Protecting the rights of Indigenous people
August 9, 2023
How the ASC Farm Standard can enhance the protection of the rights of Indigenous People in seafood farming
Seafood farming has not always been conducted with due respect for Indigenous peoples’ rights and in some places, seafood farming, especially in marine areas, such as salmon farming, is seen as a violation of traditional territories, hence a threat to customary activities. Others see it as an important creator of jobs and a vital source of income, including for Indigenous people. Based on awareness of these issues and feedback received during public consultations, ASC has started a project to explore whether and how the concept of Free, Prior and Informed Consent (FPIC) can be robustly incorporated into the ASC Farm Standard. FPIC requires States and companies to obtain the informed and freely granted consent of Indigenous peoples before starting projects on land or marine territories that Indigenous peoples traditionally own and use, through a meaningful process of consultation or dialogue (see ToR of the project).
The project began with a research project by Paloma Soriano, an MSc student from Wageningen University and Research (WUR), with the title “Exploring the Potential for Including FPIC in the ASC Farm Standard: Certification’s Role in Interactions Between Commercial Aquaculture and Indigenous and Local Communities”. In this blog we interviewed Paloma about her findings. Below, you can read ASC’s response to the findings of the report, and more information on ASC’s FPIC project.
What motivated you to research this topic?
I was motivated to research this topic because Free, Prior and Informed Consent (FPIC) at its core, is about equality, especially in situations where powerful actors, such as corporations or the State, dominate. These situations may create longstanding power imbalances and lead to environmental and social damage to Indigenous and local communities. I was excited to conduct this research to understand the impacts that aquaculture operations can have on communities. I believe that engaging with local communities and respecting their territorial or customary traditions and rights is essential for a company to be responsible and sustainable. I am intrigued by how ASC, as a certification organisation, may play a role in supporting aquaculture businesses in considering and implementing FPIC.
How did you go about your research?
I conducted case studies on salmon farming in Canada and Chile and shrimp farming in Vietnam and interviewed a range of actors from different stakeholder groups, such as producers, producer associations, academia, NGOs, government, and partners of Indigenous communities. I asked them questions about their experience with interactions between Indigenous people and aquaculture and asked their opinion on a possible role for ASC to improve this. I then compared the responses of different stakeholder and from the different countries.
What were your main findings about the interactions between Indigenous people and aquaculture companies?
The interactions between Indigenous people and aquaculture companies turned out to be quite diverse both within and across case studies. For salmon farming in Canada and Chile, there was clear polarisation between people in favour of or against aquaculture, and respondents described a lack of trust between stakeholder groups and even within Indigenous groups. This lack of trust also extended to the reliability of science, especially related to the environmental impacts of farming salmon on wild salmon populations. My biggest takeaway was that interactions between Indigenous people and aquaculture are heavily determined by the quality of the relationships, how they are maintained and nurtured over time.
What surprised you most about these findings?
I was most surprised by the high level of polarisation on the topic. I had heard that for some aquaculture has historically had a bad reputation, but I was not aware of how strong negative feelings are in some communities surrounding aquaculture operations, still today.
Additionally, I was surprised to learn that some salmon aquaculture farms in Chile are operating in protected areas, some of which considered indigenous ancestral territory. This can be explained by the fact that certain areas were designated as protected after the establishment of farms. Respondents and other sources (Mongabay Environmental News, 2023), explained complexities relating to national parks prohibiting salmon farms while reserves and other types of protected areas allow salmon operations.
On a more positive note, it was inspiring to learn about instances in British Columbia where FPIC was implemented and how models of benefit sharing exist between indigenous communities and farms. Examples of farms consulting with First Nations successfully include farms closing operations when First Nations denied consent (news article). Another example illustrates collaboration between the Kitasoo/Xai’xais First Nation, who processes and packages the salmon farmed in their territory by Mowi, which is now sold at Walmart Canada (news article).
What are the main challenges / questions that ASC would need to address to include FPIC in the Farm Standard?
Because the topic is so polarised, collaboration between opposing groups will be challenging. To understand the different sides and help overcome polarisation in the long term, ASC needs to engage with a diverse group of stakeholders. This includes those that oppose aquaculture who will be harder to reach and less likely to engage. Indigenous people are likely not a group that ASC normally engages with in public consultations. The respondents interviewed described how communication methods like emails and surveys will not work to reach communities. Additionally, the time and resources to engage with ASC may also be limited or not a priority for Indigenous communities. Associated with this challenge to collaborate, will be building a deep understanding of specific social contexts required to implement an FPIC process.
Another challenge is that policy and regulatory frameworks for FPIC differ between countries as I saw from the case studies. For example, there is a more conducive policy framework in British Columbia in Canada than in Chile, where they are facing implementation difficulties, while in Vietnam they may not acknowledge any issues related to Indigenous rights. This means that ASC will need to better understand whether the policy and regulatory frameworks in the different countries where there are ASC certified farms are enabling FPIC processes. This may have implications for how any standard requirements are implemented and verified in different countries.
What would you recommend ASC do next?
I have three main recommendations for ASC’s next steps. The first recommendation focuses on the capacities needed to implement and audit FPIC processes. To make sure new standard requirements are implementable, ASC should invest in programs to enhance awareness and understanding of FPIC among industry stakeholders, local communities, as well as auditors. It is particularly important that this includes an understanding that FPIC is a continuous process. Secondly, ASC will need to develop clear guidelines for auditing FPIC processes, that include guidance on how auditors should engage with diverse stakeholders. Finally, ASC should consider actively advocating for the recognition and implementation of international commitments and national laws that support FPIC and Indigenous rights. This may involve working with government bodies, NGOs, and other stakeholders to promote regulatory updates and alignment with international standards.
ASC’s response to the findings of the report
ASC’s response to the findings of the report “Exploring the Potential for Including FPIC in the ASC Farm Standard: Certification’s Role in Interactions Between Commercial Aquaculture and Indigenous and Local Communities”
The research report highlights several key points for ASC to be aware of in its FPIC project:
- The differences in how international frameworks (the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the International Labour Organisation Indigenous and Tribal Peoples’ Convention (ILO C169, 1989)) are translated into national laws and policy frameworks, and what this means for Indigenous people and businesses.
- How the high degree of polarisation and sensitivity on seafood farming in Indigenous territories has led to a situation where some are no longer prepared to engage in any dialogue.
- The question of how to deal with FPIC in places where aquaculture farms have long been established and there is therefore no possibility for prior consent.
- The need for capacities and resources both on the side of Indigenous people and aquaculture business to engage in a meaningful FPIC process.
Transcending national legal and policy frameworks
The research report has highlighted the complexities of FPIC in relation to national legal and policy frameworks. While many countries (148) have signed on to UNDRIP, the translation of its principles in national laws is lagging, and where they have been included in law, their application and enforcement are often weak. This means that for businesses there is often not a clear policy, or legal and regulatory framework within which the infringement of Indigenous people’s rights is prevented. The research report has shown that, in the context of FPIC this is most obvious in a lack of clarity regarding the laws and policies governing ownership, access and use of land and water, and in the lack of coherence of policy frameworks across different departments and governmental levels that shape business behaviours.
However, this is no excuse for seafood businesses to evade their responsibility to respect human rights. As described by the UN Guiding Principles on Business and Human Rights (UNGP), this responsibility exists independently of the ability or willingness of States to fulfil their human rights obligations over and above compliance with national laws and regulations. This is also where ASC sees the role of certification; to provide a framework for businesses to take actions to protect human rights, that transcend differences in national legal and policy contexts. Such actions include measures for the prevention, mitigation, and remediation of infringements of Indigenous people’s rights. This applies to all businesses regardless of their size and sector, but how they meet that responsibility may vary according to these two factors and with the severity of the business’s (potential) adverse human rights impacts.
Indigenous people’s rights: escalation beyond dialogue
The research report highlights the high level of polarisation and sensitivity around aquaculture in areas on which Indigenous people have claims. This polarisation is fuelled by a long history of infringement of Indigenous people’s rights, and a lack of recognition of their terrestrial and marine tenure rights all over the globe. At the same time, businesses have invested in their activities, based on concessions, licenses or approvals obtained when such claims were (or currently still are) not recognised or considered by States. This has led to a high level of distrust between Indigenous Peoples, State governments, and businesses. The report has highlighted how in some places people (and NGOs) do not even want to be seen speaking with aquaculture businesses, and consequently with ASC.
This makes ASC’s current FPIC project highly challenging as it may prove difficult to obtain views from all parties involved. In its FPIC project, ASC intends to reach out to as many people as possible, but we recognise that understanding where to begin engagement is difficult and therefore welcome your input and suggestions of who to engage in this process.
FPIC where there is no longer a possibility for prior consent
An important component of FPIC is that consent is sought prior to, and well in advance of the start of any activity. Aquaculture production volumes started seeing steady growth since the late 1990s. This means that some farms settled in certain areas years, if not decades, ago, during a time when there was (even) less attention and recognition of Indigenous people’s rights. Under these circumstances, there is no such thing as prior consent. This does not release these farms from their duty to ensure they have consent for their activities in a particular area, but it has implications for the process of trying to obtain F(P)IC, and the consequences connected to its outcomes. This not only applies to new farms wanting to become ASC certified, but also to those that are currently certified (around 2000 farms in over 50 countries). It is worth noting that obtaining consent for ongoing seafood farming activities without FPIC in territories claimed by Indigenous people is potentially going to be more difficult because it is likely there is already a higher degree of distrust and polarisation between parties in those places.
This issue, together with the one discussed next, makes it very important for ASC to carefully think about the resources and guidance needed to implement an FPIC process.
Capacities and resources
Finally, the research report notes the issue of capacities and resources to engage in FPIC processes, for both Indigenous people and the businesses involved. It requires the capacity to facilitate dialogue both between Indigenous people and businesses, and potentially the State, but also among Indigenous people themselves. Indigenous people will have many demands on their time and will often not have the backing of an organisation that pays for their time, unlike business representatives. Businesses may have limited staff with the skills to engage in these processes and may have many questions, such as who to contact to initiate an FPIC process, and how to manage negotiations. As FPIC is not a one-off moment of consent, but is a continuous engagement process, these capacities and resources are needed on an ongoing basis, on both sides.
ASC not only needs to consider this for the requirements in the Farm Standard but also during the implementation of the FPIC project itself.
ASC has started a project to explore the possibility of including the concept of Free, Prior and Informed Consent in the ASC Farm Standard, considering the issues pointed out by the report, as well as other questions, such as how auditors can verify FPIC processes. The FPIC project will include diverse viewpoints as well as the latest scientific knowledge on the topic, and ASC welcomes your opinions and inputs on this project. A first opportunity to do so is the public consultation on the Terms of Reference of ASC’s FPIC project. These will be released in September, with more information shortly available.
To find out more about what ASC is doing to improve how Indigenous Peoples voices are heard in seafood farming, please visit our Human Rights section. If you have any questions on this topic, please contact Froukje Kruijssen.