Statements from Expert Mechanism on Rights of Indigenous Peoples

Published by MAC on 2012-07-17
Source: UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)

Joint statement on extractive industries

United Nations Expert Mechanism on the Rights of Indigenous Peoples

Fifth Session, 9-13 July 2012

Agenda Item 4: Follow-up to thematic studies and advice

Joint submission by Grand Council of the Crees (Eeyou Istchee), Assembly of First Nations, Amnesty International, Canadian Friends Service Committee (Quakers), Union of British Columbia Indian Chiefs, Native Women's Association of Canada, Treaty Four First Nations, Haudenosaunee of Kanehsatake, Indigenous World Association, First Peoples Human Rights Coalition, KAIROS: Canadian Ecumenical Justice Initatives

Speaker: Andrew Erueti, Amnesty International

Our organizations welcome the Expert Mechanism's consideration of the Follow up report on indigenous peoples and the right to participate in decision making, with a focus on extractives. This is an important opportunity for the United Nations human rights system to more deeply engage with one of the most pressing concerns facing Indigenous peoples around theworld.

There is an urgent need for effective implementation of international standards for the protection of Indigenous peoples' rights, in the face of mounting pressures over resource development. Although repeatedly affirmed by the international human rights system, the strong standards forIndigenous peoples' control of their lands, territories and resources are too often ignored in practice.

While some Indigenous peoples have been able to work collaboratively with extractive industries to ensure that they benefit fromdevelopment on their lands, states have failed to establish and maintain effective legal frameworks necessary to ensure Indigenous peoples' rights are recognized and protected in every instance. The reliance on voluntary compliance by corporate interests fails to address the power imbalance thattypically exists between Indigenous peoples and the proponents of extractive development. This also denies Indigenous peoples' means of effective redress when their rights are violated.

Many states are promoting the expansion of resource extraction activity both domestically and abroad through various forms of support to extractive industries, including loans, subsidies, political support and the negotiation of trade agreements. Such measures are taken without adequate assessment of the potential impact on the human rights of Indigenous peoples or legal safeguards against the violation of these rights.

We strongly concur with the Follow up Report's emphasis on the central importance of the right of free prior and informed consent (FPIC). We support the Report's analysis that FPIC is an integral component of Indigenous peoples' right to self-determination and their rights to lands, territories and resources. FPIC is also an essential safeguard for other rights indispensable for Indigenous peoples' survival, dignity and well-being.

The protection of Indigenous rights must be an urgent state priority, particularly given the continued systemic marginalization and extreme impoverishment faced by so many Indigenous peoples around the world. This situation is exacerbated by the unresolved legacy of widespread historic violations of their rights and the continued threats to their peace, security and survival.

Accordingly, our organizations respectfully submit the following points for the consideration of the Expert Mechanism.

FPIC is generally the standard required in respect to extractive activities

As affirmed in EMRIP's advice No. 2 (2011), the "duties to consult with indigenous peoples and to obtain their free, prior and informed consent are crucial elements of the right to self-determination". Indigenous peoples' right to give or withhold FPIC is further reinforced by their right to determine their own priorities and strategies for exercising their right to development. It is also reinforced by Indigenous peoples' relationship with their lands, territories and resources and their responsibility to future generations in this regard.

In relation to proposed projects affecting Indigenous peoples' lands, territories and resources, article 32 of the UN Declaration affirms: "States shall consult and cooperate in good faith with the indigenous peoples concerned ... in order to obtain their [FPIC]". In diverse circumstances, this would require Indigenous peoples' FPIC consistent with their right of self-determination.

Should factual situations arise where FPIC may not apply, the duty of states still goes beyond "consultation" and requires "cooperation". States are required to negotiate with Indigenous peoples in good faith in order to obtain their consent. This goes beyond a duty to "seek" consent.

As Special Rapporteur James Anaya describes in his July 2009 Human Rights Council report: "The somewhat different language of the Declaration suggests a heightened emphasis on the need for consultations that are in the nature of negotiations towards mutually acceptable arrangements, prior to the decisions on proposed measures".

Indigenous peoples' right to redress for failure to obtain FPIC

Article 28 of the UN Declaration is unambiguous in its affirmation that the confiscation, taking, occupation, use or damaging of Indigenous lands, resources and territories of Indigenous peoples without FPIC is a violation of Indigenous peoples' human rights that requires state redress. International standards of justice require, where possible, the restoration of the victims of human rights violations to the circumstances enjoyed prior to the violation. The Declaration defines such restitution as returning lands or, when this not possible, providing "lands territories and resources equal in quality, size and legal status." Redress also requires guarantee of non-repetition of the violation, which in this instance would require state measures to ensure ongoing protection of the right to FPIC.

FPIC and the balancing of rights

Situations could arise where in Indigenous peoples' right to FPIC may need to be balanced with overlapping and competing rights claims, including the rights of other Indigenous peoples. Such a balancing of rights would need to be carried out on a case-by-case basis, in accordance with international standards. In particular, article 27 of the Declaration calls on states to establish, in conjunction with Indigenous peoples, "a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples' laws, traditions, customs and land tenure systems."

Scale of impact or project not the only consideration

It is insufficient to rely on scale of impact as a primary consideration in the balancing of rights. This follow up study, and the prior EMRIP study, rightly conclude that the potential impact of a proposed activity must be assessed in relation to "the cumulative effects of previous encroachments or activities and historical inequities faced by the indigenous peoples concerned." It should also be noted that certain activities, such as uranium mining, pose inherent risks to Indigenous peoples' use of the land regardless of the scale of proposed activity. Furthermore, the legal circumstances of Indigenous peoples, such as a persistent state failure to recognize and demarcate their land title, may mean that any state authorization of extractive activities without Indigenous consent would further entrench an unjust and unacceptable status quo.

Claims of "national" or "public" interest cannot trump the rights of Indigenous peoples

There is a disturbing tendency of states to assert vague and ill-defined "national" and "public" interests as a justification for ignoring the rights of Indigenous peoples in respect to their lands, territories and resources. "National" or "public" interest cannot simply exclude or override human rights. Respect, protection, fulfilment and promotion of human rights constitute state obligations under international law, including the Charter of the United Nations. In virtually all states, human rights are a national commitment.

Consultation processes are not an alternative to FPIC

The well-established state obligation to consult with Indigenous peoples whenever contemplating measures that might affect Indigenous peoples' rights can be an appropriate means to identify and accommodate such rights. Consultation processes, however, must not be defined as alternative to obtaining free, prior and informed consent. The exclusion ofFPIC from national consultation processes serves to predetermine the outcome and lacks validity. This violates the principles of objectivity and non-selectivity in upholding human rights. No consultation process can be meaningful or in good faith if there is a predetermined outcome.

Indigenous participation in decision-making requires timely and adequate information

The right and principle of "informed" consent requires, inter alia, full and understandable information relating to the proposed project or activity. Failure by states, including its public bodies, toprovide such information would violate the right of Indigenous peoples and individuals to freedom of expression.

Access to information is essential for full, democratic and effective participation by Indigenous peoples and is consistent with state accountability, transparency and good governance. Exceptions to the right to information should be narrowly construed.

Refusal by the state to obtain or disclose significant science-based information can serve to preclude Indigenous peoples' "informed" consent. Such conduct may also be a violation of Indigenous peoples' right to freedom of expression.

Participation should include all members of Indigenous communities, including equitable participation of Indigenous women and youth.

State-imposed time limitations preclude fair assessments

In regard to environmental, social and cultural impact assessments, States must not impose pre-determined time limits to complete such processes. There may be a host of legitimate factors that could arise in specific situations and that justify more rigorous assessment. Pre-determined time limits may preclude the achievement of fair and impartial assessment processes.

RECOMMENDATIONS TO EMRIP

Our organizations recommend the following additional points be added to Advice No. 4 to clarify the guidance provided to states and corporations and ensure consistency with international human rights standards.

1. FPIC is generally the standard required in respect to extractive resource activities in or affecting Indigenous lands, territories and resources. National consultation processes that omit or exclude FPIC lack legitimacy or validity. Indigenous peoples' right to give or withhold FPIC is further reinforced by their right to determine their own priorities and strategies for exercising their right to development. It is also reinforced by Indigenous peoples' relationship with their lands, territories and resources and their responsibility to future generations in this regard.

2. Should factual situations arise where FPIC may not apply, the duty of states still goes beyond "consultation" and requires "cooperation". States are required to negotiate with Indigenous peoples in good faith in order to obtain their consent. This goes beyond a duty to "seek" consent.

3. Article 28 of the UN Declaration on the Rights of Indigenous Peoples affirms a state obligation to provide redress for the confiscation, taking, occupation, use or damaging of Indigenous lands, resources and territories of Indigenous peoples without free, prior and informed consent. Such redress requires restitution of lands and protection against further violations. States have a duty, in conjunction with Indigenous peoples, to establish effective, fair and transparent mechanisms for these purposes.

4. Any determination of whether FPIC is required to achieve an appropriate balancing of rights must only be undertaken on a case-specific basis after a fair, independent, impartial, open and transparent process. This must be carried out in conjunction with Indigenous peoples and with due recognition to their laws, traditions, customs and land tenure systems.

5. States engaged in the promotion of extractive activities in or affecting the lands and territories of Indigenous peoples in other countries have an obligation to ensure that these activities fully conform to international human rights norms, including FPIC. Such obligation applies when states negotiate trade agreements or provide financial assistance and other support to nationally registered corporations. In the negotiation of trade agreements, timely and thorough disclosure of state positions is critical so that mutually acceptable arrangements may be achieved with the Indigenous peoples affected.

---

Statement by the National Native Title Council on behalf of the lndigenous Peoples Organisations Network of Australia

to the Expert Mechanism on the Rights of lndigenous peoples

9-13 July 2012, Geneva

Presented by Brian Wyatt

Supporting Organisations:
National Native Title Tribunal
Gugu Badhun Limited
New South Wales Aboriginal Land Council
Australian Human Rights Commission

Item 4: Follow-up to thematic studies and advice: 
Follow up report on Indigenous peoples and the right to participate in decision making, with a focus on extractive industries

Thank you Mister Chair,

Before I begin, the IPO Network of Australia welcomes the proposed visit by the special Rapporteur on the Rights of Indigenous peoples to discuss extractive industries and their relationship with the state and Indigenous people in Australia.

Mr Chairman, in 1992 the Mabo decision on native title was celebrated by Indigenous peoples and feared by many others in Australia. The Australian government initially responded to the Mabo decision by introducing the Native Title Act 1993. Through this Act, it was hoped to establish a social justice package for indigenous peoples that included a raft of measures such as the purchase or lands and the potential to benefit from those lands.

The relationship between lndigenous peoples and the extractive industry in Australia has a complex and varied history since the introduction of Native Title Act. Initially, there were concerns raised by extractive industries particularly the mining industry, that the additional impost of native title delayed timeframe and increased their costs.

The extractive industry negotiates with native title groups under the right to negotiate provision of the Native Title Act. This provision allows for the extractive industry to negotiate with indigenous peoples for access to land and includes those groups with registered claims yet to be resolved as well as those with fully determined rights and interests. This provision has allowed for a "seat at the negotiating table" resulting, in some cases, with significant economic benefits for indigenous peoples, their families and communities.

With over 400 native title claims yet to be determined, the right to negotiate continues to provide a fundamental right for indigenous people to access and share in benefits for what will inevitably mean access to their lands by the extractive industry.

The Native Title Act, in effect, was proclaimed with full and proper recognition that it was a special measure under both the United Nations Convention on the Elimination of All Forms of Racial Discrimination and Australia's Racial Discrimination Act 1975.

This special measure has provided the extractive industry the environment under which to undertake negotiation with indigenous peoples. The original spirit of the Native Title Act 1993 is clearly stated in its preamble:

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented ... A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation, and if not, in a manner that has due regard to their unique character.

The preamble goes on to say that Governments should facilitate negotiations that satisfy claimants' aspirations to their land, including proposals for economic use of the land. This should have provided the basis for the recognition of native title rights and interests through a negotiation and consensus approach. Unfortunately, however the preferred option for respondent parties was litigation and legislative mechanisms were used by Governments to initiate amendments that reduced the rights of native title groups over their land.

Article 32 of the Declaration provides for the right of indigenous peoples to determine their own priorities for the development or use of their lands as well as the right to free, prior and informed consent for any project affecting their lands or territories. 60% of mining activity neighbours indigenous communities and the extractive industry has become one of the biggest employers of indigenous peoples outside the Government sector.

Like self-determination, free, prior and informed consent reinforces all of the rights contained within the Declaration. According to the Human Rights Council, free, prior and informed consent has been identified as a 'requirement, prerequisite and manifestation of the exercise of our right to self-determination'.

In Australia, free, prior and informed consent has formed a significant platform for fair and reasonable decision making, particularly in relation to the negotiation of comprehensive agreements with the extractive industry. Negotiating agreements are becoming common practice and lndigenous peoples are gaining confidence in determining their own beneficial outcomes.

Agreements negotiated between mining companies and indigenous communities or other land connected peoples are increasingly important in terms of formalising the conditions upon which mining can take place on indigenous lands, as well as the compensation and benefit sharing arrangements that flow from mining.

However indigenous peoples are not able to fully experience the benefits of free, prior and informed consent. Indigenous peoples do not have genuine decision-making authority and power over their lives and futures. That power and authority continues to rest in the hands of governments. Currently there are no examples of indigenous people having negotiated royalty contributions or ownerchip rights over corporations. Article 26 of the Declaration provides that indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, as well as the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership.

Despite the recognition outlined in the Expert Mechanisms Report on the right to participate in decision-making with a focus on extractive industries that 'international law has developed a clear principle of the right of indigenous peoples to permanent sovereignty over natural resources', the Convention on Biological Diversity recognises the sovereign rights of States over their natural resources in areas within their jurisdiction. States also have the obligation to take appropriate measures with the aim of sharing the benefits derived from their use in a fair and equitable manner.

It is time for Indigenous Peoples to be fully afforded the benefits from their traditional lands. Indigenous people must rely heavily on the development of strong relationships with key stakeholders like peak industry associations representing exploration, mining and minerals processing companies. ln Australia, one industry body's members account for more than 85% of annual minerals production in Australia and a slightly higher proportion of mineral exports.

Some key pilot projects and activities can occur through these relationships such as the development of the international Extractive Industries Transparency lnitiative (EITI). And also address projects that focus on the gendered nature of agreements and agreement-making processes through the Centre for Social Responsibility in mining (CSRM), to identify factors that enable and/or constrain the achievement of gender equality and to understand the extent to which these factors influence women's economic and development capacity.

Economic sustainability of indigenous communities is critical to the future of their communities and it's critical for health and well being. At the same time and just as critical is indigenous cultural sustainability. For indigenous peoples this relates to how they can maintain their cultural identity.

According to a follow-up report of the Human Rights Council there are three pillars of the Guiding Principles on business and human rights as they relate to indigenous peoples and the right to participate in decision making.

• State's duty to protect against human rights abuse by third parties;
• Corporate responsibility to respect human rights; and
• Access to remedy

States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, when human rights abuses occur, those affected, including indigenous peoples, have access to remedy.

Recommendation

We recommend that the Expert Mechanism on the Rights of Indigenous Peoples urge all states to develop mechanisms that encourage extractive industries to engage with indigenous peoples to implement the UN Declaration on the Rights of indigenous Peoples, and to acknowledge and address the Rio+20 lndigenous Peoples Declaration on Sustainable Development, to access and share in the benefits from their lands, territories and resources.

Thank you, Mr Chairman

---

Statement by the American Indian Law Alliance and The Multicultural Alliance for a Safe Environment

Presented by: June L. Lorenzo

Expert Mechanism on the Rights of Indigenous Peoples - 5th Session, Geneva

9-13 July 2012

Agenda Item 4: Follow up on Thematic Studies and Advice:

FOLLOW-UP REPORT ON INDIGENOUS PEOPLES AND THE RIGHT TO
PARTICIPATE IN DECISION-MAKING' WITH A FOCUS ON EXTRACTIVE INDUSTRIES

Introduction and congratulations to Chair and Vice-Chair

This statement is given on behalf of the American Indian Law Alliance, the Multicultural Alliance for a Safe Environment, and Haudenosaunee of Kanehsatake'

At this moment we are forced to deal with the prospect of renewed uranium mining near indigenous lands. while two native nations have adopted legislation that prohibits further uranium mining or places a moratorium on mineral extraction, many of these projects are proposed for lands that we traditionally occupied but are no longer within our jurisdiction. Much of the area proposed is on national forest lands or other public lands. In the United States, the 1872 Mining Act gives these companies a right to extract minerals. This is the context from which we address this agenda item. Today, at a side event on uranium Mining in the American Southwest, we will present more information on these issues.

First, we appreciate the fact that EMRIP agreed to undertake the follow-up report on Indigenous peoples and the Right to Participate in Decision-making with a focus on Extractive Industries. In this and other UN fora we have heard many accounts of how indigenous peoples have been displaced from their lands because of outright theft by extractive companies or due to such environmental devastation that the lands are no longer inhabitable. Thus this follow-up report and the final report will be critical UN documents for use by indigenous peoples, for those who may chose the path of resource extraction, but more importantly for those whose fundamental beliefs do not support extraction.

we have also taken note of the work on the Special Rapporteur on the same topic and look forward to reading his report later this year. As well, we appreciate the efforts taken by the Permanent Forum.

However, we have some concerns about portions of the follow up report. A key portion of your reports is the International Legal and Policy Framework. It is critical that special attention be paid to coordination with the Special Rapporteur to elaborate this section. It is not an overstatement to say that the lives of millions of indigenous peoples can tum on an interpretation of international law and Policy.

EMRIP's follow up report also contains Advice No. 4. This too can be invaluable for indigenous peoples. we have some concerns about the language used- or omitted. In particular, paragraphs 6 and 7 under item B. appear to limit the advice to situations where indigenous people currently own, use, develop and control land, territories and resources under their own indigenous laws near or on which extractive industries take place or are proposed to take place. This advice would limit the rights contained in Articles 25 and 26 of the UNDRIP. Article 25 provides that indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, teritories, waters, and coastal seas and other resources. Article 26 paragraph I uses the same language. Let us explain why this concerns us.

In an area known as the Grants Mineral Belt, in the Southwestern United States, our footprints are everywhere as our people have traditionally owned or otherwise occupied these lands.

Archaeological sites and many unmarked sacred sites dot the entire area proposed for mineral development. Yesterday, Mr. Chair, in your opening comments, you mentioned situations in which "A company with a footprint in indigenous areas should develop a policy to address how it engages with indigenous peoples." However in our part of the world, and we are not unique in this regard as indigenous peoples, it is our footprints that the mineral companies must be cognizant of. However, due to a history of land theft and displacement, our people have not had access to these lands for years. Advice 3.6 in the follow up paper, as drafted, would limit protection to lands which indigenous peoples currently use, which is not the case for indigenous peoples in this part of the world.

Second, Mr. Chair, the advice given on the Conclusion, paragraph 3, which addresses "practical advice for indigenous peoples" contains language that is limited to the choice to "develop" or extract their resources. The paragraph suggests that indigenous peoples can "play a positive role in sustainable development by asserting their human rights relating to extractive industries." We maintain that this report is not complete without a statement regarding indigenous peoples' assertion of their right not to extract or develop resources if they so choose. Indeed, a good practice in many cases would be to respect the right of an indigenous people to protect lands to which they have a centuries old relationship and not undertake extractive activity.

Time permits us to highlight only these two concerns, but we urge this Mechanism to take the time needed to finalize a report that is consistent with the UNDRIP and other international law, and helps to positively implement the Declaration. Again we wish to underscore the complementarity of the Expert Mechanism, the Special Rapporteur and the Permanent Forum as the United Nations mechanisms mandated to deal specifically with indigenous peoples issues.

We believe that their continued collaboration and coordination in promoting the rights of indigenous peoples will strengthen these UN institutions and benefit all indigenous peoples. In the Grants Mineral Belt, numerous mining companies are seeking to reopen uranium mines, many of which were left unreclaimed in the early 1980's. Many of our peoples continue to suffer from what are known as legacy issues: environmental devastation, including contaminated water and thousands of acres of land that is toxic because hundreds of mines are not reclaimed, as well as illnesses related to radon contamination of former miners and their families. Also impacted are many, many sacred sites that are essential tof the very identity ofour peoples. In their efforts to protect their lands, water and people, a Navajo community has filed a petition before the Inter American Commission on Human Rights. Additionally Acoma Pueblo and Laguna Pueblo are engaged in litigation with uranium companies over protection for Mt Taylor.

We can and will continue to engage in these struggles using the current law, but without recognition of our fundamental human rights, we will continue to experience systemic discrimination.

In closing, we urge this Mechanism to address these issues in the follow up report and take the time necessary to finalize a report that will be useful to indigenous peoples who oppose extraction of resources as well as those who opt for resource development'.

We wish you well in your work on behalf of indigenous peoples.