Understanding Affected Indigenous Peoples as Rightsholders in Engagements – Brief
Recognizing affected people as rightsholders changes the quality of consultation and human rights due diligence, and it changes the decisions that follow. If findings concerning impacts on rights are documented but do not influence project design, financing, approval, certification, or supervision, the process becomes procedural rather than rights-respecting.
Tallgrass Institute has released Indigenous Peoples as Rightsholders: Distinguishing Rightsholders and Stakeholders in Consultation, Due Diligence, and Project Decisions. The brief responds to a recurring question in consultation, human rights due diligence, financing, and assurance contexts about what changes in practice, process and outcomes when Indigenous Peoples are understood and engaged with as rightsholders and not only as stakeholders.
“The practical implications are particularly significant where projects may affect Indigenous Peoples’ lands, territories, resources, waters, sacred sites, cultural heritage, livelihoods, or governance systems,” says the report. These areas are “increasingly visible in the transition mineral extraction, renewable energy development, infrastructure siting, and related supply chains affecting Indigenous Peoples’ territories.”
The brief explains that where stakeholder engagement asks who should be informed, consulted, or involved and when, additional questions must be asked when rightsholders such as Indigenous Peoples are affected:
Whose rights may be affected and what rights are at stake?
Through which institutions do they exercise those rights?
What process and timing is required to respect those rights?
What duties and responsibilities follow?
Noting that the distinction of Indigenous Peoples’ as rightsholders is made in the UN Guiding Principles on Business and Human Rights and Indigenous-specific standards including the United Nations Declaration on the Rights of Indigenous Peoples and International Labour Organisation Convention No. 169, the brief defines terminology as such:
A stakeholder is a person, group, institution, or actor with an interest in, potential influence over, or potential exposure to a project, policy, investment, or decision. Stakeholders may include Indigenous Peoples, local communities, workers, civil society organizations, government agencies, investors, companies, suppliers, customers, and others.
A rightsholder is an individual or, in certain contexts, a collective that holds rights under applicable human rights standards. In the context of development projects, rightsholder identification asks whose individual or collective rights may be affected by any aspect of the project. Being a stakeholder is not the same as being a rightsholder. Where human rights may be affected, consultation and human rights due diligence must respond to the nature of those rights, the rightsholders involved, and to the duties and responsibilities that flow from those rights.
The brief provides recommendations specifically for business enterprises, financiers and investors, standard setters and assurance bodies, and governments. Overarching recommendations towards strengthening practices include to:
Distinguish general stakeholder engagement from consultation with affected rightsholders;
Identify Indigenous Peoples and other affected rightsholders early, including where rights are not formally recognized by the State and where customary, seasonal, ancestral, cultural, or ecological relationships extend beyond formal project or administrative boundaries;
Assess collective rights, including rights to lands, territories, resources, culture, governance, self-determination, and free, prior and informed consent (FPIC);
Engage Indigenous Peoples through their own representative institutions and decision-making processes;
Ensure consultation is early, informed, accessible, culturally appropriate, and free from coercion or intimidation;
Clarify when FPIC is required and how consent will be sought, documented, and respected, particularly in the case where it is withheld;
Treat unresolved serious rights-related concerns as relevant to decisions on project approval, financing, certification, and supervision, rather than only as issues for ongoing engagement;
Assess whether rightsholder input changed the project, including its design, location, timeline, mitigation measures, benefit-sharing arrangements, monitoring, grievance mechanisms, or the decision to proceed;
Ensure access to effective remedy where harms occur or risks are not adequately addressed; and,
Ensure that certification, audits, or other third-party assessments include evidence from affected rightsholders and do not rely solely on company-provided documentation.
For Indigenous Peoples, questions of what must be identified, who must be engaged, which institutions and decision-making processes must be respected, and what consultation and due diligence must be capable of influencing are inseparable from respect for self-determination, lands, territories and resources, representative institutions, culture, FPIC, and remedy, concludes the report. Framing for rightsholders strengthens “how decisions are made, whose authority is recognized, whose rights are protected, and whether affected peoples can meaningfully shape decisions affecting their territories and futures.”