Environment Bill

Written evidence submitted by Forest Peoples Programme (EB32)

The Environment Bill and Indigenous and Forest Communities

Summary

1. Forest Peoples Programme (FPP) is a human rights organisation working with indigenous peoples and local communities (together, IPLCs) across the globe to secure their rights, including to their land. This mandate has often intersected with, and highlighted the detrimental effects of, intensive commodity production on human rights. This includes, but not restricted to agricultural, mining, pulp and paper, livestock and timber supply chains.

2. Our submission relates to an amendment (NC5) to the Environment Bill proposed by Kerry McCarthy MP, which would require the Secretary of State for the Environment to introduce a new law on mandatory human rights and environmental due diligence (HREDD).

3. We strongly support the inclusion of this amendment, which would place the UK at the forefront of mandatory HREDD. The appetite for mandatory HREDD is also gathering momentum in the EU and individual member states. [1] We urge the Committee to recommend its adoption, and suggest incorporating some minor modifications set out below.

Why this amendment is important

4. Two decades of FPP’s work with communities and in-country partners, including recent research dealing specifically with commodity supply chains and ground-truthing to improve due diligence processes, [2] confirms that:

(1) Tropical forest frontiers continue to be dominated by an industrial production and extraction model, which has a multitude of negative impacts on IPLCs, often because of a lack of recognition of and respect for collective and customary rights.

(2) A key human rights issue commonly faced by IPLCs is the lack of recognition of their right to own and occupy their ancestral lands, and the expropriation of these lands from IPLCs without their free, prior and informed consent. Beyond the loss of property, this entails significant further negative impacts on their rights, affecting their livelihood security, health, cultural and environmental resources and governance arrangements. It is also often associated with environmental degradation, including deforestation.

(3) UK companies (including financiers) may be involved in supply chains affecting IPLC rights in a number of ways. In some cases, UK or UK-owned entities may be directly involved in industrial agricultural production, mining etc. In other cases, UK companies may be involved as processers, manufacturers, traders, buyers, transporters, financiers etc. The supply chains in which UK companies and financiers are involved extend well beyond the UK market, and involve supply to markets across the world. [3]

(4) Although certain UK companies and investors have begun to conduct some form of HREDD, this is not widespread. Generally, where they exist, these processes are neither sufficiently robust nor subject to any accountability. They rely too heavily on inadequate methodologies including at-distance risk assessments, tick-box auditing processes that are not led by independent entities, and/or self-reporting by their suppliers.

(5) The consultation of rightsholders is particularly necessary in respect of long, multi-tiered supply chains involving many third party suppliers. Upstream suppliers (such as farm-level producers) are often invisible to downstream traders or buyers in the UK: but their activities are visible to communities living in close proximity to these companies, who can provide important supplementary information in due diligence processes to enable downstream companies to engage more effectively. However, consultation with rightsholders is rarely undertaken. Regulatory measures are needed to supplement this, both to require it and support its implementation. In a recent study produced by the British Institute of International and Comparative Law (BIICL), 75% of business surveyed agreed that additional regulation on corporate human rights obligations may benefit business by facilitating leverage with third parties in their supply chain. [4] This suggests that there is business appetite for regulation can facilitate their engagement with upstream suppliers.

(6) IPLCs and local civil society organisations (CSOs) are best-placed to highlight the nuances of ground-level dynamics. It is particularly important to reinforce this role at a time where there is a documented increase in persecution, threats, intimidation and violence against communities and their leaders who question or challenge unsustainable, illegal and unjust production practices. [5]

(7) Credible, independent external accountability is critical to the effectiveness of due diligence and other corporate accountability mechanisms. It is also important that accountability mechanisms support both preventative action (e.g. when due diligence is inadequate to prevent foreseeable future risks that have not yet materialised) as well as to remedy harms that have been suffered.

Comments on the proposed amendment

Proposed subclause 4

5. We would draw the attention of the Committee to proposed subclause (4) of the amendment, which requires that the draft Bill should "seek to ensure that all goods placed on the UK market" meet certain criteria, in particular aiming at reducing deforestation and ecosystem conversion. FPP wishes to make two comments in respect of this proposed provision:

a. As noted above, the activities and supply chains of UK companies do not relate exclusively, nor necessarily predominantly, to UK consumption: many UK companies produce, process, buy, sell or invest in products or services for consumption in other markets. In our view it is critical that due diligence legislation is not restricted to supply chains leading only to goods "being placed on the UK market", but applies also to UK companies’ supply to other markets. Not only is this the only way to capture the true global environmental and social footprint of the UK, it is also a more sensible approach for UK businesses operating in multiple markets, who will be required to undertake the same due diligence processes in respect of all their supply chains.

b. Ultimately the objective of due diligence legislation must be to prevent or reduce production of unsustainable and non-human rights compliant commodities – not merely to reduce the consumption of such commodities in the UK (without denting global production patterns). As such, it will be imperative that the measures adopted support systemic change in supply chains (rather than merely supply shifts), and as such promote shared responsibility between UK businesses and overseas suppliers. This will mean avoiding automatic prohibitions on placing goods on the market in favour of requiring UK companies to engage with suppliers to prevent violations, improve systems and/or remedy non-compliance. Not only is this necessary to achieve the systems change that is desired, it is also essential to ensure that future legislation does not prompt UK companies to disengage from existing suppliers and supply chains in a way that causes further adverse human rights and environmental consequences.

Subclause (7)(d)

6. Subclause (7)(d) of the proposed amendment provides that the Bill must "establish a system which ensures effective and appropriate remedy for any person affected by environmental and human rights impacts". The mechanisms for such remedy are not specified, but could include the complaints mechanism anticipated by subclause (7)(c). FPP submits that, in addition to any quasi-judicial or regulatory avenues for remedy, it is essential those who suffer harm because a company has not carried out adequate HREDD have a statutory right to seek civil relief through the courts – a requirement which should be explicitly set out in the amendment. This approach will ensure that there is always an independent mechanism for remedy available to victims of harm

Proposed modifications

7. On the basis of the above, FPP supports the amendment and proposes the following minor modifications:

· Subclause (4): replace "all goods placed on the UK market" with "all goods produced, processed, manufactured, bought, sold or financed by UK companies or their subsidiaries".

· Subclause (6): insert the word "collective" before "rights of indigenous peoples and local communities".

· Paragraph (7)(d): insert at the end of the paragraph ", including the right to bring a civil claim for relief before a court in the United Kingdom".

For more information, please contact Ligia Baracat (ligia@forestpeoples.org)

March 2020