6. Business and Human Rights – An Indigenous Peoples’ Perspective

Many of the cases concerning corporate human rights responsibilities in Norway concern indigenous peoples’ rights. Companies do not have human rights obligations, but companies are usually responsible for the development and utilisation of natural resources. There are several guidelines and principles (particularly within the UN and the OECD frameworks) that seek to “build bridges” over the gap that exists between the legal obligations of states and the responsibilities of companies.

6.1 Introduction

Indigenous peoples’ rights are largely about rights to use of land and associated natural resources, and it is precisely this issue that complaints under ICCPR Article 27 and ILO 169 often concern. The human rights conventions are legally binding on states parties and require them to have legislation that protects the rights of indigenous peoples. But it is largely private companies that are actually behind the development and utilisation of natural resources. Companies are not subject to obligations under international law, and are not bound directly by these conventions. At the same time, over the past couple of decades, increasing attention has been paid to companies’ responsibilities for human rights in connection with their businesses.

Both the UN and the OECD have tried to “build bridges” over the gap that exists between the legal obligations of states and the responsibilities of companies. There are a number of different guidelines and principles within many different international fora.

This chapter discusses first and foremost the UN Guiding Principles on Business and Human Rights (UNGP),³²⁸ which constitute the leading international standards for corporate human rights responsibility, as well as the OECD Guidelines for International Companies, where Chapter IV reflects the UNGPs.³²⁹

In addition, there are more industry-specific standards and principles, for example in the oil and gas field, mining, etc.³³⁰

The National Action Plan from 2015 for follow-up of the UN Guiding Principles, states that the Government expects Norwegian companies to know and comply with these guidelines and principles, including in making due diligence considerations in the field of human rights.³³¹ Particularly demanding requirements are placed on companies with state ownership. These companies are expected to be at the forefront in their work with corporate social responsibility, and to strive to safeguard human rights and reduce their climate and environmental footprint. In the Government’s ownership report from 2019, it is expected that the companies will be “identifying and managing important risk areas for those affected by the company’s operations, ensuring broad support for this work, incorporating it into the company’s goals, strategy and guidelines, and following internationally recognised guidelines, principles and conventions”.³³²

6.2 UN Guiding Principles on Business and Human Rights (UNGP)

After extensive work and dialogue between states and businesses, the UNGPs were adopted by consensus by the UN Human Rights Council in 2011.³³³ The UNGPs are divided into three so-called pillars, and is based on the fact that it is the states’ obligation to protect (Pillar 1), and the companies’ responsibility to respect human rights (Pillar 2), and that it is the responsibility of both states and companies to ensure that there are effective complaint mechanisms (remedy – Pillar 3).³³⁴

Pillar 1 reflects the states’ obligation under international law to protect individuals from human rights violations by third parties, including companies. It is stated that states should set a clear expectation that companies respect human rights in all their activities. Furthermore, it discusses what the state should do to implement this. In particular, the state’s role as a legislator and supervisor is central here. To protect human rights, the state should have laws that ensure that companies respect human rights, and they should provide guidance to companies on how to respect human rights. The states’ responsibilities are specified in Principle 4, which refers to the particular responsibility of states not only as subjects with human rights obligations, but as owners of enterprises. Here, states should assume responsibility for ensuring human rights follow-up of the companies they own or control.

Pillar 2 on the business community’s own responsibility to respect rights provides a number of important recommendations with guidance for companies on what they should do to not cause or get involved in human rights violations. Worth mentioning here are:

Principle 11, which states that business enterprises should respect human rights, and “[…] that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved”. This means that companies are expected to take measures to prevent human rights violations, and that they should remedy and possibly repair the adverse impacts of human rights violations.
Principle 12, which lists which human rights must be respected: The companies have a minimum responsibility to respect the rights in the UN Universal Declaration of Human Rights as well as the ICCPR and ICESCR, which together constitute the “International Bill of Human Rights”. Moreover, Principle 12 encompasses the ILO Declaration on Fundamental Principles and Rights at Work, which includes the ILO’s eight core conventions on freedom of association and the right to collective bargaining, the prohibition of child labour, the prohibition of discrimination and prohibition of forced

The international instruments covered by Principle 12 contain more than 30 specific human rights (including labour rights), of which ICCPR Article 27 is included.³³⁵ A separate reporting tool for the UNGPs provides an overview of these human rights, together with a brief explanation of what they entail, and examples of how companies’ activities can affect the exercise of each individual right.³³⁶

In addition to the rights covered by Principle 12, the UNGPs framework specifies that human rights other than these may also be relevant to companies, such as the special rights of indigenous peoples, women, the disabled, and children.³³⁷

What it means to respect these human rights is explained in more detail in Principle 13. Companies should avoid causing or contributing to a negative impact on human rights through their activities, and try to prevent or reduce negative impacts on human rights through their activities or business contacts.

What the companies should do and how they should do it is stated in more detail in Principles 15–20. Companies should ensure due diligence that include internal guidelines and a statement that they respect human rights. Due diligence processes “[…] to identify, prevent, mitigate and explain how companies endeavour to respect human rights” as well as procedures to deal with any negative impacts are also central. In accordance with Principle 17, companies should:

[…] identify, prevent, mitigate and account for how they address their adverse human rights impacts, business enterprises should carry out human rights due diligence. The process should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.³³⁸

Pillar 3 concerns the states’ overall duty to ensure effective complaint mechanisms and follow-up of human rights violations. In addition, companies should facilitate complaints in connection with their activities.

The UNGPs are important to the rights of indigenous peoples. Firstly, the list set out in Principle 12 includes a number of rights on, for example, self-determination and political participation, as well as rights that protect indigenous peoples from for example discrimination or forced labour, in addition to ICCPR Article 27. Also, the right to life and the right to privacy are rights that protect indigenous peoples from environmental damage or climate damage. Secondly, Principle 12 includes “a minimum” and more specific rights in other relevant instruments must also be respected by the companies. In cases concerning indigenous peoples’ right to, for example, natural resources or land and their right to consultations, the rules in ILO 169 should also be respected by the companies, especially where the states do not take this responsibility.³³⁹

As mentioned, states are required to have greater responsibility for businesses they own or control. The Government expects state-owned companies to be at the forefront in their work with responsible activities, respect human rights, follow the UNGPs and the OECD guidelines and conduct due diligence.³⁴⁰ The state has large holdings in Fosen Vind, and it can be questioned whether the due diligence on indigenous peoples’ rights were thorough enough in the Fosen case.³⁴¹

6.3 OECD Guidelines for Multinational Enterprises and the OECD National Contact Point

The OECD Guidelines for Multinational Enterprises deal with areas such as corruption, competition, taxation, the environment and consumer protection. In 2011, the OECD Guidelines were expanded with a separate human rights chapter, which refers to the UNGP. The content of the business community’s human rights responsibilities under the UNGPs and the OECD Guidelines thus coincides.

A key point of departure is that companies should respect human rights and avoid violating human rights or contributing to negative impacts in the field of human rights. Prevention and limitation of negative consequences through due diligence, stakeholder dialogue and cooperation are central. Sustainable development, respect for human rights and remedial measures to avoid causing or contributing to negative impacts as a result of one’s own activities are key principles.³⁴²

The guidelines point out that respect for human rights today is the global standard for expected behaviour for companies, with a clear expectation from the states that the companies also contribute to respecting human rights. In this connection, the rights of particularly vulnerable groups such as indigenous peoples, ethnic, linguistic and religious minorities, women, and children are cited as examples of groups that require special attention from the companies.³⁴³

In their internal guidelines, companies should incorporate an obligation to respect human rights, and take necessary measures to stop or prevent activities that cause or may cause negative consequences in the field of human rights. It is assumed that a company’s “activities” include both acts and omissions.³⁴⁴

In accordance with both the UNGP and the OECD guidelines, companies should carry out due diligence in the field of human rights. This is of great importance in relation to developments in Sami areas. According to OECD’s comments on the guidelines, this means “[…] assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed”.³⁴⁵ An introduction and guidance can be found in the OECD Due Diligence Guidance for Responsible Business Conduct, prepared by the Norwegian OECD Contact Point in 2019.³⁴⁶

The extractive industry often conflicts with indigenous peoples’ rights, around the world. In continuation of its guidelines, and with regard to the special characteristics of the extractive industry (large investments, site-bound production, longevity and extensive social, economic and environmental impacts) the OECD has prepared a guide for meaningful stakeholder dialogue in the extractive industry. The aim of the guide is to provide practical guidance on handling challenges related to stakeholder dialogue.³⁴⁷

The implementation of the OECD Guidelines for Multinational Enterprises is supported by national OECD Contact Points in the countries that adhere to the guidelines. Norway’s OECD Contact Point is a professional, impartial advisory body that shall promote and supervise the guidelines, cooperate internationally and deal with complaints related to the guidelines.³⁴⁸

Under the OECD system, there is a separate complaints system. The national Contact Points deal with complaints against companies’ alleged non-compliance with the guidelines. These are not legally binding complaint systems, and the aim of the complaint proceedings is to reach an agreed solution in the cases. Where the parties do not reach agreement through negotiations assisted by the OECD Contact Point, the Contact Point provides recommendations on how the enterprises can act in line with expectations in the OECD guidelines. In its handling of complaints, the OECD Contact Point can be a forum for helping to resolve issues arising in connection with the implementation of the guidelines, including issues concerning human rights matters. If the parties agree, the OECD Contact Point may also facilitate and contribute to consensus-oriented solutions such as settlement or mediation to help the parties resolve the matter.³⁴⁹

The Norwegian Contact Point has dealt with complaints against enterprises about, among other things, indigenous peoples’ rights, the right to organise and engage in collective bargaining and other human rights. In a separate compendium, the Contact Point has referred to ten “ground-breaking complaints” against various companies.³⁵⁰

One example of the OECD Contact Point’s handling of complaints in indigenous peoples’ issues is the case Jinjievaerie Sameby v Statkraft on the establishment of a wind farm in a Sami reindeer grazing area in Sweden. The Swedish and Norwegian OECD Contact Points considered the case in 2013. The dialogue (mediation) did not lead to an agreement between the parties, but a final declaration was issued by the Contact Points in 2014. The Contact Points found no basis for concluding that Statkraft had failed to comply with OECD guidelines, although it pointed to “room for improvement” on some points.³⁵¹

6.4 Enactment of enterprises’ human rights responsibility – the Transparency Act

Corporate human rights responsibility is a new area of law under rapid international development. In June 2021, Parliament adopted a new law on the transparency and work of enterprises with basic human rights and decent working conditions, the so-called Transparency Act.³⁵²

In the Act, larger enterprises are required to carry out due diligence. This obligation covers some of the areas in the OECD Guidelines, the enterprises shall, according to Section 4(b) “identify and assess actual and potential adverse impacts on fundamental human rights and decent working conditions” (our emphasis).³⁵³ The reference to basic human rights includes, among other things, ICCPR Article 27 and ILO 169.³⁵⁴

The obligations under the Act apply to one’s own business and to responsibilities directly related to the business through supply chains or business partners both inside and outside Norway.³⁵⁵ It may also include hindering or preventing negative impacts outside the business itself – for example, negative impact on indigenous peoples or local population.³⁵⁶

The obligation to carry out due diligence is limited to larger enterprises.³⁵⁷ This includes both private companies and state-owned enterprises.³⁵⁸ This obligation will therefore include larger enterprises wishing to interfere in Sami areas of use.³⁵⁹ The Government, however, expects that all companies, including those that fall outside the scope of the Transparency Act, know and follow UNGP and OECD guidelines and carry out due diligence.³⁶⁰

The obligation to carry out due diligence entails, among other things, that the relevant companies, when planning a development in Sami areas of use, must make such assessments that are in line with the assessment themes in ICCPR Article 27, and not to implement projects that will have a substantive negative impact on the Sami traditional practices. The due diligence will therefore have to include, among other things, evaluations of how impact assessments can be carried out in a responsible manner, assessments of cumulative effects over time, remedial measures and how consultations can be carried out in accordance with the rules in the Sami Act. The due diligence obligation includes the companies’ acts or omissions that may lead to violations of the right to life, property and privacy, as well as the right to cultural practice according to ICCPR Article 27, through climate damage.

Fotnoter:

¹United Nations Guiding Principles on Business and Human Rights (UNGP).
²OECD Guidelines for Multinational Corporations.
³See i.a. UN Global Compact. More than 16,000 companies in a number of different areas participate.
⁴Ministry of Foreign Affairs, “Næringsliv og menneskerettigheter – Nasjonal handlingsplan for oppfølging av FNs veiledende prinsipper” (“Business and Human Rights - National action plan for follow-up of the UN
⁵Meld. St. (Report to Parliament) 8 (2019-2020), “Statens direkte eierskap i selskaper – Bærekraftig verdiskapning” (“The state’s direct ownership in companies - Sustainable value creation”), p. 7, cf. pp. 10, 39 and 53 onwards.
⁶For the English language original version, see United Nations, “Guiding Principles on Business and Human Rights”, 2011, https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.
⁷Pillar 1) The states’ duty to protect human rights, Principles 1-10. Pillar 2) Corporate responsibility
⁸These rights are collected and presented in a matrix in Shift and Mazars, “UN guiding principles reporting framework”, 2015, pp. 102–108, https://www.ungpreporting.org/wp-content/uploads/2015/02/UNGuidingPrinciplesReportingFramework_withimplementationguidance_Feb2015.pdf
⁹Shift and Mazars, p. 101 onwards.
¹⁰United Nations, “Guiding Principles on Business and Human Rights”, 2011, commentary on Principle 12. https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.
¹¹UNGP Principle 17.
¹²See more about UNGP and indigenous peoples in e.g. “A/HRC, Comment on the Human Rights Council’s Guiding Principles on Business and Human Rights as related to Indigenous Peoples and the Right to Participate in Decision-Making with a Focus on Extractive Industries”, 2012, https://www.ohchr.org/Documents/Issues/IPeoples/EMRIP/Session5/A-HRC-EMRIP-2012-CRP1_en.pdf or IWGIA and European Network On Indigenous Peoples, “Interpreting the UN guiding principles for indigenous peoples Report 16”, 2014, https://www.iwgia.org/images/publications/0684_IGIA_report_16_FINAL_eb.pdf.
¹³Meld. St. (Report to Parliament) 8 (2019–2020), “Statens direkte eierskap i selskaper – Bærekraftig verdiskaping” (“The state’s direct ownership in companies - Sustainable value creation”), p. 83 onwards. Cf. “Næringsliv og menneskerettigheter – Handlingsplan for oppfølging av FNs veiledende prinsipper”
¹⁴The Transparency Act was not in force when the Ministry decided the Fosen case, but Norway had already in 2011 advocated that the UN Human Rights Council should adopt the UNGP. The Government’s Action Plan for Business and Human Rights from 2015, on the state’s responsibility for Sami rights, mentions the Minerals Act (mining), but not the Energy Act (wind power), p. 19.
¹⁵OECD Guidelines for Multinational Enterprises, Chapter 2, General Guidelines, Sections A 1, 2, 10 and 14, see also Chapter 4 of the Guidelines on Human Rights. There are 50 states, including the Nordic countries, that have acceded to the guidelines. https://les.nettsteder.regjeringen.no/wpuploads01/blogs.dir/263/ les/2013/11/OECD_retningslinjer_web.pdf.
¹⁶OECD Guidelines for Multinational Enterprises, paras. 36–40.
¹⁷OECD Guidelines for Multinational Enterprises, paras. 2 and 42.
¹⁸OECD Guidelines for Multinational Enterprises, paras. 4 and 5 and comments on human rights paras. 44 and 45.
¹⁹OECD, “OECDs veileder for aktsomhetsvurderinger for ansvarlig næringsliv” (“OECD Due Diligence Guidance for Responsible Business Conduct”) (OECD Publishing, 2019), https://les.nettsteder.regjeringen.no/wpuploads01/blogs.dir/263/les/2019/09/201904_OECD_DDveileder_nett l. Pdf For the more comprehensive main document, see OECD, “OECD Due Diligence Guidance for Responsible Business Conduct” (OECD Publishing, 2018), http://mneguidelines.oecd.org/OECD-Due-Diligence-Guidance- for-Responsible-Business-Conduct.pdf.
²⁰OECD, “OECDs veileder for meningsfylt interessentdialog i utvinningsindustrien”
²¹For more information about Norway’s OECD Contact Point for responsible business, see their website: https://www.responsiblebusiness.no/.
²²OECD Guidelines for Multinational Enterprises, p. 72 onwards.
²³OECD, “20 år med nasjonale kontaktpunkt – Ti banebrytende klagesaker om etterlevelse av OECDs retningslinjer for ansvarlig næringsliv (“20 Years of National Contact Points - Ten ground-breaking complaints about compliance with the OECD Guidelines for Responsible Business”) (National Contact Point OECD Guidelines for Multinational Enterprises, 2020).
²⁴Experiences from i.a. this process was discussed at a seminar organised by the OECD Contact Point and NHRI in June 2019 in Karasjok. The theme was key issues for the Sami faced with wind power and mining development. Participants from the Sami Parliament, the Sami civil society, Jinjievaerie Sameby, Fiettar reindeer grazing district, Kvalsund municipality and the business community, as well as other participants, exchanged views and discussed important issues related to human rights, reindeer husbandry and industrial establishment in reindeer husbandry areas. Both the international law background and the OECD’s guide for stakeholder dialogue, e.g. on indigenous peoples’ interests, as well as indigenous law challenges and how such conflicts are dealt with in practice, were discussed and summarised in a report from the seminar, the Norway’s National Institution for Human Rights and the OECD’s Contact Point for responsible business, Natural Resource Development, Business and the Rights of Indigenous Peoples (Karasjok, 2019).
²⁵Act relating to enterprises’ transparency and work on fundamental human rights and decent work conditions (Transparency Act) of 18 June 2021. The Act enters into force on 1 July 2022.
²⁶The Transparency Act Section 4 (b).
²⁷Prop. (Law Proposal to Parliament) 150 L pp. 15 onwards, 17, 37, 106.
²⁸Prop. (Law Proposal to Parliament) 150 L p. 118, cf. p. 107 onwards.
²⁹Prop. (Law Proposal to Parliament) 150 L p. 69.
³⁰The Transparency Act Section 3. By larger enterprises, it is meant enterprises that are covered by the Accounting Act Section 1-5, or which on the date of financial statements exceed the threshold for two of the following three conditions, sales revenue of NOK 70 million, balance sheet total of NOK 35 million or average number of employees in the financial year: 50 full-time equivalent. It is still expected, however, that other enterprises also know and comply with UNGP and OECD guidelines, including the due diligence that follow from these.
³¹Prop. (Law Proposal to Parliament) 150 L p. 47.
³²The implementation of the UNGP and OECD guidelines for multinational enterprises in the finance sector will also be strengthened through two relatively new EU regulations, Regulation (EU) 2019/2088 on the publication of sustainability information in the financial sector and Regulation (EU) 2020/852 on the classification system for various sustainable activities. Compliance with human rights responsibility is a sustainability factor in both EU regulations, which the Financial Supervisory Authority of Norway (Finanstilsynet) proposes to implement in a new law on information on sustainability.
³³Prop. (Law Proposal to Parliament) 150 L p. 31. The Transparency Act does not replace the international principles.