CASOS EXAMINADOS POR EL RELATOR ESPECIAL (AGOSTO 2010 – JULIO 2011)
A/HRC/18/35/Add.1, 22 Agosto 2011
Ethiopia: Situation of the Gilgel Gibe III hydroelectric project on the Omo River
1. In a communication of 18 February 2011, the Special Rapporteur on the rights of indigenous peoples, James Anaya, called the attention of the Government of Ethiopia to information received regarding the construction of the Gibe III hydroelectric project on the Omo River in Ethiopia. The full text of this communication can be accessed from the electronic version of the joint communications report (A/HRC/18/51), which is available on the web site of the Human Rights Council. This communication followed a previous letter sent by the Special Rapporteur on 10 June 2009, which was reflected his 2009 annual report to the Human Rights Council (A/HRC/12/34/Add.1, paras. 113-122). He regrets that, at the time of finalization of this report, there is no record of a response by the Government of Ethiopia in the files of the Office of the High Commissioner for Human Rights to either his communication of 18 February 2011 or his previous communication of 10 June 2009. In the absence of a response by the Government of Ethiopia to his communications about the Gibe III hydroelectric project within 60 days as requested, the Special Rapporteur developed the observations below, which include an evaluation of the situation within the framework of relevant international standards. These observations were transmitted to the Government on 13 July 2011.
2. According to the information received, Ethiopia is constructing the Gilgel Gibe III hydroelectric dam, which, once completed, will block the southwestern part of the Omo River on the border of Ethiopia and Kenya, creating a 150-km long reservoir. The Lower Omo River Valley is inhabited by a number of indigenous peoples, including the Dasenech, Karo, Hamer, Mursi, Murle, Mugugi and Nyangatom, who have developed complex land and resource use practices adapted to the harsh conditions of the region. These peoples rely on the Omo River for grazing and watering livestock, which produce blood, milk, and meat for subsistence as well as income.
3. Sources indicate that the natural flooding cycle of the river creates the conditions necessary for flood retreat cultivation, an essential agricultural practice in the semi-arid climate of the region. According to the information received, the Gibe III dam will eliminate this natural flooding cycle and reduce the flow of the river, threatening these traditional practices and means of subsistence, and potentially endangering local food security. Further, it is alleged that competition over increasingly scarce land and resources in Ethiopia could also exacerbate inter-ethnic conflict. The Gibe III project will also potentially affect the water and salinity levels of Lake Turkana, the only large body of water in Kenya’s arid northwestern region. Lake Turkana is the primary water source for six indigenous ethnic groups in Kenya – the Turkana, Elmolo, Samburu, Gabbra, Rendille and Daasanach – comprising some 300,000 people.
4. Reportedly, although activities related to the construction of the Gibe III project began in 2006, the Government did not initiate assessment of the environmental and social impacts of the projects until 2008. There were also questions raised about the accuracy and impartiality of the Environmental and Social Impact Assessment in evaluating the impacts of the Gibe III dam. Finally, it is alleged that consultations about the dam were conducted by very few people, as compared to the total number of people affected, and did not take place until after construction of the Gibe III project had begun.
Observations of the Special Rapporteur
5. Although the Special Rapporteur never received a response from the Government of Ethiopia to his letters of 18 February 2011 and 10 June 2009, many of the concerns he raised in those letters have been directly addressed by the Government of Ethiopia in various public documents issued over the past months, including in the Government’s website about the project and in the report developed by the Ethiopian Electric Power Corporation entitled “Reaction to Issues Raised by ‘South China Morning Post’ concerning the Gibe III HEP”. The principle issues raised by the Special Rapporteur that are addressed in these public documents relate to: (1) the effect of the Gibe III dam on the traditional flooding cycles of the Omo River, and consequently on the livelihoods of the indigenous peoples that depend on the river; (2) the effect of the Gibe III project on Lake Turkana and indigenous groups that depend on that lake, in Kenya; and (3) the adequacy of consultations carried out with affected indigenous peoples.
Social and Environmental Effects
6. With respect to the effects of the Gibe III dam on the traditional flood retreat cultivation and other traditional practices of affected indigenous peoples, the Special Rapporteur notes that the Government has, in fact, recognized that the dam will replace the Omo River’s national flooding cycle, likely affecting some 100,000 people who practice traditional flood recession agriculture during a portion of the year. However, according to available information from the Ethiopian Electric Power Corporation, measures are being taken to create an artificial flooding system that simulates the natural flooding process of the Omo River, in order to ensure that the traditional flood retreat agriculture practices of indigenous peoples along the Omo River can continue, and to mitigate any adverse impacts in this regard. In fact, the Government of Ethiopia indicated that the hydroelectric project will actually bring positive benefits, since it will help protect against dangerous flooding of the Omo River and will involve small-scale irrigation projects that provide water resources to the region more consistently than under the current system. The Government also pointed out that this availability of water, as well as planned fish farming and animal husbandry initiatives contemplated alongside the project, will help stabilize any inter-ethnic conflicts in the region.
7. With respect to the impact of the Gibe III hydroelectric project on Lake Turkana in Kenya, the public documents issued by the Government assured that the results of studies carried out as part of the Government’s environmental impact assessment, as well as independent assessments, have concluded that water levels in Lake Turkana will remain more or less consistent with their present state following construction of the hydroelectric project, with a maximum estimated fluctuation of only 0.6 meters, which will not result in changes to the drinkability of the water. In fact, the Government concluded that the Gibe III project and its artificial flooding initiatives will actually have a “positive impact on controlling the fluctuation of the lake water”, especially during the dry season. The information provided by the Government also emphasized that the communities around Lake Turkana have expressed support for Gibe III project.
8. The Special Rapporteur cannot help but notice that there appears to be a major divergence of opinion regarding the potential environmental and social impacts of the Gibe III project. On the one hand, the Government hails the benefits of the project and assures that it is taking measures to address in full any potential adverse impacts. On the other hand, sources of information with whom the Special Rapporteur has been in contact predict catastrophic consequences of the hydroelectric project on the environment and local communities, and indicate that the Government has not put in place adequate mitigation measures to offset these consequences.
9. Given the limitations of the mandate of the Special Rapporteur, he is unable to make any in-depth technical or scientific conclusions about the impacts of the Gibe III project. However, he will continue to review all available sources of information about the Gibe III project and may make additional observations in the future, taking into consideration this information. In addition, in light of the divergent views on this project, the Special Rapporteur encourages the Government to make all efforts to make public all studies on the Gibe III project and to continue to provide constant, impartial information about the hydroelectric project and its impacts to affected indigenous peoples and other stakeholders. Furthermore, the Government and in particular the Ethiopian Electric Power Corporation, should continue to identify and implement alternate or additional mitigation and compensation measures, and make any alterations to the project design, should these be deemed necessary.
Issues related to consultation
10. Finally, with respect to consultations carried out, the Government has stated that, from 2006-2008, it carried out a public consultation process, in accordance, says the Government, with the Ethiopian Constitution, which states that “People have the right to full consultation and to the expression of views in the planning and implementation of environmental policies and projects that affect them directly” (article 92.3). It bears mention that the information provided in the public documents of the Ethiopian Electric Power Corporation coincides with the information the Special Rapporteur received from other sources regarding the approximate number of people consulted about the Gibe III project. In particular, both the Government and other sources of information noted that only around 2,000 people participated in the public consultation process, even though some 100,000 people may be affected by the Gibe III project within Ethiopia. The Government has expressed that those consulted were “satisfied with the mitigation measures and the proposed plans of the project” and believe that it “contributes to the attainment of the local, regional and national development goals”.
11. It is not clear from the Government’s information whether these consultations were in fact carried out in accordance with the traditional decision-making structures of the affected indigenous peoples, as required by article 19 of the United Nations Declaration on the Rights of Indigenous Peoples, which states that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” However, the Special Rapporteur received information from other sources that alleged, under the traditional systems of the groups living along the Omo River, decisions are made in meetings involving the entire community, which indicates that consultations with only 2,000 out of 100,000 affected peoples would not conform to traditional decision-making procedures, as required by international standards. In this connection, it may be necessary for the Government to carry out additional consultations with a greater number of affected indigenous peoples in order to ensure that they have had the opportunity to consider the project and present their views in response, in accordance with their own representative institutions.
12. In addition, the Government’s information does not provide a clear picture of the information that was provided to indigenous peoples in this public consultation process. In this connection, the Special Rapporteur would be grateful if the Government of Ethiopia could inform him of the content of information conveyed to the affected indigenous peoples during the consultations. The Special Rapporteur does note, however, that the Government has stated that the consultations were designed to “inform, and contribute to identifying potential impacts of the project, either negative or positive or both, and prioritize the remedial measures for the identified impacts; include the attitudes of the community and officials who will be affected by the project so that their views and proposals are mainstreamed to formulate mitigation and benefit enhancement measures; [and] increase public awareness and understanding of the project, and ensure its acceptance”. While some aspects of these stated goals of the consultations coincide with international standards, the Special Rapporteur expresses his concern that the consultations were carried out with the goal to “ensure [the project’s] acceptance”, which indicates that the consultations were carried out with a predetermined outcome. Under relevant international standards, consultations should involve a genuine opportunity for indigenous peoples to present their views and to influence decision-making, and the option of not proceeding with the proposed project should not be foreclosed during these consultations.
13. The Special Rapporteur understands that the Government of Ethiopia has planned future public consultations on the Gibe III projects. In this connection, under article 32 of the United Nations Declaration on the Rights of Indigenous Peoples governments must “consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources”. In the present case, given the magnitude of the Gibe III dam project and its potential effects on indigenous peoples in surrounding areas, the Special Rapporteur notes that there is a need for concerted efforts to carry out adequate consultations with affected groups and to endeavor to reach consensus with them on all aspects of the project affecting them.
 The Special Rapporteur also brought aspects of this situation to the attention of the Governments of China and Kenya, by separate communications of 18 February 2011. The full text of these letters can be accessed from the electronic version of the joint communications report (A/HRC/18/51), which is available on the web site of the Human Rights Council. The Special Rapporteur addressed concerns to Kenya about the alleged impacts on several indigenous peoples in Kenya resulting from anticipated changes in the flow into Kenya of the Omo River as a result of the Gibe III dam. Concerns were addressed to China because, according to information received, the construction of the dam is being financed by a bank owned by the Government of China. China did respond to the Special Rapporteur’s communication in a note dated 15 July 2011, the full text of which can be accessed from the electronic version of the joint communications report (A/HRC/18/51), which is available on the web site of the Human Rights Council. The observations below are directed only to the Government of Ethiopia, although in the future the Special Rapporteur may develop observations directed at the Governments of China or Kenya, or otherwise follow up with those Governments on this case.