13 April 2022

On 10 November 2021, the UK government passed into law the UK Environment Act. While this law is primarily concerned with environmental protection within the UK, Schedule 17 attempts to tackle illegal deforestation overseas. Under this Schedule, certain businesses will be required to prove that their products are “deforestation-free” and compliant with local laws, but respect for indigenous peoples’ and local communities’ rights – in particular their land rights - has not been expressly required. This makes Schedule 17 limited and incomplete and the UK government’s approach shortsighted...

The law makes no reference to international human rights law or, more specifically, to the rights of indigenous peoples and local communities as set out under international law. It does not impose on businesses an express requirement to ensure respect for these rights, nor does it expressly stipulate that the relevant local laws they are required to ensure compliance with include legal provisions on, or related to, the rights of indigenous peoples and local communities to their lands, territories or resources. These are serious gaps which put at risk the effectiveness of the legislation...

Schedule 17, if adequately implemented and enforced, can provide a level of protection to indigenous peoples and local communities in countries where their customary tenure rights are explicitly recognized and protected under national law. Indigenous peoples and local communities in these countries can leverage Schedule 17 to demand respect for their rights and report instances of non-compliance, with potentially significant economic repercussions for the businesses concerned. However, an approach that relies solely on compliance with national laws is insufficient for three main reasons.

Firstly, laws that expressly recognize and protect the rights of indigenous peoples and local communities do not exist in all producing countries.

Secondly, where they do exist, they often fall short of international standards...

Thirdly, actual enforcement of these laws is often weak or non-existent (even for communities with registered property titles), or is compromised by competing and contradictory legal requirements. This makes it very difficult for businesses (and regulators) to monitor and ascertain compliance...

To ensure its approach to global deforestation is both meaningful and effective, the UK government needs to change course on its approach to regulating the trade in forest risk commodities. And it should also go further, by proposing a new law capable of tackling both the environmental and human rights impacts of UK businesses and their global supply chains.  

Firstly, it must review Schedule 17 at the earliest opportunity with a view to including specific requirements on businesses to ensure respect for the rights of both indigenous peoples and local communities as set out under international law. This review must follow basic principles of quality, transparency and independence and allow ample participation and input from all relevant stakeholders, including in particular indigenous peoples and local communities themselves...

In the meantime, the secondary legislation must clearly stipulate that protections and rights that relate to indigenous peoples and other communities with customary land rights are comprised within the understanding of relevant local laws under Schedule 17...

Finally, the UK government must urgently begin work towards a comprehensive Business, Human Rights and Environment Act in line with the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises. Unlike Schedule 17, this law would establish comprehensive human rights and environmental due diligence obligations on businesses across the board. The duties to respect the rights of indigenous peoples and local communities and ensure deforestation-free products would be embedded within a larger duty to respect human rights and the environment, backed up by a strong enforcement mechanism and civil liability regime...