What you need to know before doing anything in biodiversity credit markets: The rights of Indigenous Peoples

It is increasingly suggested that the emerging biodiversity credits market must learn from the shortcomings of the carbon market. The carbon credit market has recently taken big reputational damage, partly because of the many scandals involving projects that did not respect Indigenous Peoples’ rights, with many projects even being canceled or suspended.

Given that the biodiversity credit market is relatively new, there is a need to ensure that Indigenous Peoples’ rights are respected in the specific context of biodiversity credits, and to design initiatives in a manner that ensures rights are protected and respected. This is not only a moral, legal, and rights-based imperative, but also, a fundamental prerequisite for any such activity to be feasible.

In this context, this document is a call for all actors, including State actors, private-sector, non-governmental organizations, and multi-stakeholder initiatives in the biodiversity credit markets, to take adequate steps to ensure that these rights are respected.

| The rights of Indigenous Peoples

The rights of Indigenous Peoples are most clearly articulated through the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and also by many binding treaties and conventions, including but not limited to:

• International Covenant on Civil and Political Rights (ICCPR)
• International Covenant on Economic, Social and Cultural Rights (ICESCR)
• International Convention on the Elimination of all Forms of Racial Discrimination (ICERD)
• Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
• ILO Convention 169 on Indigenous and Tribal Peoples

Those instruments, in addition to many national constitutions and regulations, jurisprudence and authoritative interpretations developed by international and regional human rights mechanisms, comprise a growing network of protection for Indigenous Peoples’ rights.

In the context of biodiversity credit markets, many of those rights require further analysis. In any case, it should be noted that Indigenous Peoples have rights not just as individuals but as collective subjects of international law, as affirmed by the UNDRIP, as well as many human rights mechanisms.₁ Indigenous Peoples are represented through their own governance structures and should not be equated with vulnerable or local communities.₂

| The right to self-determination 

Self-determination is a foundational right of Indigenous Peoples, without which, many other rights cannot be fully enjoyed. The right to self-determination has an internal aspect, meaning that Indigenous Peoples have the right to freely determine their political status and freely pursue their economic, social and cultural development, without external interference. It also has an external aspect, meaning the right to determine their political status at the international level, based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and exploitation.₃ Accordingly, Indigenous Peoples also have the right to self-government, autonomy, and to maintain and develop their own legal, social, and cultural institutions and juridical systems.4 The right to Indigenous Peoples to self-determination is affirmed by the UNDRIP, ICCPR, and ICESCR.₅

| The lands, territories, and resources, the right to enjoy one’s culture, and right to property

The right of Indigenous Peoples to their culture, and to their lands and territories is reflected throughout the UNDRIP and international treaties and conventions. Accordingly, Indigenous Peoples have a right to own, use, develop and control their lands, territories and resources.₆ “The  right of indigenous peoples to lands, territories and natural resources originates in their own customary law, values, habits and customs and, therefore, is prior to and independent of State recognition in the form of an official property title.”₇

The right of everyone to enjoy their culture is guaranteed by ICCPR Article 27. In the context of Indigenous Peoples, the responsible treaty body (CCPR) has established that Indigenous Peoples have an inalienable right to enjoy the territories and natural resources that they have traditionally used for their subsistence and cultural identity.₈ ( Likewise, the Inter-American Court of Human Rights has clarified that the protection of Indigenous Peoples’ lands and resources is directed towards preventing Indigenous Peoples’ extinction as a people, and to guarantee that they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected.₉

Indigenous Peoples also have a right to property in relation to their lands, territories and resources, based on the principle of non-discrimination. The Committee on the Elimination of Racial Discrimination has clarified that ignoring Indigenous Peoples’ customary laws, comprises a form of discrimination as it would have the effect of nullifying or impairing, on an equal footing, their right to property tied to their cultural identity.₁₀ As such, the term right to property is also considered to encompass property in the context of Indigenous Peoples, who may have totally different systems of property rights from that laid down in State law.₁₁ Moreover, “indigenous peoples’ rights to traditional territories exist independently of domestic legislation, and the fact that the national legislation does not award them formal title is therefore irrelevant, according to international human rights law”.₁₂

Indigenous Peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the Indigenous Peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.₁₃

| The right to participate in cultural life, right to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production, and right to intellectual property

The UNDRIP affirms that Indigenous Peoples “have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.”₁₄ This right is also guaranteed under Article 15 of the International Covenant on Economic, Social and Cultural Rights.₁₅

Indigenous Peoples’ right to collectively, or individually, benefit from the protection of moral and material interests resulting from their scientific, literary or artistic production is also guaranteed under Article 15 of the International Covenant on Economic, Social and Cultural Rights. For example, the overseeing treaty body (CESCR) has called on States to “adopt measures to ensure the effective protection of the interests of indigenous peoples relating to their productions, which are often expressions of their cultural heritage and traditional knowledge,” and to “prevent the unauthorized use of scientific, literary and artistic productions of indigenous peoples by third parties.”₁₆

The Declaration (Article 11) also affirms that Indigenous Peoples have a right to restitution of their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, customs and traditions.

The principle of non-discrimination in relation to Indigenous Peoples’ property systems also gives rise to important questions of Indigenous Peoples intellectual property rights over such cultural heritage, knowledge and traditional cultural expressions. Presumably, such property rights based on their customary laws, customs and traditions may encompass totally different systems than that laid down in State law and must be recognized and respected as such, and the lack of State protection over such intellectual property rights cannot justify the violation of such intellectual property rights.

As such, it is necessary that information imparted by Indigenous Peoples or individuals in the context of biodiversity credits or related activities should not be used for any other purpose than those explicitly authorized, and should not be redistributed to third parties without explicit consent.

| The right to privacy, home, and family life

It is possible that data collection or monitoring used for biodiversity credit markets could negatively impact Indigenous Peoples’ privacy, home, and family life. The right to freedom from unlawful or arbitrary interference with one’s privacy, home, and family is guaranteed under Article 17 of the International Covenant on Civil and Political Rights. The treaty body overseeing the ICCPR has affirmed that the right to freedom from arbitrary or unlawful interference with privacy, family or home should be understood in light of Indigenous special relationship to their territories in which they reside and enjoy their privacy.₁₇

Presumably, to guarantee that those rights are respected, special measures should be taken to ensure that such data collection or monitoring does not infringe on those rights, and is subject to free, prior and informed consent and mutually agreed compensation and benefit-sharing agreements.

| The right to free, prior and informed consent

The right to free, prior, and informed consent is reflected throughout the UNDRIP. The Declaration explicitly calls for free, prior, and informed consent in relation to relocation of Indigenous Peoples (Article 10); in relation to Indigenous Peoples’ cultural, intellectual, religious and spiritual property (Article 11); in relation to legislative or administrative measures that may affect them (Article 19); in relation to their lands, territories and resources (Article 28; Article 32); and in relation to storage of hazardous materials on Indigenous lands or territories (Article 29), and in relation to military activities on Indigenous lands or territories (Article 30).

It has also been affirmed by the jurisprudence of various international and regional human rights mechanisms, included but not limited to:

• CERD’s general recommendation 23 calls on States to ensure that “no decisions directly relating to their rights and interests are taken without their informed consent”.
• CESCR’s general recommendation no. 21 calls on States and businesses to respect the principles of free, prior and informed consent “in relation to all matters that could affect their rights, including their lands, territories and resources that they have traditionally owned, occupied or otherwise used or acquired.”
• CEDAW’s general recommendation no. 39 has called on States to require free, prior and informed consent of Indigenous women and girls in all matters affecting their rights, including before authorizing any projects affecting their rights.
• The Human Rights Committee (CCPR) has established that participation in decision-making be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community.₁₈

| Operalization of free, prior and informed consent

Many industry guidelines exist for companies on free, prior and informed consent, but they often limit free, prior and informed consent to narrow understanding, i.e., ‘one-off’ events related to the approval of projects. Rather, free, prior and informed consent should be understood as stemming from non-discrimination and self-determination, aimed to safeguard various rights of Indigenous Peoples, and to enable their exercise of self-determination and control over their lands, territories and resources. For free, prior and informed consent to occur, it also requires that good-faith consultations are held in cooperation with Indigenous Peoples, and that Indigenous Peoples can effectively participate in decisions that may affect them at the conceptualization stage of such a proposal, and that their right to their lands, territories and resources are guaranteed.₁₉

• Effective participation in decision-making: Given that Indigenous Peoples protect much of the world’s biodiversity, it is clear that the manner in which various standards, schemes, and regulations are developed will affect Indigenous Peoples’ rights and interests. As such, for effective participation to occur, it should not just happen at the implementation of a project, but also at the conceptualization stage of the various biodiversity credit initiatives at the international level, and on an ongoing basis. This also requires that such initiatives provide Indigenous Peoples with access to sufficient legal, technical, and financial resources, as well as information to be able to participate.
• Consultation: Consultations should be free, prior and informed, carried out in good faith, in cooperation with Indigenous Peoples.

-They should be free, meaning that they are free from intimidation and coercion, and Indigenous Peoples should be able to participate freely, and be consulted about the process of consultation per se. Indigenous Peoples should be able to exert sufficient control over defining methods, timelines, locations and evaluations; as such, restricting the scope of modes of consultation to pre-defined methodologies would call into question the extent to which such consultations are free. Indigenous Peoples must also effectively be able to say no to a project, without facing any repercussions or limitations of any rights or services.

-They should be prior, meaning that they should take place as early as possible at the conceptualization stage, and not just after important decisions or investments have already been made. They should also respect Indigenous Peoples’ timelines and decision-making processes, and allow for sufficient time for Indigenous Peoples to absorb and analyze information.

– They should be fully informed, meaning that information should be objective, accurate, clear, and be presented in a manner that is accessible to Indigenous Peoples, on an ongoing basis. The information should include the nature, size, pace, reversibility and scope of any activity, including possible risks, benefits, and best practices. Adequate resources and capacity should be provided.₂₀

• Right to give or withhold consent: Consent is required in relation to matters of fundamental importance for Indigenous Peoples’ rights, dignity and well-being. As explained by the Expert Mechanism on the Rights of Indigenous Peoples, consent can only be received when it fulfills the three criteria of having been free, prior and informed. Consent must be “ongoing” with express opportunities and requirements for review and renewal set by the parties. Indigenous peoples must have the opportunity, moreover, to give or withhold consent to each relevant aspect of a proposal. If the right to be consulted, right to participate, and right to lands, territories and resources is missing, consent cannot be achieved.₂₁

| Compensation and benefit-sharing

The right of Indigenous Peoples to receive compensation for limitations of their rights, and to share in the benefits arising from the utilization of their lands and resources should not be seen as a form of charity, but rather, a right that Indigenous Peoples are entitled to under international law.₂₂

The Inter-American Court of Human Rights has established that Indigenous Peoples have a right to compensation for the limitation and deprivation of property rights, and their regular use and enjoyment of such property₂₃, based on their traditional patterns of use and occupation, not limited to means of subsistence but also cultural and spiritual uses.₂₄ Such compensation should be aimed at repairing the negative impacts on any environmental, social, cultural or spiritual aspects of their lives.₂₅

Separately, the Inter-American Court of Human Rights has established that Indigenous Peoples have a right to receive a reasonable benefit from the activities taking place within their territory.₂₆ The African Commission on Human and Peoples’ Rights has established that the failure to duly compensate results in a violation of property rights.₂₇ The Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) has called on States to punish transgressors in case of unauthorized use or appropriation or cultural knowledge without free, prior and informed consent and adequate benefit-sharing.₂₈

In this context, it should be noted that according to international human rights law, the term right to property is also considered to encompass property in the context of Indigenous Peoples, who may have totally different systems of property rights from that laid down in State law.₂₉ As such, compensation and benefit-sharing is also required for the utilization of Indigenous Peoples cultural, intellectual, religious and spiritual property.

| Call to action for a just and fair biodiversity credit markets

It is clear that there is still much to be done for biodiversity credit markets to be just and fair. To be just and fair, it must, at minimum, respect those that do not wish to participate in such markets, and where Indigenous Peoples freely choose to participate in them, ensure that their rights are respected. Doing so will create a foundation for good-faith, mutually respectful relationships with Indigenous Peoples, improved biodiversity outcomes, reduced risks, and higher investor demand. To do so, actors in the biodiversity credits markets should act with due diligence to recognize and respect Indigenous Peoples’ rights and take proactive steps to prevent and mitigate any adverse impacts that they may cause or contribute to, and ensure that adequate safeguards, including consultation, participation, FPIC, compensation, and benefit-sharing are applied and reflected in regulation, policies, standards, schemes, action plans, projects, agreements, and contracts. For businesses, this responsibility exists independently of State recognition or protection of Indigenous Peoples’ rights.₃₀

Indigenous Peoples or communities also ought to exercise these rights, by duly investigating any proposals with regards to respect for their rights, and require that governments, businesses, investors, and multi-stakeholder initiatives respect them.