Indigenous Peoples and Human Rights

October 16, 2019

Credit Suisse makes step toward Indigenous rights after mediation by Society for Threatened Peoples

Credit Suisse makes a step toward  indigenous rights

In response to the effort made by Credit Suisse, Dineh (Navajo) attorney Michelle Cook said more is needed. Referring to the Dakota Access Pipeline and the Standing Rock Water Protectors who stood against it, Cook said:

'Considering that Credit Suisse provided corporate finance, not project finance to DAPL, this provision will do little to prevent another scandal and indigenous human rights abuses from occurring. As expected they are only including this Free, Prior, and Informed Consent provision toward project finance and not towards all investments maintaining their legal fictions that human rights only apply to projects, not to their business partners and all investments. We are still demanding a remedy, and still demanding a total exclusion and banishment of companies like ETP and Enbridge from their investment portfolios for indigenous human rights violations. We are not finished with you yet Credit Suisse, you can bet on that!'

Thankful for all the hard work by indigenous divestment advocates, thankful to all the lawyers who collected the human rights violations at the encampments, and for the IPLP program who continues to submit these abuses to international human rights bodies to seek justice for victims of extractive industries and the criminalization of our movements!
#divest #divestinvestprotect #NODAPL #StopLine3 #indigenousrights

By Society for Threatened Peoples

Censored News

Today, the Society for Threatened Peoples (STP) and the Swiss bank Credit Suisse concluded a mediation process, facilitated by the Swiss National Contact Point (NCP), in the context of the OECD Guidelines for Multinational Enterprises. Credit Suisse has resolved to incorporate the protection of indigenous communities’ rights into its internal guidelines on project financing.
The STP welcomes this important step as a clear signal for the entire financial sector. However, it expects CS, as well as the other financial institutions, to extend this policy to all domains, such as company financing and stock broking. In addition, decisive action is expected in the event of breaches.

In April 2017, the STP filed a complaint against the Swiss bank Credit Suisse with the Swiss National Contact Point for the OECD Guidelines for Multinational Enterprises. This was triggered by the fact that, at the time, CS was maintaining key business relations with the firms that built the Dakota Access Pipeline (DAPL) in the USA. Thousands of indigenous people and water activists were protesting against the project because they feared the pipeline’s ecological risks. Unlike other banks, which partly withdrew from the project, CS never issued a public statement on the violent conflict around Standing Rock between the US authorities, the pipeline operators and the affected indigenous communities. Even the UN criticised the construction of the pipeline and the approval process.

Arbitration proceedings between the STP and CS began in spring 2018. As a result of this process, Credit Suisse agreed to incorporate the UN’s concept of “free, prior and informed consent” (FPIC) into its internal sector-specific guidelines on oil, gas, mining, forestry and agriculture, as well as to mention key components in its public summaries of these policies. In future, when financing projects that may have a negative impact on a region that is used or traditionally claimed by indigenous communities, CS will expect its customers to provide evidence that an amicable solution has been sought by means of active engagement with both the authorities and the affected indigenous communities, along the lines of FPIC.

“We welcome this improvement of the internal guidelines and acknowledge this as the bank’s first steps towards incorporating the rights of indigenous communities,” says Angela Mattli, campaign coordinator at STP. “At the same time, we note that CS is limiting its compliance with FPIC to project financing. Company financing and stock broking are excluded from these guidelines. The extension is therefore only a small step in the right direction when it comes to comprehensive protection of indigenous communities.” The Society for Threatened Peoples will monitor the implementation of the guidelines and expects CS to expand them soon, so as to include other business segments. CS is also expected to take decisive measures if the guidelines are not met.

The STP highly values the NCP as an accessible mechanism for mediating between companies and affected communities. At the same time, it wishes to emphasise that the OECD guidelines are not binding and that the NCP does not dispose of any means to impose measures. It should therefore by no means be understood as an alternative to the Responsible Business Initiative, which seeks to legally oblige companies to incorporate respect for human rights and the environment in all their business activities.
National Contact Point of Switzerland Final Statement Specific Instance regarding Credit Suisse submitted by the Society for Threatened Peoples 

Switzerland Berne, 16 October 2019 1.
Context The OECD Guidelines for Multinational Enterprises (OECD Guidelines) represent a set of principles and standards for responsible business conduct, addressed as recommendations by the governments of the 36 OECD member and 12 other adhering states to multinational enterprises operating in or from their territories.
The National Contact Point of Switzerland (henceforth referred to as “Swiss NCP”) for the OECD Guidelines has the mandate to raise awareness and promote observance of the OECD Guidelines. The Swiss NCP also contributes to the resolution of issues that arise relating to the implementation of the OECD Guidelines in specific instances by offering a forum for mediation, assisting parties concerned to deal with these issues and providing recommendations regarding the implementation of the OECD Guidelines. On 28 April 2017, the Society for Threatened Peoples, Switzerland (henceforth referred to as “STP” or “submitting party”), submitted a written request to the Swiss NCP to consider a specific instance under the OECD Guidelines regarding Credit Suisse (henceforth referred to as “CS” or “responding party”), which has its headquarters in Switzerland. The submission concerns CS’s business relation with companies involved in the construction of the Dakota Access Pipeline in the United States and related alleged human rights violations.
2. Proceedings of the Swiss NCP Since the receipt of the submission on 28 April 2017, the Swiss NCP took the following steps: x Written confirmation to the submitting party to acknowledge receipt of the submission on 28 April 2017. x Preliminary discussion by phone with the responding party in order to inform it about the submission and explain the Swiss NCP’s proceedings on 3 May 2017. The submission was forwarded to the responding party on 4 May 2017. x On 11 May 2017, according to the Specific Instances Procedure of the Swiss NCP1 an ad hoc working group was constituted, including representatives from the State Secretariat for Economic Affairs, the Federal Department of Foreign Affairs and the Federal Office of Environment. This working group was involved in all steps of the procedure of the specific instance. x On 15 May 2017, the US NCP was informed by the Swiss NCP regarding the submission.
1 ganisation-und-kontaktaufnahme.html Page 2/3 x On 16 May 2017, the ad hoc working group of the Swiss NCP held separate meetings with the responding party and the submitting party respectively to inform them about the procedure of the specific instance. x On 29 June 2017, the Swiss NCP received a written statement by the responding party in response to the submission. The statement was forwarded to the submitting party on 30 June 2017.
x On 22 August 2017, the NCP sent its draft report on the initial assessment to both Parties for comments on possible misrepresentations of factual information.
x On 28 August 2017, the NCP received written comments by the submitting party. The responding party asked the NCP for an extension of the deadline and submitted its written comments on 2 October 2017.
x On 19 October 2017, the Swiss NCP concluded in its published Initial Assessment 2 that the issues raised in the submission merited further consideration.
It therefore accepted the specific instance and offered its good offices to the Parties. x Both Parties accepted the offer of the Swiss NCP for mediation. x The Swiss NCP suggested to both Parties to have a mediation facilitated by a professional external mediator contracted by the Swiss NCP.
The Parties agreed to the appointment of an independent mediator. x Both Parties agreed on 15 April 2018 on the Terms of References for the dialogue. x Between July 2018 and May 2019, five mediation meetings took place at the premises of the Swiss NCP in Berne with representatives from STP (three people, with one replacement during this period), Credit Suisse (three people), a representative of the Swiss NCP and the independent mediator. x The Parties reached an agreement on several substantial points and on the disclosure of the results on their discussions on 13 September 2019.
Joint Outcome of the mediation process The Parties agreed to disclose the following elements as a result of their discussions:
3.1. Scope of the Dialogue It is the Parties’ understanding that according to the Terms of Reference (ToR) the focus of the discussion is not on the specific case of the Dakota Access Pipeline (DAPL) or any other concrete case. The Parties agreed that the concept of Free, Prior and Informed Consent (FPIC) is essential in the context of this specific instance. Accordingly, the dialogue focussed on the concept of FPIC and its operationalisation.
3.2. Credit Suisse Internal Policies (1) The Parties acknowledge that CS will include FPIC in its internal sector specific policies for Oil & Gas, Mining and Forestry & Agribusiness as follows: “When there is credible evidence that the proceeds of a project-related transaction are used for activities which may negatively impact an area used or traditionally claimed by an indigenous community, Credit Suisse expects its clients, with respect to this transaction, through active engagement with the respective authorities, regulatory bodies and affected communities, to demonstrate alignment with specific key objectives and requirements of the International Finance Corporation (IFC) Performance Standard 7 – Indigenous Peoples, which incorporate the principles of the United Nations Declaration on the Rights of Indigenous Peoples and the concept of Free, Prior and Informed Consent (FPIC)”
2 Page 3/3 (2) CS commits to implement this policy and to include the key elements such as the alignment with the concept of FPIC and the respective expectations towards clients in its public summaries of the policies. CS will notify STP and the NCP of the policy’s entry into force.
Six months after the entry into force of the policy, CS will inform the NCP on the measures taken to implement the policy.
(3) The Parties acknowledge that operationalising the inclusion of FPIC in CS sector specific policies as mentioned in para. (1) above will benefit from the review of FPICrelated impacts by a team with specific expertise within CS.
. Follow-up The Parties agree that CS will inform the STP and the Swiss NCP about the entry into force of the policy mentioned above.
4. Conclusions and follow-up Both Parties engaged throughout the entire mediation process in a constructive manner.
They demonstrated a firm willingness throughout the process to find a mutually satisfying resolution of the issues raised in the submission. The Swiss NCP welcomes: x the resolution of the issues raised by the submitting party regarding the concept of FPIC and its operationalisation; x the commitment of CS to include FPIC in its internal sector specific policies on Oil and Gas, Mining and Forestry and Agribusiness and to inform the STP and the Swiss NCP of the entry into force of this policy;
x the agreement of the Parties on a follow-up by the Swiss NCP. The Swiss NCP will follow up closely the implementation of the agreed Joint Outcome of the mediation process. With this Final Statement, the Swiss NCP closes the specific instance.

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