Reposted from www.sirgecoalition.org

By Bryan Bixcul (Maya Tz’utujil), SIRGE Coalition and Benjamin Hitchcock Auciello, Earthworks

In late 2022, many Indigenous leaders were in Montreal, Canada, to witness the adoption of what is arguably one of the most consequential international environmental agreements since the Paris agreement. On December 19, 2022, the presidency of the 15th Conference of the Parties to the UN Convention on Biological Diversity (CBD COP 15) adopted the Kunming-Montreal Global Biodiversity Framework (KM-GBF) at the CBD COP 15. The framework aspires to halt and reverse biodiversity loss, one of the greatest challenges of our time.

The KM-GBF includes vital safeguards for Indigenous Peoples’ rights and acknowledges their critical role in ecosystem management and biodiversity conservation. Notably, the framework contains twenty references to Indigenous Peoples, eight mentions of Traditional Knowledge, two references to Free, Prior and Informed Consent, and one reference to the UN Declaration on the Rights of Indigenous Peoples. These elements collectively enhance the framework for the benefit of all.

Although the framework appears promising on paper, several barriers hinder meaningful implementation. This includes the absence of the United States—a key player in global environmental policy—from the Convention. The Convention’s true impact depends on the political will and capacity of parties to swiftly mobilize resources and implement the framework effectively at the national level.

Can the Goals and Targets of the KM-BGF Be Achieved alongside the Energy Transition? 

On the demand side, the International Energy Agency (IEA) predicts demand for the minerals that the industry has deemed essential for the global energy transition is set to increase dramatically by 2040. Lithium demand could rise up to 51 times its current level, driven by its use in batteries for electric vehicles (EVs) and energy storage systems. Copper, needed for electrical components and renewable energy systems like solar panels and wind turbines, is expected to nearly double in demand. Nickel, necessary for high-density batteries in EVs, could see a 60% to 70% increase. Cobalt, also required for battery technologies, may experience a demand surge of 6 to 30 times current levels, while graphite, used in battery anodes, could see up to a 30-fold increase. Additionally, the demand for rare earth elements (REEs), necessary for manufacturing EV motors and wind turbines, could increase up to sevenfold by 2040. Several experts have pointed out that more than 300 new mines could be needed to meet the increasing demand for these minerals.

With skyrocketing demand for transition minerals and the expected expansion of mining operations in the coming decades, a critical question arises: Where will new mines be located? 

Currently, more than half of energy transition mineral projects worldwide are situated on or near Indigenous Peoples’ lands, which are some of the most biodiverse areas on Earth. These lands are already under intense pressure from extractive industries and the escalating impacts of climate change. Indigenous Peoples’ lands are also rich in mineral deposits, and they will likely continue to face encroachment from mining operations. This is why the full implementation of Indigenous Peoples’ right to Self-Determination and the right to Free, Prior and Informed Consent (FPIC) as enumerated in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is crucial. When the right to FPIC is respected and operationalized to minimum standards articulated in the UNDRIP, Indigenous Peoples’ have full participation in projects that impact them and decision-making authority to protect their lands, cultures, and ecosystems. 

Even as many mining companies promote their projects as “green” and “sustainable,” the methods used in the mining of these minerals, such as water intensive extraction and open-pit mines, are responsible for severe biodiversity and social impacts. Many of these projects threaten cultural and sacred sites, burial sites, watersheds, and landscapes. During extraction, toxic materials such as arsenic, mercury, cadmium, chromium, and lead are released into the air and water, with devastating long-term effects on people, biodiversity, and the ecosystems they depend on.

Harmful narratives often present the extraction of transition minerals as necessary for addressing the climate crisis, making the resulting ecological harms appear justifiable in the pursuit of a ”green” energy future. However, presenting this as a choice between resource extraction for a “green” energy future and the protection of ecologically and culturally vital lands is a false dilemma. In reality, there are numerous alternative solutions to explore that prioritize both biodiversity and people. 

It is evident that humanity won’t achieve a just energy transition by maintaining the status quo nor will we resolve this crisis with the same extractive mindset that created it. Instead we must  fundamentally change our approach by embracing truly sustainable practices, like those rooted in Indigenous values, including reciprocity, regeneration, balance, and circular economies. 

Meeting the goals and targets of the KM-GBF and achieving a just energy transition starts by placing the well-being of nature and people at the center of proposed solutions and implementation. 

Does Target 15 Offer a Path to Further Corporate Respect for Indigenous Rights?

The KM-GBF contains 23 global targets for urgent action before 2030. Target 15 directs parties to take “legal, administrative or policy measures to encourage and enable business[es]” to assess, disclose and reduce biodiversity-related risks and negative impacts. While the target doesn’t mention Indigenous Peoples explicitly, KM-GBF’s targets are to be understood, acted upon, implemented, reported upon, and evaluated in a manner consistent with the contributions and rights of Indigenous Peoples.

For Target 15 to effectively compel mining companies, alongside other corporate actors, to respect the rights of Indigenous Peoples, such implementation must: 

(1) require, not just encourage, companies to report in detail on how FPIC has been obtained from affected Indigenous Peoples; 
(2) require States to provide for an independent grievance mechanism that has the authority to enforce sanctions and injunctive measures as required to remedy violations of Indigenous Rights or inaccurate reporting regarding the same; and  (3) require States to provide the means necessary to build the capacity of Indigenous governance structures to exercise their right to self-determination and FPIC.

It is vital to note that an Indigenous community has the right to determine every aspect of a process around FPIC, including how it wishes to be consulted, how the consultation process shall proceed, how it will make decisions, and whether it chooses to give or withhold its consent.

There is already broad recognition amongst corporate and financial reporting frameworks that reporting on biodiversity impacts and dependencies cannot take place in a vacuum. This means that affected rights-holders must be consulted (and such engagement reported on) throughout decision-making processes, and in the case of Indigenous Peoples that their FPIC must be obtained prior to engaging in any activities that may affect their lands, territories, and resources that they customarily own, occupy, or otherwise use. 

The corporate advocacy network, Business for Nature, stated in a 2022 position statement on Target 15 that “[b]usinesses are responsible for securing and respecting the rights of communities in places they operate. This includes implementing effective Free and Prior Informed Consent processes.”

Similarly, the leading voluntary biodiversity reporting methodologies, the Taskforce on Nature-Based Financial Disclosures (TNFD), and the Science Based Targets Network (SBTN), both have published guidance on stakeholder engagement in the context of reporting on biodiversity risks and impacts, with an emphasis on the rights of Indigenous Peoples. 

It should be noted, however, that TNFD has been criticized by civil society organizations for its lack of transparency and accountability. According to Banktrack, “TNFD reports will not have to include information on where companies are facing allegations of harming biodiversity or environmental defenders. The data in reports will also be unverifiable and companies will not need to report their lobbying against new laws that help protect nature. The framework will not allow communities affected by biodiversity harms to even know the names of companies who are buying from, or financing, activities in their area.” These insufficiencies raise serious concerns about whether TNFD’s framework, on its own, can truly safeguard biodiversity and Indigenous rights in practice.

What is the Status of Implementation?

The extent of implementation thus far is difficult to determine, but given the lack of available data, it appears to be limited. The Monitoring Framework of the KM-GBF (CBD Decision 15/5) provides only superficial indicators for implementation of Target 15, focusing on the “number of countries taking legal, administrative or policy measures to ensure that Target 15 is achieved” and “the number of companies reporting on disclosures of risks, dependencies and impacts on biodiversity.” No data is currently published on the former, and there is not yet a methodology that has been developed for the latter. For now, the data being collected and published relates only to the number of companies publishing sustainability reports, which says little about the extent of Target 15’s implementation or the nature thereof. Per CBD Decision 15/6, national reports on implementation are to be published in 2026 and 2029 based on the indicators set out in the Monitoring Framework.

The EU’s Corporate Sustainability Reporting Directive (CSRD) is an encouraging, while still imperfect, example of implementation. The CSRD is a legislative framework that requires EU member States to ensure that companies within its scope gather data on their materials risks and impacts (including through their value chains) across a wide range of areas, including biodiversity. The European Sustainability Reporting Standards (ESRS) provide the technical guidance for CSRD-subject entities to assess and report on. ESRS E4 covers biodiversity risks and impacts, and this section of the ESRS, along with others, emphasizes the importance of reporting on engagement with affected stakeholders, including if and how FPIC has been obtained from affected Indigenous Peoples. It should be noted, however, that the CSRD relies on companies to undergo an internal materiality assessment to determine which ESRS sections and corresponding strategies, policies, actions, metrics, and targets it will report on.

Recommendations to Implement a Corporate Indigenous Rights Policy

Most mining companies and their financiers do not have a policy to identify and report on Indigenous Peoples rights risks and impacts. An Indigenous rights policy allows companies to understand and transmit to their shareholders, management, and customers the potential material, reputational, and legal risk that is assumed when projects harm Indigenous communities or violate the rights of Indigenous Peoples. Indigenous rights risks and impacts due diligence must:

1. Scope for and integrate Indigenous Peoples’ right to Self-Determination and their right to Free, Prior and Informed Consent; and 

2. Identify all impacted or potentially impacted Indigenous Peoples, invite their participation in project development, address their concerns, and uphold their priorities. 

Without corporate policy that upholds Indigenous Peoples’ rights to the minimum standards articulated in the UNDRIP, and without operationalizing the right to FPIC as defined by impacted Indigenous Peoples, not only are States failing to uphold their duty to protect rights, and corporations are failing to uphold their independent duty to respect human rights under the UN Guiding Principles on Business and Human rights (UNGPs), the risk and harm to Indigenous Peoples and companies are twofold:

1. For Indigenous Peoples, this increases the likelihood of conflict, human rights violations, desecration of sacred places, pollution of life-sustaining resources, violence against Indigenous women and children from an influx of temporary workers; and in extreme, but not uncommon, the murder of Indigenous human rights defenders, among other harms.

2. For the companies, this translates to unmitigated material risk. When companies fail to secure FPIC and provide due diligence on Indigenous Peoples’ rights, the company and its investors are exposed to financial, legal, and regulatory risks due to operational delays, lawsuits, and regulatory restrictions, among others. A company may end up losing hundreds of millions of dollars on operational delays, regulatory restrictions, remediation costs, and lawsuits—all preventable losses if a company carries out the required Indigenous Rights Risk due diligence. For example, on December 15, 2023, the Inter-American Court of Human Rights ordered the State of Guatemala to ‘suspend and not extend’ the license to the Fenix Nickel Mine Project, a mine owned by Swiss-based Solway Investment Group operating in a biodiversity hotspot in Maya Q’eqchi territories, because the mine failed to obtain Indigenous communities’ consent before operations began. According to their website, since 2011, Solway has invested around $620 million USD on the project. This showcases the huge risks that projects and their financial backers face when they fail to respect the rights of Indigenous Peoples.

Closing

Around 55% of the global gross domestic product ($58 trillion USD) is estimated to be moderately or highly dependent on nature. Efforts to quantify the value of the ecosystems and habitats that sustain life itself are inherently fraught, but the reality is that all of the world’s economic activity is in some way dependent on nature. The decisions being made by States and companies will have an impact on all people and nature.

Biodiversity loss is a daunting and complex issue that will require a set of solutions, and we cannot delay action. World leaders must mobilize resources and implement the KM-GBF to the highest standards for Indigenous Peoples’ rights. As humans, we have a responsibility to get this right for each other, our future generations, and for the nearly nine million species that share this planet.