Indigenous Rights, Environmental Rights, or Stakeholder Engagement? Comparing IFC and OECD Approaches to the Implementation of the Business Responsibility to Respect Human Rights

The Organisation for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises (OECD MNE Guidelines) and the International Finance Corporation (IFC) Performance Standards on Environmental and Social Sustainability (IFC Performance Standards) are widely viewed as key international standards to which extractive companies operating internationally should comply. Indeed, these standards, together with the United Nations (UN) Guiding Principles on Business and Human Rights (UNGPs), are promoted by Canada in its November 2014 enhanced corporate social responsibility (CSR) strategy for extractive sector companies operating abroad. The strategy states that the Canadian government expects companies operating outside of Canada to “respect human rights and all applicable laws, and to meet or exceed widely-recognized international standards for responsible business conduct”. Yet the OECD and the IFC take distinct approaches to the embedding of indigenous rights and environmental rights, two categories of human rights commonly affected by extractive company operations. For example, the OECD MNE Guidelines address human rights and environment in different guidelines, and there are no specific guidelines concerning the rights of indigenous peoples. The IFC Performance Standards, on the other hand, refers to human rights only briefly in the first performance standard as part of its social risk assessment, but provides more detailed standards on various environmental and social matters including biodiversity conservation, pollution prevention and indigenous peoples’ rights. However, in early 2016, the OECD released a Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractives Sector (OECD Stakeholder Engagement Guidance) designed to provide practical guidance in line with the OECD MNE Guidelines. This paper will examine the commonalities and differences between the IFC and OECD approaches to the integration of business responsibilities for human rights with a focus on procedural environmental rights and the right of indigenous peoples to free, prior, and informed consent (FPIC). The paper will also briefly assess the potential effectiveness of these instruments in light of associated compliance mechanisms