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5 Sep 2022

Forest Peoples Programme

What will the European Commission’s proposed Corporate Sustainability Due Diligence Directive mean for the human rights of indigenous peoples and of local communities?

FPP analyses the proposal and its potential impacts for forest peoples, including the many gaps to fill to ensure an effective protection of the rights of indigenous peoples and local communities...

These are some of the major limitations identified by FPP and its partners in the proposal:

Insufficient human rights coverage

...The list of 20 rights does include indigenous peoples’ rights to lands, territories and resources under UNDRIP. It includes much more limited land rights for non-indigenous peoples. It also excludes other key, connected rights of indigenous and forest peoples, including the right to self-determination, the right to culture, the right to health, or the principle of free, prior and informed consent.

The directive should instead expressly and equally require companies to conduct due diligence in respect of the entire spectrum of internationally-recognised human rights.

Impacts on forest peoples mostly neglected in the value chain coverage

The directive should unequivocally require due diligence on the full value chain of corporate activities.

A process-based directive, with no obligations of outcomes

The proposal sets out requirements for companies to identify, prevent, mitigate and cease adverse human rights impacts – but the obligations are of process not of outcome...

The directive should go beyond a mere process to hold companies accountable for human rights outcomes,  by requiring companies to demonstrate that human rights impacts are in fact prevented and progressively removed from their operations and value chains.

More support to forest peoples’ access to justice is required

Under the proposal, each EU country will set up a supervisory authority to enforce the directive...

Accessibility could be significantly improved by providing a centralised European point of submission for substantiated concerns (e.g. through the European Network of Supervisory Authorities), which could provide a simplified and more accessible procedure.

A civil liability regime is also included in the directive... Unfortunately, it suffers from the same practical barriers of the substantiated concerns mechanism. It is further weakened by the limitations in value chain coverage, and the lack of obligations of outcome, mentioned previously. Forest peoples will face great difficulties in accessing EU courts, and companies will be exempted from liability for many of the impacts that affect indigenous peoples and local communities.

Absence of consideration for human rights defenders and conflict affected areas

Business activities in conflict-affected areas, in post-conflict situations or other contexts where violence is common create increased risks of human rights violations...

The directive should include additional due diligence requirements in contexts of conflict, post-conflict or high levels of violence. This must include specific protections for human rights defenders (which may include entire communities in the case of indigenous and forest peoples defending collective rights) who raise concerns about human rights violations.