As developing countries embrace market economies, a primary source of investment is in the form of foreign direct investment through action by Multinational Enterprises (“Multinationals”) inside a country’s borders. Activity by a Multinational is often regulated only by the host country, which may place minimal restrictions on it for fear of losing investment. This places the country’s people and environment at risk. Indigenous peoples affected by poorly planned or managed development have no opportunity to change plans before they are enacted, and have little chance to obtain reparation for damages suffered. A way of addressing this lack of participation in the development process is through the National Contact Point (“NCP”) review process created by the Organization for Economic Co-operation and Development Guidelines for Multinational Enterprises (“Guidelines”). NCP review allows an affected group to challenge a specific instance where a Multinational violated the Guidelines. A challenge can be based on future plans, as well as actions that occurred in the past. Raising a specific instance initiates a review process that evaluates the particular concerns of the indigenous people who brought the challenge. Although the NCP itself has no enforcement power, bringing a challenge under the Guidelines may affect third-party relationships with the Multinational, influencing its behavior through peer pressure. NCP review provides a powerful tool to otherwise underrepresented indigenous peoples in the development context. The use of NCP review to change mitigation procedures at a hydroelectric dam in Laos illustrates the process and its effectiveness. The process of NCP review allows for reconsideration of the development of a mine in Papua New Guinea that brought environmental destruction and civil war to the indigenous people of Bougainville.
If I Had a Hammer: The OECD Guidelines for Multinational Enterprises as Another Tool to Protect Indigenous Rights to Land,
15 Pac. Rim L & Pol'y J.
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