UK Environment Bill must recognise indigenous peoples’ rights to land and consent
Former United Nations experts and others say proposed change to Bill is encouraging but doesn't go far enough
A few weeks back Baroness Maggie Jones, a Labour peer, did something little-noticed but potentially momentous. In a tentative first step towards reversing decades of abuses, exploitation and theft, she proposed amending the UK Environment Bill, currently with the House of Lords, so that operators in the UK can only trade in certain goods if “free, prior and informed consent has been obtained from affected indigenous peoples and local communities.”
Jones is proposing to amend a section towards the Bill’s end on “forest risk commodities” - or products derived from such commodities - apparently intended to clean-up the UK’s supply-chains and curb its complicity in deforestation around the world, particularly in countries like Brazil and Indonesia. Among other deficiencies, as NGOs like Global Witness and Forest Peoples Programme have highlighted, there is currently no mention of human rights or the indigenous peoples and others who live in forests and/or rely on them for their livelihoods and survival. How can you help protect the world’s forests if you ignore those who know them best and stand to lose the most when they’re razed?
“Labour welcomes the government’s plans for the use of forest risk commodities by companies, but it’s vital we get these provisions right,” Baroness Sue Hayman, another Labour peer, tells me. “Despite long contributing to the safeguarding of forests, many indigenous communities lack secure legal rights. Requiring their free and informed consent will hopefully see the reduction - and eventual eradication - of violent forced evictions.”
“FPIC”, a common acronym for free, prior and informed consent, is an internationally-recognised, self-determination-based indigenous rights safeguard. According to Cathal Doyle, a Middlesex University academic and author of a 2015 book on the subject, it has “gradually become the norm in the context of resource exploitation impacting on indigenous people” under “human rights and environmental [legal] regimes, as well as other normative frameworks and voluntary standards”, with a “substantial body of jurisprudence” having emerged. To date, it has been affirmed and/or accepted by myriad institutions worldwide, including the United Nations (UN) in its Declaration on the Rights of Indigenous Peoples, the legally-binding Convention on Biological Diversity, various Treaty Bodies and Special Rapporteurs, as well as international, national and regional courts and commissions, legislation in various countries, numerous multilateral and private banks, some large companies, conservation organisations and voluntary certification standards.
And now possibly the UK too.
“There’s a rush to recognise FPIC,” says Doyle, who recently gave a presentation on the issue to Suriname’s government, “although how sincere they are I don’t know and immense implementation challenges remain.”
But what do indigenous people themselves, particularly those who have experience with FPIC, think of Jones’s proposed amendment? If approved, there would still be no mention of rights - not to land nor anything else, not even regarding FPIC itself - in the Bill, while a reference to complying with “relevant local laws” on land ownership and land use seems dangerously ambiguous and would ignore international human rights and environmental laws and standards. Relying on “local laws” rather than international ones might mean relying on no laws at all, or discriminatory ones, or weak ones that aren’t enforced, or ones that, ironically, enable governments, companies or others to argue that consent isn’t required after all.
“I definitely think it’s an important development for an environmental law of a rich country to include FPIC because it’s become one of indigenous peoples’ basic rights,” Victoria Tauli-Corpuz, a former UN Special Rapporteur on Indigenous Peoples, tells me. “It would have an impact and could influence bilateral support from the UK to other countries. I don’t think there’s a rich country having an FPIC article. Maybe this will be the first.”
Nevertheless, Tauli-Corpuz, a Kankanaey Igorot woman from the Philippines, believes the amendment should go further. Depending only on local laws would be ineffective, she says, and indigenous peoples’ rights must be explicitly recognised - irrespective of whether their own governments formally do so.
“That’s always been our position: FPIC doesn’t depend on legal recognition as long as indigenous peoples occupy the forest,” Tauli-Corpuz says. “The reality is that a lot of countries don’t recognise customary tenure and don’t have such “local laws.””
Her predecessor as UN Special Rapporteur, James Anaya, feels similarly. He describes including FPIC as a “step in the right direction”, “pretty obvious” and “almost discriminatory to think you’d do something different”, but emphasises that FPIC on its own and relying only on “local laws” wouldn’t be sufficient.
“The larger issue is land rights, of course,” says Anaya, until recently the Dean of the University of Colorado Boulder Law School in the US. “The most progressive provision for the Bill would be to advance the recognition of land rights as defined by international standards and make that a condition. In theory, international law recognises indigenous peoples’ rights based on their own customary land tenure. We see that in a number of documents and cases, and in practice that has been enforced through different court judgments, especially the Inter-American Court. So the law could say, if it really wants to take seriously what it’s trying to accomplish, “Forest products shan’t be taken out of indigenous peoples’ traditional lands over which they have customary and historical land tenure without their free, prior and informed consent, regardless of whether or not that land is recognised by the state.” That should be in there. Otherwise, that other provision [on local laws] kicks in and it weakens the consent or problematises it. For this to be serious it has to be about more than just general FPIC.”
Anaya warns that if land and other rights aren’t acknowledged too, then FPIC is destined to fail. “Unless it’s premised on recognition of other rights, FPIC just doesn’t work. That’s because it’s a safeguard - a safeguard for the protection of rights. I’m not the only one who says that. The Inter-American Court has said that too, and the framing of the language in the UN Declaration and International Labour Organisation’s Convention 169 is that.”
Norman Jiwan, from Indonesia, echoes Anaya’s concerns. He calls the proposed amendment a “great idea” and “desperately needed” because “lack of FPIC in the Indonesian palm oil industry has caused massive land conflicts”, but agrees on the importance of a more effective, holistic rights recognition.
“Our Constitution recognises indigenous rights, but we don’t have the legislative frameworks or operational laws or enforcement to really protect them,” Jiwan, a Kerambai Dayak man working with the NGO TuK Indonesia, tells me. “So if UK law doesn’t require rights, it won’t require the active role of the private sector in recognising them, or remedying impacts when land-grabs happen. The government can easily say: “You’re not requiring land rights in the consent process, so you can’t force us to hold the private sector accountable or responsible for conflicts and land-grabbing.” That’s why I think not only consent but rights are important.”
As Baroness Hayman herself told me, they want to “get these provisions right.” I couldn’t agree more, but doing that means strengthening the amendment proposed by her colleague, due to be discussed imminently in the Lords. Otherwise, any new law risks being ineffective and leaving millions of people living in forests worldwide as vulnerable as ever.