For decades host communities have disproportionately shouldered the negative impact of harmful business activities on the land they own and use, including having their lands taken from them, environmental and land degradation, and a disruption to cultural or Indigenous practices, among other things. Communities are now asserting their right to Free Prior and Informed Consent (FPIC), including the right to say no, and demanding corporations be held accountable for rights violations.

The Amadiba Crisis Committee in Pondoland, in South Africa’s Eastern Cape, provides a compelling example of how a community said no to extractivism and mining, and also came up with alternatives to development, including eco-tourism and renewable energy projects which would benefit the community. The Amadiba Crisis Committee is a powerful example of a community’s right to self-determined development.

The land Indigenous communities own and use, specifically in the Global South, are rich with minerals and resources that attract “investment” by transnational corporations (TNCs) within the extractive sector. Indigenous communities often find themselves displaced from their land and/or experience disruption to their land, environmental, and community life by TNCs due to investment or development projects - including increasingly wind and solar projects. In an article titled “Winds of change blow through indigenous lands in La Guajira”, Open Democracy reported on the harsh impacts of a large-scale wind farming project located in the Indigenous lands in La Guajira, Columbia. Nancy Gómez, Indigenous environmental leader from the Cabo de la Vela community, said that “[o]ur territory is priceless… They can give us all the thousands and millions, but we will still not be well paid. Our wealth is in the land. Our wealth is in the sea. Our wealth is in the air… How are we going to allow them to come and fool us like that, and talk about development?”

Communities globally have reported that these investment or development projects largely do not benefit the host-community but rather cause, contribute to, or are directly linked to human rights violations as a result of transnational and large-scale business activities. While important developments on the issue of business and human rights have occurred in recent years, including the publication of the United Nations Guiding Principles on Business and Human Rights in 2011, communities say this is not enough and emphasise the need to clarify the obligations of corporations to respect human rights and ensure access to effective remedies for victims of corporate-related human rights abuses through binding law.

Community activists have continued to highlight the need to address corporate impunity and are calling, together with State actors, civil society, social movements, and trade unionists, for the development of a legally binding instrument to regulate and hold TNCs accountable for rights violations.

Since the United Nations Human Rights Council took steps to develop an international legally binding instrument to regulate the activities of TNCs and other businesses in June 2014, Indigenous and host communities have continued to remind us of “nothing about us without us”. As Indigenous communities are the ones who bear the burden of the social, political, economic, and environmental effects of business, they ought to be front and centre of any process which seeks to regulate TNC activities and influence the impact on their rights, land, environment, well-being, and livelihoods.

Ensuring host communities are a part of the treaty negotiation process is aligned with the tone of the draft treaty as a whole as well as specific articles, such as the inclusion of FPIC. Article 6 of the Third Revised Draft of the Treaty, which is the subject of the 8th session of the Intergovernmental Working Group scheduled to take place from 24 – 28 October 2022 in Geneva, Switzerland, includes the responsibility of business to ensure appropriate measures are taken to prevent, avoid, or mitigate potential human rights violations or abuses arising from business activities. A vital component of this is a direct obligation on TNCs to consult and obtain the informed consent of communities in which such corporations seek to operate.

Consequently, a treaty process without the full and direct participation of members of the communities affected by the treaty is not representative of what the treaty calls for. As we approach the 8th session of the Intergovernmental Working Group, we remind all State representatives, civil society, social movements, trade unionists, and business of the purpose of the treaty; ensuring the protection of rights, access to effective remedies for corporate-related human rights abuses, and importantly, the empowerment of indigenous communities to hold TNCs accountable for rights violations. By ensuring communities are at the centre of the treaty negotiation process, we support communities’ call for “nothing about us without us” and acknowledge that communities know what is best for them and the land they own and use.

By Palesa Maloisane & Jessica Lawrence, Lawyers for Human Rights, South Africa