James Anaya

Ua

 

 

Report A/HRC/21/47, 2012 Print

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Observations relevant to contributing to shared understanding about relevant international standards and their application:

1. The Need for an approach that comprehensively takes account of the rights that may be affected by extractive operations
2. Duty of States to protect and the responsibility of corporations to respect the human rights of indigenous peoples in relation to extractive activities.
3. Consultation and consent in relation to the State duty to protect and the corporate responsibility to respect.
4. Towards new models of development for resource extraction.

Report on progress in the study of the rights of indigenous peoples in relation to extractive industries.

 

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A/HRC/21/47, 6 July 2012


 

CONTENTS

A.Activities related to the study

35. Over the past year, the Special Rapporteur engaged in consultations with representatives of indigenous peoples, Governments and transnational corporations to obtain their perspectives on the various dimensions of the issue of extractive and other major development operations affecting indigenous peoples. Concerns about extractive and other resource development industries were repeatedly raised by indigenous peoples in the context of the Special Rapporteur's official visits to Argentina, Costa Rica and the United States. The Special Rapporteur had the occasion to examine cases of mining, the extraction of hydrocarbon resources and hydroelectric power development, and to discuss those cases with both Government agents and the representatives of affected indigenous communities.

36. In addition, the Special Rapporteur exchanged information on cases of extractive industries with representatives of indigenous peoples, Governments and transnational corporations in the context of the communications procedure. Also relevant to his studies of extractive industries were his discussions with representatives of indigenous peoples and Government actors in Brazil and Peru in the context of developing laws or regulations for consultations procedures.

37. The Special Rapporteur further engaged with relevant actors regarding extractive industries through his participation in conferences and meetings in Norway, Spain, Sweden and the United Kingdom of Great Britain and Northern Ireland. In October 2011, he participated in a conference with the theme "A dangerous business: the human cost of advocating against environmental degradation and land rights violations", organized by Peace Brigades International and other non-governmental organizations. The conference, which took place in London, brought together representatives of civil society, the Government of the United Kingdom and transnational corporations based in the United Kingdom to discuss the impacts of extractive industries on the human rights of indigenous peoples and other local communities and the challenges faced by human rights defenders in that context. The Special Rapporteur gave a keynote speech in which he emphasized the need to build the negotiating capacity of indigenous peoples in order for them to be able to overcome power disparities and effectively engage in consultation procedures involving proposed extractive activities on or near their territories. While in London, the Special Rapporteur held informal meetings with representatives of the Government of the United Kingdom, Members of Parliament and representatives of civil society organizations to gather information and views on official policies and legislation concerning the impact of transnational companies based in the United Kingdom on indigenous peoples around the world.

38. In February 2012, the Special Rapporteur also participated in and gave a keynote speech at a conference on indigenous peoples, corporations and the environment, which was held in Kirkenes, Norway, and organized by the Working Group of Indigenous Peoples of the Barents Euro-Arctic Council and the Barents Regional Council, a consultative body comprising representatives of the Nenets, Sami and Vepsian peoples within the Barents region in the northern parts of Finland, Norway and the Russian Federation. The conference featured presentations by representatives of indigenous peoples, Governments and industry about the implications for indigenous peoples of strategies and proposals for new natural resources extractive activities in the Barents region. In his keynote speech, the Special Rapporteur emphasized that there was a need to implement a new development model in which indigenous peoples would have the opportunity to be genuine partners, in particular in the context of natural resource extractive activities taking place in or near their traditional territories.

39. In April 2012, the Special Rapporteur visited Madrid to meet representatives of the Government of Spain, members of the Congress of Deputies, business enterprises and non¬governmental organizations in relation to the impact of transnational companies based in Spain on the rights of indigenous peoples around the world, in particular in Latin America where such companies have a significant presence. The visit, which was facilitated by the Government of Spain and Almáciga, a non-governmental organization, allowed the Special Rapporteur to gather information and views on programmes and policies of the Government and business enterprises in relation to indigenous peoples' human rights.

40. The Special Rapporteur was in Jokkmokk, Sweden, in June 2012, where he participated in a conference on mining and other natural resource extraction in Sápmi, the Sami territory that traverses the northern parts of Finland, Norway, the Russian Federation and Sweden. The conference, which was organized by the National Association of Swedish Sami, afforded him an opportunity to listen to the concerns of Sami representatives, in particular with regard to the impacts of extractive industries on Sami reindeer herding, and to hear the perspectives of Government and industry representatives. In his presentation, the Special Rapporteur emphasized that there was a need for effective domestic legislation, along with corporate social responsibility policies, to protect indigenous peoples' rights in the context of proposed or existing extractive activities.

41. At the time of writing the present report, the Special Rapporteur was finalizing plans to engage in consultations in Australia with representatives of indigenous peoples, federal and state Governments and companies based in Australia about the activities of those companies, both in Australia and abroad. These consultations, which are scheduled to be held in August 2012, are being planned by the National Congress of Australia's First Peoples, in cooperation with representatives of companies.

B. Cooperation with the Expert Mechanism

42. After the Special Rapporteur finalized his previous report to the Human Rights Council, in which he stated his intention to devote special attention to the issue of extractive industries during the remainder of his mandate, with a view towards possibly developing guidelines on the subject, at its fourth session, in July 2011, the Expert Mechanism on the Rights of Indigenous Peoples announced that it would also focus on the issue as part of its follow-up to its thematic study on the right of indigenous peoples to participate in decisions affecting them. The Special Rapporteur met the Expert Mechanism at its fourth session to discuss its anticipated thematic work on extractive industries, and later discussed that work with members of the Expert Mechanism as it proceeded.

43. The Expert Mechanism has recently proposed to the Special Rapporteur to jointly develop guidelines to implement the rights of indigenous peoples in the context of extractive industries, and the Special Rapporteur will be discussing this proposal with the Expert Mechanism at its fifth session, in July 2012.

44. The Special Rapporteur intends to continue to examine the issue of extractive industries during the remainder of his mandate, in coordination with the Expert Mechanism. He anticipates including, in a subsequent report to the Council, elements of good practices on the basis of his examination of experiences around the world. Depending upon the further work of the Expert Mechanism on the issue, he may also develop or contribute to the development of relevant guidelines, as suggested in his previous report to the Council.

C. Observations relevant to contributing to shared understanding about relevant international standards and their application

45. In anticipation of his further work on the issue of extractive industries in coordination with the Expert Mechanism, the Special Rapporteur considers it useful to provide observations that draw on his engagement with relevant actors in this regard. As indicated in his previous report to the Council, a significant barrier to the effective protection of indigenous peoples' rights in the context of natural resource extraction and development affecting them is the existence of conflicting points of view about the practical implications of international standards affirming the rights of these peoples, and about the kind of measures required to fulfil the responsibilities of States, corporate actors and indigenous peoples themselves (A/HRC/18/35, para. 85). Such conflicting points of view have continued to be apparent as the Special Rapporteur has continued his examination of indigenous peoples' concerns relating to extractive industries.

46. In the remainder of the present report, the Special Rapporteur provides observations aimed at contributing to a shared understanding about the relevant standards and their practical implications. The effort is to help to forge a conceptual approach for discerning international standards relating to resource extraction and development projects that affect indigenous peoples, an approach aimed at practical outcomes that fully respect the rights of indigenous peoples. The following observations build upon the Special Rapporteur's previous examinations of the duty of States to consult indigenous peoples on decisions affecting them (see A/HRC/12/34) and the issue of corporate responsibility to respect human rights (see A/HRC/15/37). These observations also take into account and seek to complement the recent report of the Expert Mechanism (A/HRC/EMRIP/2011/2).

1. Need for an approach that comprehensively takes account of the rights that may be affected by extractive operations

47. A common point of departure for examining the issue of extractive industries affecting indigenous peoples is discussion about the meaning of the principles of consultation and free, prior and informed consent that are articulated in international instruments and the jurisprudence of international bodies. This discussion has become highly contentious, with conflicting points of view about the scope of the duty of States to consult indigenous peoples and about the need to obtain their consent to extractive projects that may affect them.

48. The Special Rapporteur is of the view that the pre-eminent focus on consultation and consent is blurring understanding about the relevant human rights framework by which to discern the conditions under which extractive industries may legitimately operate within or near indigenous territories. It is simply misguided to tend to reduce examination of the rights of indigenous peoples in the context of resource development projects to examination of the contours of a right to be consulted or a right to free, prior and informed consent. To be sure, understanding the contours of the principles of consultation and consent is of critical importance. Arriving at such understanding cannot be adequately achieved by framing the discussion within these principles alone, however.

49. A better approach appreciates, first, that neither consultation nor consent is an end in itself, nor are consultation and consent stand-alone rights. As instructed by the Inter-American Court of Human Rights in Saramaka v. Suriname,1 principles of consultation and consent together constitute a special standard that safeguards and functions as a means for the exercise of indigenous peoples' substantive rights. It is a standard that supplements and helps effectuate substantive rights, including the right to property, which was the focus of the Court's judgement in that case, and other rights that may be implicated in natural resource development and extraction.

50. The primary substantive rights of indigenous peoples that may be implicated in natural resource development and extraction, as has been extensively documented include, in particular, rights to property, culture, religion, and non-discrimination in relation to lands, territories and natural resources, including sacred places and objects; rights to health and physical well-being in relation to a clean and healthy environment; and rights to set and pursue their own priorities for development, including development of natural resources, as part of their fundamental right to self-determination. These rights are grounded in multiple international instruments, including binding multilateral human rights treaties that have been widely ratified, and are articulated in the United Nations Declaration on the Rights of Indigenous Peoples.

51. By their very nature, the rights that are potentially affected by natural resource extraction entail autonomy of decision-making in their exercise. This is especially obvious with regard to the rights to set development priorities and to property, but it is also true of the other rights. Accordingly, the consultation and consent standard that applies specifically to indigenous peoples is a means of effectuating these rights, and is further justified by the generally marginalized character of indigenous peoples in the political sphere, but it is a standard that certainly does not represent the full scope of these rights (A/HRC/1 8/3 5, para. 82).

52. Furthermore, it is important to comprehend that the consultation and consent standard is not the only safeguard against measures that may affect indigenous peoples' rights over their lands, territories and natural resources, among others. Such additional safeguards include but are not limited to the undertaking of prior impact assessments that provide adequate attention to the full range of indigenous peoples' rights, the establishment of mitigation measures to avoid or minimize impacts on the exercise of those rights, benefit-sharing and compensation for impacts in accordance with relevant international standards.3 All these safeguards, including the State's duty to consult, are specific expressions of a precautionary approach that should guide decision-making about any measure that may affect rights over lands and resources and other rights that are instrumental to the survival of indigenous peoples.

53. Consultation and consent and related safeguards are instrumental to securing indigenous peoples' rights in the face of extractive industries that operate or seek to operate on or near their territories, but understanding the reach of those underlying substantive rights and the potential impacts on those rights must be a starting point for solving the many questions that arise in this context.

2. Duty of States to protect and the responsibility of corporations to respect the human rights of indigenous peoples in relation to extractive activities

54.54. The Special Rapporteur has observed a high level of acceptance by States and transnational business enterprises of the "protect, respect and remedy" framework that is incorporated into the Guiding Principles on Business and Human Rights (A/HRC/17/31, annex) that were endorsed by the Human Rights Council in 2011 in its resolution 17/4. The Guiding Principles affirm the well-established maxim of international law that States have a duty to protect human rights, including against abuses by business enterprises and other third parties, through appropriate policies, regulation and adjudication. The second pillar of the Guiding Principles is the responsibility of corporations to respect human rights by acting with due diligence to avoid infringing or contributing to the infringement of human rights. The third is the need for effective remedies to redress violations when they occur.

55. While the Special Rapporteur has observed a high level of acceptance of the Guiding Principles and their "protect, respect and remedy" framework, he has also noted ambiguity among Government and corporate actors about the extent to or manner in which the Guiding Principles relate to the standards of human rights that specifically concern indigenous peoples. This ambiguity should be dispelled in favour of a clear understanding that the Guiding Principles apply to advance the specific rights of indigenous peoples in the same way as they advance human rights more generally, when those rights are affected or potentially affected by business activities, including extractive industries. There is no sound reason to exclude the human rights standards that apply specifically to indigenous peoples from the application of the Guiding Principles, and to do so would be contrary to the injunction, found among the Guiding Principles' introductory paragraphs, that they should be applied "in a non-discriminatory manner", with particular attention to the rights and needs of groups that are vulnerable or marginalized.

56. The Special Rapporteur notes that the Expert Mechanism, in its recent follow-up report on indigenous peoples and the right to participate in decision-making (A/HRC/EMRIP/2011/2), discussed the relationship between the Guiding Principles and the rights of indigenous peoples. The Special Rapporteur joins the Expert Mechanism in affirming that all the Guiding Principles are to be applied specifically to indigenous peoples with due regard to the relevant international standards, and he urges all concerned to take account of the Expert Mechanism's exposition of the particular implications of the Guiding Principles in the context of extractive industries operating or seeking to operate within or near indigenous territories (A/HRC/EMRIP/2011/2, paras. 26-28).

57. It bears reiterating here that the State's protective role in the context of extractive industries entails ensuring a regulatory framework that fully recognizes indigenous peoples'rights over lands and natural resources and other rights that may be affected by extractive operations; 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 Governments 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.

58. The Special Rapporteur regrets that he has found, across the globe, deficient regulatory frameworks such that in many respects indigenous peoples' rights remain inadequately protected, and in all too many cases entirely unprotected, in the face of extractive industries. Major legislative and administrative reforms are needed in virtually all countries in which indigenous peoples live to adequately define and protect their rights over lands and resources and other rights that may be affected by extractive industries. Yet at the same time and in the same countries in which this need persists, extractive industries are permitted to encroach upon indigenous habitats, a situation that the Special Rapporteur finds alarming and in need of urgent attention.

59. For their part, business enterprises have a responsibility to respect human rights, including the rights of indigenous peoples, and this responsibility is independent of the State duty to protect. In referring to the human rights that corporations are responsible for respecting, principle 12 of the Guiding Principles states that these include, "at a minimum", those rights specified in the International Bill of Human Rights and the International Labour Organization's Fundamental Principles and Rights at Work, while the commentary to principle 12 clarifies that, when applicable, other human rights instruments, such as those applying to particular groups, including indigenous peoples, should inform the corporate responsibility to respect human rights. It is therefore evident, especially in the light of the mandate to apply the Guiding Principles in a non-discriminatory manner (see para. 55), that the rights that corporations should respect include the rights of indigenous peoples as set forth in the United Nations Declaration on the Rights of Indigenous Peoples and in other sources.

60. The commentary to principle 11 of the Guiding Principles also clarifies that the corporate responsibility to respect human rights "exists independently of States' abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights."

61. This independence of responsibility notwithstanding, the Special Rapporteur has 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. Due diligence requires, instead, ensuring that corporate behaviour does not infringe or contribute to the infringement of the rights of indigenous peoples that are internationally recognized, regardless of the reach of domestic laws. A discussion of particular aspects of corporate due diligence with regard to indigenous rights can be found in the Special Rapporteur's report to the Human Rights Council at its fifteenth session (A/HRC/15/37, para. 46).

3. Consultation and consent in relation to the State duty to protect and the corporate responsibility to respect

62. As stated in paragraphs 47 to 53, principles of consultation and consent function to safeguard indigenous peoples' rights when natural resource extraction may affect those rights, along with other safeguard mechanisms, including impact assessments, mitigation measures and compensation or benefit-sharing. The consultation and consent safeguard, just as the other safeguards, is part of the State duty to protect indigenous peoples' rights in the context of extractive industries, which finds expression in article 32 (2) of the United Nations Declaration on the Rights of Indigenous Peoples in the following terms:

States shall 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.

63. The Special Rapporteur has devoted considerable attention to the duty of States to consult indigenous peoples in previous reports to the Human Rights Council, reports in which he identified the various international treaties and other sources (including the Declaration) grounding the duty to consult and in which he sought to clarify the justification, scope and minimum requirements of consultation procedures (see, for example, A/HRC/12/34; A/HRC/12/34/Add.6, paras. 15-41; and A/HRC/15/37, paras. 60- 70).

64. Given its character as a standard to safeguard indigenous peoples' rights, the specific requirements of the duty to consult and the objective of obtaining consent, in any given situation in which extractive operations are proposed, are a function of the rights implicated and the potential impacts upon them. Accordingly, a focus on the rights implicated, as urged in paragraphs 49 and 50, is an indispensible starting point for devising appropriate consultation and consent procedures. The particular indigenous peoples or communities that are to be consulted are those that are the bearers of the potentially affected rights, the consultation procedures are to be devised to identify and address the potential impacts on the rights, and consent is to be sought for those impacts under terms that are protective and respectful of the rights.

65. As established by the Inter-American Court of Human Rights, consistent with the United Nations Declaration on the Rights of Indigenous peoples and other sources, where the rights implicated are essential to the survival of indigenous groups as distinct peoples and the foreseen impacts on the exercise of the rights are significant, indigenous consent to the impacts is required, beyond simply being an objective of consultations. It is generally understood that indigenous peoples' rights over lands and resources in accordance with customary tenure are necessary to their survival. Accordingly, indigenous consent is presumptively a requirement for those aspects of any extractive operation that takes place within the officially recognized or customary land use areas of indigenous peoples, or that has a direct bearing on areas of cultural significance, in particular sacred places, or on natural resources that are traditionally used by indigenous peoples in ways that are important to their survival. Even if consent is not strictly required, other safeguards apply and any impact that imposes a restriction on indigenous rights must, at a minimum, comply with standards of necessity and proportionality with regard to a valid public purpose, as generally required by international human rights law when restrictions on human rights are permissible.

66. Consultation procedures regarding proposed extractive operations are channels through which indigenous peoples can actively contribute to the prior assessment of all potential impacts of the proposed activity, including whether and to what extent their substantive human rights and interests may be affected. In addition, consultation procedures are crucial to the search for less harmful alternatives or in the definition of mitigation measures. Consultations should also be, ideally, mechanisms by which indigenous peoples can ensure that they are able to set their own priorities and strategies for development and advance the enjoyment of their human rights.

67. For them to serve as true avenues for dialogue and negotiation, consultation procedures should tackle existing power imbalances by establishing mechanisms for sharing information and adequate negotiation capacity on the indigenous peoples' side. Playing a genuine protective role, States should facilitate such mechanisms, which may require the involvement of State actors other than those directly involved in the project or the inclusion of external advisers. In fulfilling their responsibility to respect the rights of the indigenous communities, private companies that are the proponents of extractive projects should, on their part, defer to indigenous decision-making processes without attempting to influence or manipulate the consultation process. Only if these conditions are met can any agreement with indigenous peoples be considered to be the result of genuinely free and informed consultations.

68. If consent is obtained, it should be upon equitable and fair agreed-upon terms, including terms for compensation, mitigation measures and benefit-sharing in proportion to the impact on the affected indigenous party's rights. In addition, terms for a long-term sustainable relationship should be established with the corporation or other enterprise that is the operator of the extractive project. This implies new business models involving genuine partnerships, in keeping with indigenous peoples' right to set their own priorities for development (see paras. 72-76).

69. The duty to consult is one that rests with the State in accordance with its protective role. For its part, a business enterprise that seeks to operate extractive industries affecting indigenous peoples has the independent responsibility to ensure that adequate consultation procedures have been undertaken and indigenous consent obtained for impacts on indigenous rights under equitable terms, to the extent required by international standards.

70. The Special Rapporteur has observed that in many instances corporations approach and seek to negotiate directly with indigenous peoples about proposed extractive activities that may affect them. Such initiatives in principle are not incompatible with international human rights standards, and indigenous peoples are free, by virtue of their right to self-determination, to enter into negotiations directly with companies if they so wish. Direct negotiations between companies and indigenous peoples may be the most efficient and desirable way of arriving at agreed-upon arrangements for the extraction of natural resources within or near indigenous territories that are fully respectful of indigenous peoples' rights, and they may provide indigenous peoples with opportunities to pursue their own development priorities.

71. Corporations must, however, exercise due diligence to mitigate power imbalances and avoid outcomes that are not compliant with human rights standards, and States must act to protect against such power imbalances and ensure the adequacy of any agreements. Because of the significant disparities in power, negotiating capacity and access to information that typically exist between corporations and indigenous peoples, the protective role of the State is especially important in this context. This duty to protect includes providing for appropriate grievance mechanisms.

4. Towards new models of development for resource extraction

72.72. The above analysis suggests that extractive industries can legitimately operate within or near indigenous territories if specific measures of State protection and corporate respect for indigenous peoples' rights are taken. The Special Rapporteur is aware, however, that across the globe indigenous peoples are continuing to resist extractive industry operations that may affect them. In many cases, they tend even to resist entering into consultations over proposed extractive and other natural resource development activity for fear of being forced down a path of acceptance of extractive activities that from the outset they do not want near them. In instances in which such resistance persists, it will be problematic for extractive industries to operate, even if only because of the practical consequences that derive from a lack of social licence.

73. The resistance of indigenous peoples to extractive industries is understandable, given the multiple human rights violations and instances of environmental devastation that indigenous peoples have suffered because of extractive operations, as discussed by the Special Rapporteur in his report to the Council in 2011. On top of this history of wrongs at the hands of extractive industries are the continuing lack of effective State laws, regulations and administrative practices to recognize and protect indigenous peoples' rights, and the lack of demonstrated corporate responsibility to respect those rights as a matter of course (see paras. 57-61). Initial steps towards enhancing the possibilities of extractive industries in or near indigenous territories involve addressing these deficiencies.

74. In the view of the Special Rapporteur, however, a more fundamental problem persists: the model of natural resource extraction that is being promoted by corporations and States for the development and extraction of natural resources within indigenous habitats. It is a model in which the initial plans for exploration and extraction of natural resources are developed by the corporation, with perhaps some involvement by the State, but with little or no involvement of the affected indigenous community or people. The corporation controls the extractive operation and takes the resources and profits from it, with the State gaining royalties or taxes, and indigenous peoples at best being offered benefits in the form of jobs or community development projects that typically pale in economic value in comparison to the profits gained by the corporation. It is a model of colonial overtones, in which indigenous peoples see their territories again encroached upon by outsiders who control aspects of their habitats and take from them, even when done with the promise of corporate social responsibility.

75. The Special Rapporteur believes that new and different models and business practices for natural resource extraction 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, in which the indigenous part has a significant or even controlling share in the ownership and management of the partnership, or models in which indigenous peoples develop their own extractive business enterprises.

76. The Special Rapporteur is aware that, in several places, indigenous peoples have in fact developed such partnership arrangements or their own extractive operations. On the other hand, some indigenous peoples may under no circumstances want to see natural resources extracted from their traditional habitats on an industrial scale. If self-determination means anything, however, it means the right to choose – and not simply a binary choice between an existing model of resource extraction that is unattractive or no extraction at all. In his future work on extractive industries, the Special Rapporteur plans to examine various models of natural resource extraction in which indigenous peoples have greater control and benefits than is typically the case under the standard corporate model, drawing on a review of the experiences of indigenous peoples in various locations


 

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