Where now for Indigenous Peoples and the extractive industries?

Published by MAC on 2012-12-27
Source: UN Working Group on Human Rights and Transnational Corporations

Statements from the UN Business and Human Rights Forum

Statement from the Indigenous Peoples and Extractive Industries Network (IPEIN) to the Forum on Business and Human Rights

For session: "For Business Affecting Indigenous Peoples - what are the critical implementation challenges for the GPs in the context of indigenous peoples?"

5 December 2012

We welcome - and are grateful to - the Forum for this opportunity to express some key points with regard to the opportunities provided by the Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises. Indigenous Network members have previously recommended that indigenous peoples and the extractive industries is an area the Working Group should focus on, so we are grateful to see this agenda item addressing the human rights challenges for indigenous peoples.

This is a statement on behalf of the Indigenous Peoples and Extractive Industries Network. This global Network was formed in 2009 at a global conference in Manila to address the challenges faced by indigenous peoples in response to the extractive industries.1

As it is currently possible for only a small number of indigenous representatives from the Network to be present at the Forum, we wanted to jointly affirm certain points and make some recommendations. The Network does not claim to represent all affected indigenous peoples, but as part of the movement of those among the most gravely affected by the activities of transnational corporations we believe our collective voice should be heard.

The founding statement of the Network is the Manila Declaration,2 which works within the framework of the UN Declaration on the Rights of Indigenous Peoples to assert that Indigenous Peoples are rights holders.

The Manila Declaration makes a number of calls on different actors with regard to the human rights impacts of extractive corporations. In particular, it called for Professor Ruggie, and therefore by implication the Working Group, to "actively engage with impacted indigenous communities through workshops addressing indigenous peoples' rights and the extractive industry, and ... promote the enactment of legislation in home states of transnational corporations that provides for extraterritorial jurisdiction in relation to their activities".

The severity of the problems faced by indigenous peoples with regard to the extractive industries has already been noted in past submissions to the Working Group and has been recorded by Professor Ruggie in his work.3

The existence of the UN Working Group is a potential advance. But as of this time for indigenous and other communities directly affected by extractive industry operations the levels of abuse and their seriousness continue unabated. Estimates put the future production of specific minerals that will be sourced from indigenous lands at least 50%.

Also there has been a recent increase in demand for minerals and the spread of "unconventional" oil & gas (such as tar sands and hydraulic fracturing) which has seen this trend accelerating. We now see this as a potential new wave of land grabbing by the extractive industries.4

We believe it is vital that all discussions on principles and frameworks be grounded on the current realities for affected communities. We strongly encourage the Working Group to consider providing mechanisms through which these rights abuses could be heard and effectively addressed. Therefore we would like to draw attention to the following examples:-

In the Philippines violence, including the prominent presence of military and paramilitary forces serving the interests of corporations, is still the norm of mine development. Most recently there has been 'a wave of killings' associated with corporate mining on indigenous peoples' lands on the island of Mindanao.

These include the murder this year of Jordan Manda, the 11 year old son of an activist Subanon leader who was killed in an attempt on both father and son. Also the assassination of Juvy Capion with two of her children, Juvy was the wife of a B'laan tribal leader who is opposing the entry of Xstrata's Tampakan mining project on his land.5

The violence meted out in Guatemala to peaceful indigenous Mayan protesters by San Rafael Mining's company security in September this year. The mine is being forced through despite community consultations overwhelmingly rejecting it.6

The acts of arson and rape perpetrated by security forces working for the Porgera mine controlled by Barrick Gold of Canada.7

The repeated use of deadly force by the Peruvian military and company security against protestors resisting unwanted extractive industry operations. These include violence at Newmont's mine in Cajamarca, Xstrata's Espinar mine and oil exploration at Bagua in the Amazon.8

In the southwestern United States and in the Dakotas, indigenous peoples are struggling with a new wave of uranium mining, which involves destruction of sacred sites and areas rich with cultural resources. This is happening while uranium companies have not fully addressed uranium legacy issues including ill health and high cancer rates and grave impacts to their water, and the environment.

The Network will launch a publication at this meeting, Pitfalls and Pipelines,9 which covers various case studies in greater depth.

In response to the seriousness and urgency of the current situation a number of UN Mechanisms have responded to address the issue, including the initiatives by the UN Special Rapporteur on the Rights of Indigenous Peoples and the UN Expert Mechanism on Indigenous Issues.10

However, such welcome initiatives have so far failed to stem the flow of abuses and there is much more that should be done, especially by the Working Group, in cooperation with other parts of the UN.

We re-affirm that the implementation of free, prior and informed consent (FPIC) process is the minimum standard that we will accept as indigenous peoples dealing with the extractive industries. We recognise that extractive industry companies are, thanks to various pressures being brought to bear - especially in response to the UN Declaration on the Rights of Indigenous Peoples - making advances in accepting FPIC as an industry standard. This is to be applauded, but the real battle is now shifting to defining what FPIC is and how it is made operational.

We fear that the industry, and its financiers, will move ahead with their own self-serving definitions and unilaterally formatted process. This will be at the expense of recognition and respect of the rights and wishes of the most affected peoples, as well as the necessary development of independent monitoring and reporting.

Resources should be targeted at ensuring there is a genuine, community-based input to the creation of general company or industry policies and guidelines, which would truly respect the rights of indigenous peoples.

Resources need to be directed at ensuring that communities are supported in better documenting their own decision-making processes, so that they cannot be undermined. We are aware that certain communities have developed their own protocols with regard to implementing FPIC, and more resources and the attention of the Working Group should be orientated towards sharing these experiences as indigenous 'best practice'.

Finally resources should be directed towards supporting communities with independent advice with regard to technical issues so that the 'informed' part of FPIC can truly work.

We also remind that the Manila Declaration calls for a review of all on-going projects that are approved without respect for indigenous FPIC and indigenous peoples' right to self-determination.

As a basis for meaningful redress for abuses, we believe that all corporations should operate at least to minimum internationally recognised human rights standards rather than corporate self-defined programmes.

Therefore we have the following recommendations:-

• The Working Group take urgent action, in cooperation with other UN agencies, to better document, analyse and highlight the human rights abuses by military and paramilitary forces in imposing extractive industry projects upon indigenous communities. This could lead to joint protocols to ensure that extractive industry projects do not create or exacerbate armed conflict, or manufacture consent through terror. This could include an agreement - also involving financiers - on principles that would be the adequate basis for 'No Go Zones' because of conflict.
• That company and financiers' due diligence, where indigenous peoples are involved, should include an indigenous-led FPIC process at the earliest possible stage of a project.
• For FPIC to be truly realised more resources need to be set aside to ensure that there is genuine interaction from indigenous representatives in the formulation of policy change and monitoring at the international, national and corporate level. Resources are also needed in support of community participation in, documentation and the provision of genuinely independent information on extractive processes and human rights and environmental impact assessments in project level decisions.
• The Network has been involved in setting up an independent project addressing the mining industry's implementation of FPIC. We would invite and welcome the participation of the Working Group in dialogues, particularly in on-going multi-stakeholder research which is scheduled for launch in April 2013.
• On the third pillar issue of redress, we would like to draw attention to the recommendations made to different States by the UN Committee on the Elimination of Racial Discrimination.11 These recommendations call for those home states of multinational corporations to take actions to hold transnational corporations incorporated in their territory accountable for any adverse impacts on the rights of indigenous peoples and other ethnic groups. We support this call and urge cooperation between UN structures to better realise such advances.
• Recognising that there are still urgent issues of redress that have not yet been sufficiently faced, we believe that the Working Group should adopt a working procedure - including in the Forum - that better facilitates the inclusion of reports and testimony from those whose human rights are directly affected by corporate activities, as a priority over those from corporations, NGOs and academic experts.

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Footnotes

1. This meeting was organised alongside an UN Permanent Forum on Indigenous Issues Expert Workshop on Indigenous Peoples' Rights, Accountability and the Extractive Industries, 27-29 March 2009

2. http://www.minesandcommunities.org//article.php?a=9147

3. Professor Ruggie noted that among submissions he received "the extractive sector - oil, gas, and mining - utterly dominates this sample of reported abuses"; John Ruggie's Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, U.N. Doc. E/CN.4/2006/97 (2006), Para 25; A previous joint briefing sheet to last year's working group meeting notes that "It is estimated that as much as 50% of the gold produced between 1995 and 2015, and up to 70% of copper production by 2020, will take place on the territories of Indigenous Peoples.

In 2009, the European Commission noted that approximately 70% of the uranium used in nuclear reactors was sourced from the homelands of Indigenous Peoples worldwide."

4. Figures quoted from introduction of A. Whitmore, Pitfalls and Pipelines, IWGIA, Tebtebba, PIPLinks, 2012. The land grab quote is taken from P. Sibaud, Opening Pandora's Box: The New Wave of Land Grabbing by the Extractive Industries, 2012, London: Gaia Foundation.

5. See: Asian NGO brings Subanen tribe case to UN, 28 November 2012, http://www.piplinks.org/asian-ngo-brings-subanen-tribe-case-un; "Impunity name of the game" in mining-affected indigenous communities, 23 November 2012, http://www.piplinks.org/%E2%80%9Cimpunity-name-game%E2%80%9D-mining-affected-indigenous-communities

6. See: Guatemala: Community statement on recent violence at San Rafael Las Flores, 19 September 2012, http://www.minesandcommunities.org/article.php?a=11919

7. See: Barrick accused of gang rapes at Porgera, Papua New Guinea." 20 November 2009, http://www.minesandcommunities.org/article.php?a=9696; Human Rights Watch, "Gold's Deadly Dividend." 1 February 2011, http://www.hrw.org/en/reports/2011/02/01/gold-s-costly-dividend

8. Peru: Social opposition to mining intensified in 2012; 12 December 2012, http://www.minesandcommunities.org//article.php?a=12051

9. http://www.piplinks.org/pitfalls-and-pipelines%3A-indigenous-peoples-and-extractive-industries

10. Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, 6 July 2012 A/HRC/21/47; EMRIP Report to UN HRC Follow-up report on indigenous peoples and the right to participate in decision-making, with a focus on extractive industries, 30 April 2012, A/HRC/EMRIP/2012/2

11. The CERD has made recommendations with regard to the extraterritorial responsibilities of business enterprises with regard to Canada (CERD Concluding Observations 2006), CERD/C/CAN/CO/18 para ‘17. The Committee notes with concern the reports of adverse effects of economic activities connected with the exploitation of natural resources in countries outside Canada by transnational corporations registered in Canada on the right to land, health, living environment and the way of life of indigenous peoples living in these regions (arts 2. 1(d)d), 4 (a) and 5(e)).

In light of article 2.1 (d) and article 4 (a) and (b) of the Convention and of its general recommendation no. 23 (1997) on the rights of indigenous peoples, the Committee encourages the State party to take appropriate legislative or administrative measures to prevent acts of transnational corporations registered in Canada which negatively impact on the enjoyment of rights of indigenous peoples in territories outside Canada. In particular, the Committee recommends that the State party explore ways to hold transnational corporations registered in Canada accountable.

The Committee requests the State party to include in its next periodic report information on the effects of activities of transnational corporations registered in Canada on indigenous peoples abroad and on any measures taken in this regard.' A similar recommendation was made to the U.S. CERD/C/USA/CO/6 para 30; (CERD Concluding Observations 2007), Norway CERD/C/NOR/CO/19-20 para 17 (CERD Concluding Observations 2011) and UK CERD/C/GBR/CO/18-20 para 29 (CERD Concluding Observations 2011)

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Statement by Professor James Anaya at Forum on Business and Human Rights 2012

5 December 2012

http://unsr.jamesanaya.org/statements/forum-on-business-and-human-rights-2012-statement-by-professor-james-anaya

Statement by Professor James Anaya, Special Rapporteur on the rights of indigenous peoples

Forum on Business and Human Rights

5 December 2012

Geneva

Fellow panelists,

Participants and representatives of Members States,

Friends and colleagues,

It is a great pleasure to be able to participate this inaugural Forum of the Human Rights Council on business and human rights. I am grateful for this opportunity to share some of my thoughts on the implementation challenges for the Guiding Principles on business and human rights in the context of indigenous peoples. First, however, I would like to add my acknowledgement of the monumental work of Professor John Ruggie and others in launching the Guiding Principles.

I join in celebrating that the development of the Guiding Principles, their endorsement by the Council, the establishment and work thus far of the working group to advance their implementation, and this Forum open new and important possibilities for advancing human rights within the many contexts reached by business. Of course as many at the Forum have already remarked, and indeed the reason we are gathered here is that, there are many challenges ahead, and in many ways the work is just beginning.

In my work as Special Rapporteur on the rights of indigenous peoples, I have been confronted by numerous instances of alleged human rights violations in connection with business activities, especially in the context of extractive industries that operate on or near indigenous territories. Thus I have dedicated significant attention to issues that are at the intersection of business and the human rights of indigenous peoples.

My 2010 report to the Human Rights Council focused on the responsibilities of corporations in relation to indigenous peoples. And my last two reports to the Council are part of an ongoing study on the issues faced by indigenous peoples that arise from extractive industries. Excerpts from these reports are compiled in a conference room paper and available on the Forum website.

In my examination of issues related to business and human rights, I have observed a high level of acceptance by States and business enterprises of the Guiding Principles and their "protect, respect and remedy" framework. However, I have noted significant ambiguity about the extent to or manner in which the Guiding Principles relate to the standards of human rights that specifically concern indigenous peoples.

I have observed a pervasive lack of understanding, much less conviction, that the human rights that states are to protect in the context of business activities, and that companies are to respect, include the specific rights of indigenous peoples, in particular those that are affirmed in the United Nations Declaration on the Rights of Indigenous Peoples.

I believe it should no longer be questioned that the State's protective role entails ensuring a regulatory framework that fully recognizes indigenous peoples' rights over lands and natural resources and other rights that may be affected by business activities; that mandates respect for those rights both in all relevant State administrative decision-making and in corporate behaviour; and that provides effective sanctions and remedies when those rights are infringed either by Government or corporate actors.

Such a regulatory framework requires legislation or regulations that incorporate international standards of indigenous rights and that make them operational through the various components of State administration that govern land tenure, mining, oil, gas and other natural resource extraction or development. By and large, however, regulatory frameworks of this kind are still lacking in States across the globe.

For their part, as affirmed by the Guiding Principles, business enterprises have an independent responsibility to respect human rights. And as I have detailed in my most recent report to the Council, and as indicated in the comment to article 12 of the Guiding Principles, the rights that corporations should respect include the rights that are specific to indigenous peoples.

These rights are articulated not just in the Declaration on the Rights of Indigenous Peoples, but also in ILO Convention No. 169, provisions of various other treaties, including the Convention on Biological Diversity, and several authoritative international decisions and statements interpreting provisions of core human rights treaties.

The Guiding Principles clarify that the corporate responsibility to respect human rights "exists independently of States' abilities and/or willingness to fulfil their own human rights obligations". This independence of responsibility notwithstanding, I have learned of numerous instances in which business enterprises engaged in extractive industries do not go further than compliance with domestic laws or regulations, regardless of the ineffectiveness of those laws and regulations for the protection of indigenous rights.

Corporate attitudes that regard compliance with domestic laws or regulation as sufficient should give way to understanding that fulfilment of the responsibility to respect human rights often entails due diligence beyond compliance with domestic law.

My examination of the issue confirms that there is need for change in the current state of affairs if indigenous rights standards are to have a meaningful effect on State and corporate policies and action as they relate to indigenous peoples. An initial step towards such change would be greater common understanding among indigenous peoples, governmental actors, businesses enterprises, and others about the content of indigenous peoples rights and the means of their implementation.

Without such understanding, the application of indigenous rights standards will continue to be contested or ignored, and indigenous peoples will continue to be vulnerable to serious abuses of their individual and collective human rights.

I commend the work of the Council's Expert Mechanism on the Rights of Indigenous peoples to advance understanding of indigenous rights in the context of business activities, including in relation to the Guiding Principles. I believe we will hear more about this work from the Chair of the Expert Mechanism, Chief Willie Littlechild, at the plenary of the Forum later today.

Also towards this end, I have carried out a series of meetings with Governments, indigenous peoples, and representatives of business enterprises, in order to listen carefully and draw extensively on views and experiences that all stakeholders share with me on this issue. I would like to warmly thank the indigenous organizations, NGOs, business enterprises, and Government and parliamentary actors that have facilitated or participated in these meetings.

As a complement to these meetings, in the coming weeks I will launch an online consultation forum organized around specific questions or issues related to extractive industries. Through this web based forum, indigenous peoples and others will have the opportunity to submit information on their experiences with extractive industries, as well as to respond to specific questions.

I will also continue to gather and analyze empirical information on specific examples of natural resource extraction activities affecting indigenous peoples during my ongoing work examining cases of alleged human rights violations and in carrying out country visits.

I hope that this work contributes to providing much-needed orientation on the practical implementation of the Guiding Principles. Especially in the context of extractive industries, I believe that new and different models and business practices need to be examined, models that are more conducive to indigenous peoples' self-determination and their right to pursue their own priorities of development.

Such models could include genuine partnership arrangements between indigenous peoples and corporations, or even models in which indigenous peoples develop their own extractive business enterprises, as many have already done. I intend to explore these possibilities further in my final report to the Human Rights Council.

I would like to conclude by expressing my gratitude for the opportunity to address those present today, and I look forward to our discussion.

Thank you all for your kind attention.