Rights as Usual

This blog post by Luiza Pigozzo Rocha is part of a Blog Series on Colonization in, of and through Business and Human Rights published on Rights as Usual. Luiza Pigozzo Rocha is a research associate of the NOVA Knowledge Centre for Business, Human Rights and the Environment. She is currently on the Themis exchange programme at the University of St. Gallen, and enrolled on the 2nd year of the Nova School of Law Master’s in International and European Law.

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In this post I analyze the current efforts to include the protection of indigenous peoples’ rights in the EU Directive on Corporate Sustainability Due Diligence (hereafter the Directive) currently under negotiation. I focus on a practical example to illustrate the challenges of effectively protecting indigenous’ rights.

I first present the violent practices suffered by indigenous peoples during Brazil’s colonial period, and how similar patterns of indigenous’ rights violations are perpetuated by informal European powers nowadays. In light of this example, I then assess the approach taken by the European Commission, the Council of the European Union, and the European Parliament on the Draft Directive. Overall, I aim to stress the need for a more encompassing definition of business’ obligations in respect to indigenous peoples in the final Draft.

Indigenous peoples in Brazil

Brazilian lands were inhabited by indigenous peoples for several centuries before a permanent Portuguese settlement was stablished in 1500. Brazil’s colonisation was fundamentally driven by the dispossession of the local inhabitants’ homeland, and the exploitation of their bodies and labour through enslavement, religious persecution and sexual exploitation. Genocidal policies were implemented to repress insubordination and prevent potential reactions against the settlers. In short, Brazil’s history is marked with brutality, violence, and dominance over indigenous peoples.

After more than 300 years of struggle, the independency act of 1822 recognised Brazil’s sovereignty and formally ended any kind of foreign domination over its politics, peoples, and lands. Nonetheless, Brazil’s independency act was only the beginning of an ongoing process, as informal imperial powers continued to interfere and project dominance on the same lands and over the same people to fulfil neo-colonial political, cultural, and economic objectives.

Nowadays, capital accumulation continues to be fuelled by the violent dispossession of postcolonial subjects. Large-scale resources extraction, unsustainable development strategies, and irresponsible modes of production are often concretized through unjust processes of land appropriation, transgression of local and indigenous communities’ rights, and ethnic-racial hierarchization of populations.

One recent example of this reality is the Yanomami crisis that came to light in the beginning of 2023. The deplorable state of health and malnutrition of the Yanomami indigenous community was brought to light in areas of Brazil where economic projects are carried out, specifically in illegal mining areas. This fueled existing discussions of a never-ending colonial cycle of domination, subjugation and other forms of violence against indigenous peoples in Brazil. This systemic violence is devised and carried out under the auspices of corporate powers today.

 Colonial legacies

European corporations are very much involved in this cycle through their direct or indirect business activities. For example, in the meat sector, companies such as Carrefour, Aldi Süd, Rewe, and Tesco had their supply chain activities linked to indigenous peoples’ rights violations. Many of their imports come from indigenous lands where violation of labour laws, violent conflicts with landowners, and death threats and murders are a common reality.

Another example is the soybean trade and financing area. The Netherlands, Spain, Germany and France were identified as the home countries of corporations and financial institutions supporting soy exports from the Amazon and Cerrado regions in which unprecedented rates of deforestation and over-exploitation of indigenous lands were attributed to the soy industry. This pattern of violence against Indigenous peoples in Brazil exists in other sectors such as the sugar, timber, leather, cocoa, dairy and oil extractive sectors.

For many years the lack of corporate accountability for human rights abuses was not addressed in a way that balanced the asymmetries in power-relations between businesses and the people affected by their activities. However, in the last decade, critical discussions around this topic have attracted greater attention. Meaningful progress was made after the launch of the United Nations Guiding Principles on Business and Human Rights (2011), creating an optimistic ground for change in the coming years.

Most recently, the core ideas brought in the Guiding Principles were the basis for the development of national laws such the UK Modern Slavery Act (2015), the French Corporate Duty of Vigilance Law (2017), the Dutch Child Labour Due Diligence Law (2019), the Australian Modern Slavery Act (2019), the Norwegian Transparency Act (2022), the US Uyghur Forced Labor Prevention Act, (2022) and the German Supply Chain Due Diligence Act (2023). In a regional context, the protection of human rights from corporate activity impacts led the European Commission to propose a Directive on Corporate Sustainability Due Diligence, which is currently in the adoption process.

All those initiatives indicate significant advancement formalizing human rights protection in the context of global business operations. Notwithstanding these positive developments, the recent laws are insufficient when it comes to the protection of Indigenous peoples’ rights. As they stand, these legal frameworks cannot end the patterns of rights violations and stop the reproduction of colonial legacies, as discussed below.

 The Corporate Sustainability Due Diligence Draft Directive

In 2022, the European Commission proposed the Draft Directive on Corporate Sustainability Due Diligence aiming to make human rights due diligence mandatory for large companies in EU Member states. The duty to perform human rights due diligence includes ‘identifying, bringing to an end, preventing, mitigating and accounting for negative human rights, environmental and climate impacts in the company’s own operations, their subsidiaries and their value chains .’

During the process of adoption of the Directive, the European Commission, the Council of the European Union, and the European Parliament differently approached the notion of Indigenous peoples’ rights protection when performing human rights due diligence. As such, these three institutions are still grappling for a common ground.

The European Commission’s proposal of February 2022 made no reference at all to Indigenous peoples’ rights and human rights defenders. In November of the same year, the Council of the European Union presented amendments for the Directive and article 26(a) was introduced calling upon companies to consult affected stakeholders throughout the process of carrying out due diligence, indicating that affected individuals could possibly mean Indigenous peoples. This article did not specify any duties in relation to the consultation of Indigenous groups or environmental defenders, nor clarified how to perform due diligence when those communities are affected by business activities. At best, it fell back on mere recommendations to companies.

After months of dialogue, the European Parliament presented the latest amendments adopted on June 1, 2023, with greater progress on indigenous peoples’ rights. This updated document introduced article 8(d) which clarifies what carrying out meaningful engagement with affected stakeholders mean. But the text abandoned suggestions for a more incessive approach that would have strengthened due diligence practices. In addition, the same article mentioned the necessity to fully respect the United Nations Declaration on the Rights of Indigenous Peoples when engaging with stakeholders; and in the amendment of article 3, point n(a), indigenous peoples were included in the list of vulnerable stakeholders.

The Parliament also proposed an amendment to points 19 and 20 of the Directive’s subheading prohibiting environmental harms that affect the rights of Indigenous peoples to self-determination and their right to give, modify, withhold or withdraw their free, prior and informed consent to interventions, decisions, and activities that may affect them and their lands, territories and resources which they have traditionally owned.

Until now, only the European Parliament presented amendments that can bring meaning to the Directive in the sense of changing the colonial cycle of indigenous peoples’ rights abuses. By elucidating what a meaningful stakeholder engagement entails in practice, these amendments increased Indigenous people’s likelihood to benefit from human rights’ due diligence processes. Including Indigenous peoples’ voices in the due diligence process, however, is not a simple activity. Linguistic, geographic, educational, religious and other barriers can make the process very complex and time consuming. But if these crucial points are overlooked and the three institutions do not reach an agreement, Indigenous peoples’ rights violations will continue.

Applying a postcolonial perspective to business and human rights laws is vital to the drafting of effective legislation. Revisiting Brazil’s past colonial practices in light of contemporary corporate activity can contribute to our comprehension of the myriad challenges faced by Indigenous communities and how to develop impactful instruments of change. Overall, the amendments adopted by the European Parliament represent an initial advance in relation to the protection of Indigenous peoples’ rights. Yet, the possibility of changing the colonial cycle of indigenous peoples’ rights violations and rebalancing unequal power relations will depend on the fate of the Directive, which rests on the outcome of a wishful coordination between the three institutions.