The participants in this conference, drawn from the South East Asian National Human Rights Institutions Forum (SEANF), UN Permanent Forum on Indigenous Issues and from supportive civil society, indigenous representatives and international organisations, including from Bangladesh,Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines and Thailand, met in KotaKinabalu in Sabah, Malaysia, between the 3rd and 4th November 2016, to consider ways of ensuringState and Non-State actors respect, protect and remedy human rights in the agribusiness sector. Themeeting included staff and board members from the Roundtable on Sustainable Palm Oil (RSPO) and from global companies, Unilever, Cargill and Sime Darby. The meeting was convened by the Human Rights Commission of Malaysia – SUHAKAM – and the Jaringan Orang Asal SeMalaysia (the Indigenous Peoples’ Network of Malaysia), with the support of the Forest Peoples Programme (FPP).
The participants reviewed recent developments and progress in the region, directly relevant to making human rights obligations binding on agribusiness, and explored in particular the opportunities and challenges provided by RSPO’s piloting of the Jurisdictional Approach to certification in Sabah. While the final report on the meeting will capture proceedings in more detail, including action plans on specific cases and major challenges, key findings include the following.
The potential of jurisdictional certification to raise the environmental and social standards of commodity production was highlighted by RSPO, companies and local NGOs. Sabah has committed to 100% RSPO-certified sustainable palm oil by 2025. The jurisdictional approach is meant to ensure wider compliance by medium- and small-producers, as well as large companies, with no lowering of the standard. Locally adapted measures to respect and protect rights – to customary lands, the right to Free, Prior and Informed Consent (FPIC), of workers and of smallholders – are being developed. However, the meeting noted that complementary mechanisms are also needed to provide remedy for human rights abuses and to verify and enforce compliance. There is also a need to overcome the current limitations of multi-stakeholder certification systems to address deeply nested power disparities and encourage respect for human rights and diversified production. Within the region, even where FPIC is legally required, FPIC processes face severe problems, especially from militarization, government agency incompetence, imposed representation, lack of community awareness of their rights and overhasty decision-making.
In several countries, National Human Rights Commissions are taking the lead to develop National Action Plans on Business and Human Rights in conformity with the UN Guiding Principles but the challenge remains to get ‘buy in’ by relevant Government agencies and then action by the private sector. In the Philippines, the Commission is undertaking a detailed review of the extent the current legal framework places binding obligations on agribusiness. The Commissions noted that their limited budgets and mandates restrict their capacity to address abuses, while their fortunes also changed as national governments more or less committed to human rights took power, by electoral or other means. Despite setbacks, the Thai Human Rights Commission has been able to address several transboundary investments by Thai companies in Myanmar, Laos and Cambodia, facilitated in part by the conferences.
In both Indonesia and Malaysia, there have been delays in implementing the recommendations of the National Inquiries on Indigenous Peoples’ Land Rights, but at least these were being taken up, at Cabinet level in Malaysia and in Indonesia, where a Special Task Force on Indigenous Peoples’ Rights is also being considered by the President. Action to implement the recommendations is still needed. Greater transparency and involvement of rights-holders in monitoring implementation was advocated. In Bangladesh, a new Land Commission, with a majority of indigenous members, has just been set up in the Chittagong Hill Tracts, with the authority of a civil court to recognize rights and adjudicate and resolve land disputes, in accordance with laws, customs and procedures of the region.
In several countries, notably Indonesia and Thailand, there is increasing inequity in land distribution. Land disputes causing human rights violations, are among the most common complaints received by the Commissions, from land grabbing, imposed concessions and absent or unclear titling. In Indonesia, community members are often criminalised for resisting imposed agribusiness concessions and agrarian conflicts are increasing. In Thailand, numerous conflicts have emerged, notably in Special Economic Zones in 10 Provinces. In Myanmar, 75% of complaints received by the Commission relate to land. In the Philippines, the ineffectiveness of local offices of the National Commission on Indigenous Peoples to ensure FPIC was noted. Palm oil was expanding in Palawan and in Mindanao, and there have been killings and other serious abuses. Some progress has been made to profile the oil palm land grabs in Palawan with the support of NCIP, CHRP and NGOs, but remedy remained elusive. Even where remedial processes were being tried, the inequitable balance of power between companies and communities frustrated good outcomes. International processes such as OECD were onerous and costly to engage with. Communities need much more information and locally accessible, well resourced, independent mediation to make remediation processes effective.
In Indonesia to date only 2% of forests have been allocated to community management but more than 60% handed out to companies. Current government policies now promise to allocate a further 12 million hectares of forests to communities, a target, which, if realised, might raise this to 10%. In the agrarian sector there is also growing inequality in land ownership, which the current government’s agrarian reform strategy seeks to address through the resolution of conflicts and the redistribution of 9 million hectares of land. While new legal options exist to secure indigenous peoples’ and local communities’ rights in forests and farmlands, the procedures are onerous and not yet widely applied. Throughout the region, legal reforms are needed to speed up land rights recognition and titling. Stronger institutional responses are needed to integrate protections of indigenous peoples’ rights into agrarian reforms and forest policy development.
In Laos and Cambodia, land conflicts continue owing to imposed land concessions on unprotected community lands. Both countries have imposed moratoriums on new land concessions in 2012 while current contracts are reviewed, but the review processes lack transparency. In Cambodia, collusion and corruption between government and business in land matters, overlapping ministerial responsibilities and conflicting laws, continue to be major obstacles to reform. A draft policy and law on land in Laos is still being developed, with CSO participation, which needs to clarify how it will secure customary rights and communal tenures and provide full, fair and prior compensation in cases of expropriation. The principle of FPIC is not yet widely accepted in Laos. Efforts to hold foreign investors accountable to international standards are being frustrated by the restrictive enabling environment. Meanwhile, companies are getting around the concessions moratorium, through unfair contract-farming arrangements, which are generating growing farmer dissatisfaction. In general, efforts to reform laws and ensure effective implementation require greater government comprehension of the real problems faced by farmers and indigenous peoples.
The meeting agreed that moratoriums on the issuance of further concessions are needed to provide a necessary breathing space so agrarian and agribusiness policies, laws and implementation capacity can be adjusted to ensure more equitable and rights-based outcomes, including in Sabah.
While the meeting focused on land rights and the continuing problem of land grabbing from indigenous peoples and local communities, it was noted that agribusiness in the region is associated with abuse of labour rights, forced labour, child labour, human trafficking and exploitative relations with smallholders in supply chains. The human rights responsibilities of actors in the downstream value chain also need attention. It was also noted that even where there have been gains in agrarian reforms or indigenous rights recognition, these are often frustrated by contradictory government programmes, for dams, mines and infrastructure, which open up vulnerable areas before land rights are secured.
Community spokespersons attending the meeting observed that they face marginalization and are too often treated as ignorant rural folk. Their rotational farming methods are mis-perceived as ‘idle lands’. Indigenous peoples emphasised that they need to organise for themselves in order to secure their rights in line with international human rights laws. The human rights commissions, NGOs and international community all need to support their struggles and magnify their voice so it is heard by governments and companies.
Delegates heard sobering reports from the two fact-finding trips, undertaken by two teams of delegates just prior to the conference, to review two government-supported projects, one for shrimppond development in Pitas and the other a palm oil joint venture on customary lands under ‘communal title’ in Bigor. In both cases, there have been serious land rights violations andenvironmental destruction, of mangroves and upland forests respectively, after inadequate consultation with the communities involved. The meeting called on participants and international and national organisations to endorse the letter sent by the Pitas communities to the Chief Minister of Sabah, called on the government to respond appropriately, and appealed to SUHAKAM to investigate the case.
As one Bigor resident noted:
Our economy has been truly disrupted by the coming of oil palm. We feel so disappointed.
We have nowhere to hunt anymore. We have nowhere to plant our crops. Our economy
has been destroyed (Statly Ahimpang).
In Tongod a 14-year land conflict with a subsidiary of Genting Plantations has now been resolved through the courts owing to community unity, sustained NGO support and long years of pro bono legal counsel. The cases reveal both the lack of protection afforded to indigenous peoples’ rights in Sabah and the need to revise the law on communal title so that it can’t be mis-used to promote corporate interests at the expense of customary landowners.
Finally, delegates from KomNasHAM (the human rights commission of Indonesia) kindly offered to host the 7th conference in 2017, in collaboration with CSOs, with the objectives of: reviewing progress on the main findings raised at the previous six conferences; focusing on transboundary concerns related to human rights and agribusiness, and; advocating a regional mechanism to address human rights violations by agribusiness. This proposal was warmly endorsed by the whole meeting.
Adopted by acclamation
4th November 2016