their financial problems by selling land to outsiders – against by-laws and tradition. The experience gathered in the village of Samuth Krom has provided a valuable lesson on the importance of strong collaboration between communities and local administrative authorities in order to prevent ELCs or others from taking indigenous land. Social empowerment can sometimes be stronger than legal papers, such as in Sre Ktum where policy makers and implementers have explored the practical approach, using interim protective measures in the right way and at the right time, according to the Land Law. Still, indigenous land security needs to be further addressed, especially as regards legal titling procedures in the context of large-scale land grabbing by ELCs.

Questions

1. Given its ratification record of international treaties, what are Cambodia’s international obligations for respecting, protecting and fulfilling the rights of the indigenous people?
2. What does ‘free, prior and informed consent’ mean?
3. What should the company and the government do if indigenous people reject a business project on the lands they inhabit?
4. Can the Cambodian economy develop without harming indigenous people?
5. Where would you look for best practice on how to strike the right balance between economic development and indigenous peoples’ rights?

Further Readings

• Food And Agriculture Organization (FAO),  Voluntary Guidelines on the Responsible Governance of Tenure (VGGT) of Land, Fisheries and Forests in the Context of National Food Security (2012) (Khmer Version) https://landportal.org/node/43232.
• UN Expert Mechanism on the Rights of Indigenous Peoples, Good Practices and Challenges, Including Discrimination, in Business and in Access to Financial Services by Indigenous Peoples, in Particular Indigenous Women and Indigenous Persons with Disabilities (2017) www.undocs.org/en/a/hrc/36/53. 
• Victoria Tauli-Corpuz, Report on Attacks and Criminalisation of Indigenous Human Rights Defenders, Report of the UN Special Rapporteur on the rights of indigenous peoples A/HRC/39/17 (2018) http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/39/17.
• Victoria Tauli-Corpuz, Impacts of Climate Change and Climate Finance on Indigenous Peoples’ Rights, Report of the UN Special Rapporteur on the rights of indigenous peoples A/HRC/36/46 (2017) http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/46.
• UN, World Conference on Indigenous Peoples (2014) www.un.org/development/desa/indigenouspeoples/about-us/world-conference.html.
• UN Permanent Forum on Indigenous Issues, www.un.org/development/desa/indigenouspeoples/.
• International Council on Mining and Minerals (ICMM), Good Practice Guide: Indigenous Peoples and Mining (2015) https://www.icmm.com/website/publications/pdfs/social-performance/2015/guidance_indigenous-peoples-mining.pdf.
• OECD, Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector, ‘ANNEX B: Engaging with Indigenous Peoples’ (2017) www.oecd-ilibrary.org/governance/oecd-due-diligence-guidance-for-meaningful-stakeholder-engagement-in-the-extractive-sector_9789264252462-en.
• Survival, The World’s Threatened Tribal Peoples, www.survivalinternational.org/tribes.
• Alejandro Fuentes, Exploitation of Natural Resources and Protection of Indigenous Peoples’ Communal Property over Traditional Lands and Territories: A Summary of the Inter-American Court of Human Rights’ Safeguards, Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Research Brief (2016) https://rwi.lu.se/app/uploads/2017/04/ExploitationNaturalResources_2016.pdf.
• Rio Tinto, Why Cultural Heritage Matters (2011) www.riotinto.com/documents/ReportsPublications/Rio_Tinto_Cultural_Heritage_Guide.pdf.
• Cultural Survival, Quarterly Magazine https://www.culturalsurvival.org/publications/cultural-survival-quarterly/back-issues
• គោលនយោបាយជាតិស្តីពីការអភិវឌ្ឍសហគមន៍ជនជាតិដើមភាគតិច (2009) https://web.archive.org/web/20190712225752/http://ebooks.libraryrule.com:80/images/pdf_file_item/a0ef14d817e9190a33e2389e11639c50.pdf
• ជនជាតិភាគតិច និងជនជាតិដើមភាគតិច (2019) https://opendevelopmentcambodia.net/km/topics/ethnic-minorities-and-indigenous-people/
• Diana Vinding and Cæcilie Mikkelsen (eds.), The Indigenous World 2016, https://www.iwgia.org/images/publications//0740_THE_INDIGENOUS_ORLD_2016_final_eb.pdf.
• Cambodian Center for Human Rights (CCHR), Cambodia: Land in Conflict: An Overview of the Land Situation (2013) https://cchrcambodia.org/admin/media/report/report/english/CCHR%20Report%20%20Cambodia%20Land%20in%20Conflict%20An%20Overview%20of%20the%20Land%20Situation%20ENG.pdf.
• FIDH (International Federation for Human Rights), Cambodia Land Cleared for Rubber Rights Bulldozed: The Impact of Rubber Plantations by Socfin-KCD on Indigenous Communities in Bousra, Mondulkiri (2011) https://www.fidh.org/IMG/pdf/report_cambodia_socfin-kcd_low_def.pdf.
• Inclusive Development International, Vietnamese Argibusiness Giant HAGL Destroys Indigenous Lands (2020) https://www.inclusivedevelopment.net/vietnamese-agribusiness-giant-destroys-indigenous-lands/.
• International Work Group for Indigenous Affairs (IWGIA), Information Received from Non-Governmental Organizations with ECOSOC Consultative Status (2007) https://www.un.org/esa/socdev/unpfii/documents/6_session_tebtebba_iwgia.pdf.
• Men Prachvuthy, Land Acquisition by Non-Local Actors and Consequences for Local Development, RUPP (2011) http://www.landgovernance.org/assets/2014/07/Cambodia_landacquisition_impacts_indigenouspeople.pdf.
• Men Prachvuthy, Impacts of Economic Land Concessions on the Livelihoods of Indigenous Communities in Northeast Provinces of Cambodia (2011) http://www.landgovernance.org/assets/2014/07/Cambodia_landacquisition_impacts_indigenouspeople.pdf.
• Inclusive Development International et al., Re: Complaint Concerning IFC investment in Dragon Capital Group and VEIL (Project no. 10740 and 20926), [letter to Meg Taylor, Vice President of the Office of the Compliance Advisor Ombudsman, International Finance Corporation] (2014) http://www.cao-ombudsman.org/cases/document-links/documents/ComplainttoCAOreDragonCapital-HAGL.pdf.
• Natalie Bugalski & Thuon Ratha, A Human Rights Impact Assessment of Hoang Anh Gia Lai Economic Land Concessions in Ratanakiri, Cambodia (2015) https://www.iss.nl/sites/corporate/files/CMCP_28-_Bugalski___Ratha.pdf.
• Paul Michael Taylor, Ethnic Minorities and Indigenous Peoples of Cambodia (2006) https://www.researchgate.net/publication/331976861_Ethnic_Minorities_and_Indigenous_Peoples_of_Cambodia. 
• The NGO Forum on Cambodia, Indigenous People Rights Project (2013) https://www.ngoforum.org.kh/indigenous-people-rights-project/.
• Royal Government of Cambodia, National Strategic Development Plan 2019-2023 (2019) http://www.mop.gov.kh/DocumentEN/NSDP%202019-2023%20in%20English.pdf.
• Office of the UN High Commissioner for Human Rights Cambodia, Economic Land Concessions in Cambodia: A Human Rights Perspective (2007) https://cambodia.ohchr.org/en/economic-social-rights/economic-and-other-land-concessions.
• UNDP, Human Development Report Cambodia – Sustaining Natural Resources for All (2019) http://hdr.undp.org/sites/default/files/nhdr_cambodia.pdf.

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^[1] International Finance Corporation (IFC), Guidance Note 7 – Indigenous People (2012) www.ifc.org/wps/wcm/connect/4b976700498008d3a417f6336b93d75f/Updated_GN5-2012.pdf?MOD=AJPERES.

^[2] United Nations Declaration on the Rights of Indigenous Peoples (2007) www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf.  

^[3] International Labour Organisation (ILO), Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No. 169) (1989) www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169.

^[4] International Finance Corporation (IFC), Performance Standard 7: Indigenous Peoples (2012)

https://www.ifc.org/wps/wcm/connect/115482804a0255db96fbffd1a5d13d27/PS_English_2012_Full-Document.pdf?MOD=AJPERES  (references omitted).

^[5] James Anaya, Extractive industries and indigenous peoples, Report of the Special Rapporteur on the rights of indigenous peoples, A/HRC/24/41 (2013) www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session24/Documents/A-HRC-24-41_en.pdf.

^[6] UN Expert Mechanism on the Rights of Indigenous Peoples, Free, Prior and Informed Consent: A Human Rights-Based Approach (2018) https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/245/94/PDF/G1824594.pdf?OpenElement.

^[7] Inter-American Court of Human Rights, Saramaka People v. Suriname (2007) www.corteidh.or.cr/docs/casos/articulos/seriec_172_ing.pdf.

^[8] UN Global Compact, The Business Reference Guide to the UN Declaration on the Rights of Indigenous Peoples (2013) www.unglobalcompact.org/docs/issues_doc/human_rights/IndigenousPeoples/BusinessGuide.pdf.

^[9] S. James Anaya and S. Puig, ‘Mitigating State Sovereignty: The Duty to Consult with Indigenous Peoples’, 67 University of Toronto Law Journal 435 (2017) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2876760.

^[10] Deanna Kemp and John R. Owen, ‘Corporate Readiness and the Human Rights Risks of Applying FPIC in the Global Mining Industry’, Business and Human Rights Journal, 2 (2017) https://www.researchgate.net/publication/311445647_Corporate_Readiness_and_the_Human_Rights_Risks_of_Applying_FPIC_in_the_Global_Mining_Industry.

^[11] Lim Sovannara, Kem Keothyda, Indigenous People: Political Rights, Culture, Education and Health Care (2015)  https://www.pic.org.kh/images/2015Research/20160407_Indigneous%20Peoples%20Political%20Rights%20Culture%20Education%20and%20Health%20Care_EN.pdf.

^[12] Baromey Neth, Sam Ol Rith, & Makoto Yokohari, Development without Conformity: Impacts of Large-scale Economic Development on Indigenous Community Livelihoods in Northeastern Cambodia (2013) http://iserd.net/ijerd42/42014.pdf.

^[13] Cambodia, Constitution of the Kingdom of Cambodia (1993) https://www.ccc.gov.kh/detail_info_en.php?_txtID=791.

^[14] Cambodia, Land Law (2001) http://www.sithi.org/temp.php?title=Land-Law-&url=law_detail.php&lg=&id=17.

^[15] Cambodia, Law on Forestry (2002) https://data.opendevelopmentmekong.net/laws_record/law-on-forestry.  

^[16] Cambodia, Protected Areas Law (2008) http://www.cambodiainvestment.gov.kh/law-on-nature-protection-area-protected-areas-law_080104_080104.html.

^[17] Cambodia, Sub-Decree on Procedure of Registration of Land of Indigenous Communities, No. 83 (2009) http://www.nea.gov.kh/nweb/law_reg/5molm/6_sd_83_ank.pdf.

^[18] Cambodia, Sub-Decree on Community Forestry, No. 79 (2013) http://www.cambodiainvestment.gov.kh/sub-decree-79-on-community-forestry-management_031202.html.

^[19] Cambodian Ministry of Industry and Handicraft, Indigenous Peoples Planning Framework: Water Supply and Sanitation Improvement Project (2018) http://www.mih.gov.kh/File/UploadedFiles/9_27_2018_4_43_56.pdf.

^[20]  Royal Government of Cambodia, National Strategic Development Plan 2014-2018 (2014) http://planipolis.iiep.unesco.org/sites/planipolis/files/ressources/cambodia_nsdp_2014-2018.pdf.

^[21] UN Committee on the Elimination of Discrimination Against Women, Concluding Observations on the Sixth Periodic Report of Cambodia (2019)http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsglff%2FiazrVw%2BcyfdY9GxZ5bSfxXA5KrNzKiYSQz0rFB5gi2CnbaBYZjQXYsuDPG8zwJOMQYrnR0kzrDfbbRUOLlP9FY3Pa3qLqF8UVCDJxW.

^[22] Cambodia Indigenous Peoples Alliance (CIPA), Cambodia Indigenous Youth Association (CIYA)  & Asia Indigenous Peoples Pact (AIPP), Situation of Indigenous Peoples in Cambodia, Submission for the 3rd Cycle of Universal Periodic Review of Cambodia (2019) https://www.upr-info.org/sites/default/files/document/cambodia/session_32_-_january_2019/js1_upr32_khm_e_main.pdf.

^[23] Minority Rights Group International, World Directory of Minorities and Indigenous Peoples – Cambodia: Indegenous Peoples (2017) https://www.refworld.org/docid/5b9b75bf7.html.

^[24] Socfin, Socfin Group Policy for Responsible Management (2017)  https://www.socfin.com/sites/default/files/2018-12/2017_03_22_Policy_responsible_management.pdf.

^[25] Sochanny Hak, John McAndrew & Andreas Neef,  Impact of Government Policies and Corporate Land Grabs on Indigenous People’s Access to Common Lands and Livelihood Resilience in Northeast Cambodia (2018) https://res.mdpi.com/d_attachment/land/land-07-00122/article_deploy/land-07-00122.pdf.

^[26] Ratana Pen & Phalla Chea, Failure of International and National Policies to Secure the Indigenous Peoples’ Rights to Access Land and Resources (2015) https://ticambodia.org/library/wp-content/files_mf/1453192908LARGESCALELANDGRABBINGINCAMBODIA.pdf.