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ILO Convention 169 and the Private Sector: Questions and Answers for IFC Clients (March 2007)

ILO Convention 169 and the Private Sector: Questions and Answers for IFC Clients (March 2007)

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Published by IFC Sustainability
The ILO Convention 169 and the Private Sector publication is intended as a practical guide for IFC clients who operate in countries that have ratified Convention 169 on Indigenous and Tribal Peoples. It is the first guidance of its kind written for the private sector in relation to Convention 169 which is directed at governments. IFC prepared this publication, in close consultation with the ILO, in response to the experiences that IFC has had in recent years with private investments affecting indigenous peoples and their lands in Latin America.

IFC hopes this publication will help to raise awareness about the Convention and its possible implications for private sector companies, and provide added clarity and guidance for IFC clients. The publication should be read in conjunction with IFC's Performance Standard on Indigenous Peoples.
The ILO Convention 169 and the Private Sector publication is intended as a practical guide for IFC clients who operate in countries that have ratified Convention 169 on Indigenous and Tribal Peoples. It is the first guidance of its kind written for the private sector in relation to Convention 169 which is directed at governments. IFC prepared this publication, in close consultation with the ILO, in response to the experiences that IFC has had in recent years with private investments affecting indigenous peoples and their lands in Latin America.

IFC hopes this publication will help to raise awareness about the Convention and its possible implications for private sector companies, and provide added clarity and guidance for IFC clients. The publication should be read in conjunction with IFC's Performance Standard on Indigenous Peoples.

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Categories:Types, Research
Published by: IFC Sustainability on Jun 29, 2009
Copyright:Attribution Non-commercial

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12/22/2013

 
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Understanding the rights and perspectives of indigenous and tribal peoples affected byprojects is an important but sometimes complexissue for IFC clients, particularly in relation toextractive or infrastructure projects. Private sector companies need to be aware of the variouslegal, reputational, and business risks they mayrun when implementing projects with potentialimpacts on indigenous and tribal peoples and, atthe same time, of the opportunities of formingpartnerships with these peoples and deliveringdevelopment benefits to them.Indigenous peoples' groups and other stakeholders often raise responsibilities of IFCclients in relation to ILO Convention 169 onIndigenous and Tribal Peoples. ILO Convention169 is directed at governments, not the privatesector, so its relevance to IFC clients is usuallyindirect (though there may be instances whencompanies are held directly responsible for itsimplementation). However, the Convention isused as a reference point by indigenous andtribal peoples themselves and by other civilsociety stakeholders in projects.If an IFC client is implementing a project wheregovernment's actions mean that the project doesnot meet the requirements of the Convention, itcan find itself accused of “breaching” theprinciples of the Convention or of violating rightsprotected under the Convention. This hasoccurred in relation to several IFC-financedprojects in Latin America, and such complaintshave sometimes contributed to troubledcommunity relations and project delays.The implementation of the Convention in thecontext of private sector projects (directly bygovernments or indirectly by private companies) willsupport a more open and inclusive approach toprivate investment. In this way, the private sector also benefits from government ratification andadherence to the Convention. Compliance with theConvention will not only protect indigenous andtribal peoples’ rights, but will promote the interestsof private business by laying the groundwork for apositive and socially responsible investmentenvironment.This note seeks to address the main questions aboutthe Convention's content, its legal scope, the risksnon-compliance might pose for the private sector,and practical approaches that can be adopted torespond to the requirements of the Convention.In adopting a Question and Answer framework, thisnote provides practical assistance for IFC and itsclients, and for other stakeholders, in the context of projects that impact or potentially impact uponindigenous peoples. It is intended to assist allparties in better understanding how Convention169 relates to projects.This note should be read in conjunction with IFC'sPerformance Standard 7 on Indigenous Peoples,which contains direct requirements for IFC clientswhen projects impact such peoples. ThePerformance Standard also has an associatedGuidance Note. As many of the principles withinConvention 169 have been encapsulated withinIFC policies, understanding the Convention will alsoassist with understanding how best to implement thePerformance Standards.
ILO Convention 169and the Private Sector 
Questions and Answers for IFC Clients
March 2007
 
 What are the key obligations under Convention 169?
ILO Convention 169 on Indigenous and Tribal Peoples isone of the key instruments in the body of international lawrelating to indigenous peoples. Adopted in 1989, theConvention has been ratified by only 18 countries (as of January 2007) of which 13 are in Latin America (Argentina,Bolivia, Brazil, Colombia, Costa Rica, Dominica, Ecuador,Honduras, Guatemala, Mexico, Paraguay, Peru, and Venezuela). The other countries that have ratified theConvention to date are Denmark, Fiji, Norway, theNetherlands, and Spain.The key relevant provisions in the Convention require that:Governments develop coordinated and systematic actionto protect the rights of indigenous and tribal peoples.Governments consult these peoples through appropriateprocedures and representative institutions when applyingthe Convention's provisions, and ensure their participation in the process of development.Governments ensure that indigenous and tribal peopleshave the right to decide their own priorities for theprocess of development.Governments respect indigenous and tribal peoples'special relationship with lands, which includes territoriesboth occupied and used.The rights of ownership and possession over landstraditionally occupied are recognized and governmentstake steps to identify these peoples' lands, and toestablish procedures to resolve land claims.The rights to natural resources on lands and territoriesare safeguarded, including the right to participate in theuse, management and conservation of resources.Where the State retains ownership of mineral and sub-surface resources, indigenous and tribal peoples shouldbe consulted prior to programs of exploration or exploitation of resources and wherever possibleparticipate in the benefits of exploitation and receivecompensation for damage resulting from exploitation.Indigenous and tribal peoples should not be removedfrom lands except where necessary as an exceptionalmeasure and with their free and informed consent. If consent cannot be obtained, relocation should onlyoccur in compliance with due legal process.Whenever possible, indigenous and tribal peoplesshould have the right to return to traditional lands, or toreceive compensation if return is not possible.
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ILO Convention 169:Key Questions
What groups are covered by the Convention?Who has legal obligations under Convention169?
The Convention applies to (a) “tribal peoples inindependent countries whose social, cultural andeconomic conditions distinguish them from other sections of the national community, and whose status isregulated wholly or partially by their own customs andtraditions or by special laws and regulations”; and (b)“peoples in independent countries who are regarded asindigenous on account of their descent from thepopulations which inhabited the country...at the time of the conquest or colonization or the establishment of thepresent state boundaries and who, irrespective of their legal status, retain some or all of their won social,economic, cultural and political institutions.” Self-identification is regarded as a “fundamental criterionfor determining the groups to which the provisions of this Convention apply” (Art. 1).There is no international definition of which groups are“indigenous,” and this has to be decided at thenational level. Convention 169 covers both indigenousand tribal peoples, meaning those who live in a waythat sets them apart from the national community,whether or not they are descended from “firstinhabitants.” For instance, in several Central Americancountries, garifunas (or maroons, or other terms) aredescendants of escaped African slaves, and thus arenot indigenous in the literal sense, but they are tribaland are covered by the Convention.There is another ILO Convention on the same subject,the Indigenous and Tribal Populations Convention (No.107) of 1957. While less demanding than the later C169, it does contain relevant obligations for countriesthat have not yet ratified C169. It is applicable to anumber of countries in Asia and Africa.The purpose of ILO Conventions is generally tomandate State action in the context of the nationallegal system in relation to the rights and obligationscontained in the instrument. As with other ILO
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Conventions, Convention 169 is aimed at governmentsand is binding only on the States that have ratified it.For example, Article 2 states that “Governments shallhave the responsibility for developing, with theparticipation of the peoples concerned, coordinated andsystematic action to protect the rights of these peoplesand to guarantee respect for their integrity.”The ILO's structure of implementation for Conventionsalso emphasizes the role of the State. ILO constituentparties may raise complaints about alleged breaches of aConvention, but these relate to the adequacy or otherwiseof State action in implementation. Comments by non-State parties (i.e., trade unions and employers’organizations) on its application are dealt with by the ILOCommittee of Experts (its main supervisory body). ThisCommittee comments on implementation and makesrequests and recommendations to governments. If thesecomments are sufficiently serious, they may be referred tothe annual ILO Conference for public discussion, or tospecial complaints mechanisms.The terms of such comments by the ILO Committee of Experts also make clear that it sees the scope of legalcompliance with Convention 169 as limited to the State.For example, it has noted that:“…the obligation to ensure that consultations are held ina manner consistent with the requirements established inthe Convention is an obligation to be discharged bygovernments, not by private individuals or companies.”(See CEACR Observation on Bolivia 2005 / 76thSession.)Like most international conventions, its application toStates is clear in the language used in Convention 169.Indeed, there are no Articles establishing obligations for bodies other than governments.While private companies do not have any directobligations under the Convention, it has clear implications for their activities and operations. There maywell be legal obligations arising from national legislationimplementing the Convention. And in some countries,ratified Conventions are incorporated directly intonational law and may be used by the courts to determineresponsibilities, which they could theoretically deicde toapply to actors other than governments.
 Do private companies have any obligationsunder Convention 169?
Companies face a reputational imperative arising fromthe perceived duties of companies to be seen to act in away that is compliant or consistent with international law.Direct legal obligations on private companies, however,can only come from national law.Where national legislation sets out clear obligations onprivate actors in relation to indigenous peoples, then it isimportant that companies comply with these obligations.There may be such legislation in countries that have notratified the Convention, although it is only those thathave ratified that are required to put such legislation inplace.The failure of a government either to fulfill its obligationto implement the Convention, or to comply with itsresponsibilities under national legislation, can haveconsequences for a private sector project. For example,if a State fails to comply with obligations on prior consultation on a project, a private company may findthat the licenses that have been granted are subject tolegal challenge (this is considered in more detail below).There may also be circumstances where private sector companies' actions could influence or compromise theState's implementation of its obligations under international agreements, such as Convention 169. For example, a private sector extractive project canpotentially generate very large revenues, some of whichwill be paid over to the State in the form of concession,license or royalty fees, and taxes. A state regulatoryagency, in anticipation of such revenue, may expeditethe project approval process by not following its ownconsultation requirements under Convention 169, or write into laws state commitments which may conflictwith its ability to comply with Convention 169. If theproject is being implemented in a country with weakgovernance, or in a state of conflict, the risks of theprivate sector's influence over the government may begreater. While this is an area of human rights debatethat is still evolving, a consensus is emerging that privatesector companies should not act in a manner that wouldinterfere with the State's discharge of its obligationsunder its international agreements.
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