Protecting collective land rights through corporate due diligence: key principles

Lan Mei, Lawyer at the Forest Peoples Programme, explains a new guide to assist policymakers and businesses in understanding key elements of effective due diligence on collective land rights, Stepping up: protecting collective land rights through corporate due diligence.

The growing momentum towards mandatory human rights and environmental due diligence (HREDD) is welcome news for indigenous rights and collective land rights advocates.

Soft law instruments and voluntary standards for businesses started with the adoption of the UN Guiding Principles on Business and Human Rights (UNGPs) a decade ago. However, they have failed to live up to expectations that they would contribute to the respect and protection of human rights, particularly indigenous people’s rights. Indigenous and other peoples holding collective land rights continue to experience loss of their customary lands and resources, destruction of their cultural heritage, forced evictions, and violence against indigenous rights defenders.

Certification schemes such as the Roundtable on Sustainable Palm Oil (RSPO) and the Forest Stewardship Council (FSC) recognise indigenous peoples’ rights in sectoral standards, but effective enforcement and remedy is lacking. Even if the RSPO condemns a particular oil palm plantation, for example, a palm oil mill may still retain its membership despite buying from that plantation. Similarly, a group of companies may retain their FSC certification even if members within the group have their membership suspended for indigenous rights violations.

Mandatory human rights due diligence could make the difference in achieving positive human rights outcomes, but only if HREDD processes are outcome-oriented and address the specific circumstances faced by rights-holders.

Most recently, Germany adopted a new supply chain law that requires large companies to identify and address adverse human rights and environmental impacts in their direct supply chains. While a positive step, human rights groups have commented on gaps in this new law. For example, it only requires due diligence to the first tier in the supply chain: this means that indirect suppliers and their practices remain invisible. This renders the law largely ineffective for collective land rights-holders, who interact with commodity supply chains further upstream.

The Forest Peoples Programme recently published Stepping Up: Protecting collective land rights through corporate due diligence. The guide gives specific recommendations and highlights key characteristics of what effective HREDD requires in relation to indigenous peoples and other collective land rights-holders:

  • Due diligence must be conducted across the entirety of a business’s value chain. Due diligence that is limited to direct suppliers will overlook violations occurring further upstream in the supply chain. In commodity value chains, such violations often include dispossession of and damage to indigenous peoples’ traditional lands, as well as harassment, threats, and violence against indigenous peoples. Businesses can push due diligence requirements up the supply chain through clauses in supplier contracts, for example, and should independently verify supplier due diligence conduct.
  • Due diligence must be dynamic. Businesses must progressively improve their due diligence over time. This way, they can achieve comprehensive coverage across all their value chains and adjust their business practices, policies, strategies, model, operations and relationships as needed to address systemic drivers of negative human rights impacts. Those improvements need to be measured against, and drive improvements in, human rights outcomes. It may, for example, be necessary to consider the ways in which the operation of the palm oil industry as a whole drives violations of indigenous rights and what changes need to be made to practices across the industry to address such violations.
  • Due diligence must centre on rights-holder participation. Not only is failure to ensure the effective participation of rights-holders a rights violation in and of itself, but it will also likely mean that due diligence actions are ineffective. It is important, for example, to engage with indigenous rights-holders and defenders, including through the conduct of human rights impact assessments, to identify rights abuses; to understand desired remedies for violations; and to understand the ways in which companies can support their safety and security. Notably, companies must seek information from indigenous communities and organisations working with them to identify affected rights-holders in the first instance, particularly given the widespread lack of legal recognition of indigenous peoples’ customary lands.
  • Due diligence must investigate violations that may have commenced in the past. It is a common issue that an infringement of indigenous peoples’ land rights began prior to a given company’s involvement in the value chain. However, those rights violations are very often ongoing, and it is incumbent upon companies to identify such types of violations in their value chains and to take action to address them.

The complexity of global value chains and business operations means that there can be no one-size-fits-all approach to due diligence and that context-specific approaches are needed. This means that the expertise of affected rights-holders and experiences of human rights experts and advocates can assist policymakers and businesses in crafting legislation and policies that will enable human rights due diligence to be fit for purpose. It is important to remember that the ultimate goal is not mandatory due diligence obligations for businesses; rather, due diligence is just one tool to help ensure improved human rights outcomes.