Three Steps Companies Should Take to Protect Land Rights

This blog was originally appeared on Quartz.

When Leonardo DiCaprio won a Golden Globe in January for his work in "The Revenant," he paid tribute to indigenous communities around the world. “It is time that we recognized your history, and that we protect your indigenous lands from corporate interests and people that are out there to exploit them,” he said. And he’s right. The land of indigenous people needs to be protected, and it can’t be without a commitment by governments and corporations to do so.

Indigenous peoples, living in more than 70 countries—including in the Unites States—and representing approximately 5% of the world’s population, remain some of the world’s most marginalized communities. They have lower levels of literacy, higher rates of poverty and malnutrition, and less access to health services than other members of society.

Indigenous communities also experience higher rates of landlessness and displacement, which impedes their ability to ensure their economic wellbeing and cultural heritage. As the United Nations state, “the survival and development of indigenous peoples’ particular ways of life, their traditional knowledge, their handicrafts and other cultural expressions have, since time immemorial, depended on their access and rights to their traditional lands, territories and natural resources. But land is not only the basis of the indigenous economy. Indigenous peoples also have a deep spiritual relationship with the land; they feel at one with their ancestral territory and feel responsible for the healthy maintenance of the land—its waters and soils, its plants and animals—for both themselves and future generations.”

While access to traditional land remains fundamental to the wellbeing of indigenous groups, “land grabs” by governments and corporations are on the rise. In the last decade, national governments have sold over 81 million acres of land—much of it indigenous—to foreign investors without the permission of those inhabiting the land. In Cambodia, for example, more than 400,000 indigenous peoples have been forcibly evicted from lands since 2003 to allow for the production of rubber and sugar and the construction of new properties. In Guatemala, in 2001, 760 indigenous families were forced off of their land in Guatemala’s Polochic Valley to make way for sugar cane production. 

These land grabs are in direct violation of internationally recognized human rights standards, including both ILO Convention 169 on rights of indigenous and tribal people and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Under Article 10 of UNDRIP, indigenous peoples have the right to not be forcibly removed from their lands: Any relocation must be contingent on the “free, prior and informed consent” of those inhabiting the land.

The right to Free, Prior and Informed Consent (FPIC) is essential to the protection of indigenous land and culture. It should be protected by states through national legislation and respected by companies through their human rights due diligence activities.

As a consultant working with business on human rights, I often advise companies on how best to avoid complicity in land grabs. Whether it is food and beverage companies concerned that their suppliers may be growing produce on indigenous land without community consent, extractives companies seeking to extract natural resources on indigenous land, or hotel companies expanding into growth markets where indigenous groups have historically claimed rights – companies across the globe are increasingly faced with concerns regarding land rights. In these cases, companies should:

  • Commit to respecting land rights of indigenous communities and to avoid causing or contributing to land grabs through a public commitment or policy.
  • Conduct ongoing human rights due diligence throughout their value chain to understand where actual and potential risks lie.
  •  Commit, where the use of indigenous land is sought, to respecting the principles of free, prior and informed consent and respect the decision of indigenous groups—whether they choose to provide consent or not.  

This requires that the indigenous group’s decision in each case be free from coercion, intimidation or manipulation. Prior to any decision or action related to the land, companies need to ensure that affected indigenous communities have sufficient time to determine what is in the best interest of their community. And companies have to make sure that indigenous groups are informed by all relevant information related to the proposed activity, both through direct, inclusive engagement and by providing relevant documents, resources and studies.

It is only when all off these principles are met that an indigenous community is able to provide—or withhold—its consent.

There are already positive examples of companies seeking to ensure respect for indigenous land rights. Oxfam’s Behind the Brands campaign—which ranks ten of the world’s largest food and beverage companies on their performance related to seven key issues, including land—has led Coca-Cola, Nestle, and PepsiCo to commit to “zero tolerance” for land grabs throughout their supply chains. Coca-Cola followed their commitment up by undertaking nearly 30 independent third-party country studies to understand land rights risks at a country level and issuing guidance to their suppliers on respecting land rights.

These steps should be applauded. For indigenous communities to access their rights, however, the commitments of these companies should be the rule, not the exception.