Statement by Professor James Anaya,
Special Rapporteur on the Rights of Indigenous Peoples
Second Annual United Nations Forum on Business and Human Rights
Panel: Indigenous peoples and business operations
taking steps towards implementing the UN Guiding Principles
Geneva, 4 December 2013
Fellow panelists,
Participants and representatives of Members States,
Friends and colleagues,
It is a great pleasure to be able to participate in this panel. 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 three reports to the Council included observations and recommendations from my study of the issues faced by indigenous peoples that arise from extractive industries. I would like to focus today on the findings laid out in my last report to the Council, which was published in July of this year and which I presented to the Council at it’s last session in September.
It is important to acknowledge as I do in my last and previous reports to the Human Rights Council, that indigenous peoples around the world have suffered negative, even devastating, consequences from extractive industries. I have further observed that, even at its best, the business model that still prevails in most places for the extraction of natural resources within indigenous territories is not one that is fully conducive to the fulfilment of indigenous peoples’ rights. Thus I have urged the need to examine new business models for natural resource extraction development, models that are more conducive to the full enjoyment by indigenous peoples of their rights.
In my last report to the Council I observe that such an alternative model is one we can now see unfolding in various parts of the world, in which indigenous peoples themselves are forming their own enterprises and taking their own initiatives to extract and develop natural resources within their territories. In my report I argue that this is a preferred model for natural resource extraction, if extraction is to occur within indigenous territories. And I argue that States and the international community should support indigenous peoples initiatives to develop the natural resources within their territories, and that States should accord indigenous peoples preference in the granting of licenses or concessions for those initiatives.
But rather than choosing to or being in a position to pursue their own initiatives for industrial scale resource extraction, for most indigenous peoples across the globe the more standard scenario will continue to be one in which they face initiatives by the State or outside companies to develop the resources within their territories.
Within this context, the principle of free, prior and informed consent becomes of central importance. In accordance with the United Nations Declaration on the Rights of Indigenous Peoples and other international sources, free, prior and informed consent applies as a safeguard when the exercise of indigenous peoples rights may be affected by the decisions of State authorities or others. As a safeguard, indigenous consent is to be sought and given only upon conditions that provide for sustainable agreements with indigenous peoples that are conducive and protective of their rights, which in this context include their right to self-determination and the related right to pursue their own priorities for development, their rights to lands and resources in accordance with traditional tenure, their rights to culture and religion in connection with their traditional territories and sacred places, and their rights to a clean and healthy environment.
In my report I lay out I what I see as the minimum conditions for sustainable agreements with indigenous peoples for the extraction of natural resources within their territories, in accordance with now accepted international standards that are aimed at securing their rights, including the standard of free, prior and informed consent. I would like to now briefly summarize these conditions. They include the following:
First, there need to be in place adequate State regulatory regimes that are protective of indigenous peoples’ internationally recognized rights. In the context of extractive industries, the State’s obligation to protect human rights necessarily 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 the behaviour of extractive companies; and that provides effective sanctions and remedies when those rights are infringed either by government or corporate actors.
Second, in this connection, States that are home to extractive companies that operate abroad in indigenous territories should adopt regulatory measures that are aimed at preventing and, in appropriate circumstances, sanctioning and remedying violations of the rights of indigenous peoples abroad for which those companies are responsible or in which they are complicit. (Principle 2, commentary).
Third, indigenous peoples should be afforded the opportunity to participate in strategic State planning on natural resource development and extraction, given that such strategic State planning can have profound, even if not so immediate, effects on the enjoyment of their rights.
Fourth, in accordance with the Guiding Principles on Business and Human Rights, companies that seek to engage in resource extraction should perform due diligence to ensure that their actions will not violate or be complicit in violating indigenous peoples’ rights. This diligence entails identifying with particularity, at the very earliest stages of planning for an extractive project, the specific indigenous groups that may be affected by the project, their rights in and around the project area and the potential impacts on those rights. Additionally, extractive companies should employ due diligence to avoid acquiring tainted assets, such as permits previously acquired by other business enterprises in connection with prospecting for or extracting resources in violation of indigenous peoples’ rights.
Fifth there need to be fair and adequate procedures for consultations and negotiations with indigenous peoples, in order to arrive at consent based on fair and equitable agreements. Necessary features of an adequate consultation or negotiation over extractive activities include State oversight when indigenous peoples choose to negotiate directly with companies; specific measure to mitigate power imbalances; information gathering and sharing; provision for adequate timing of consultations, in an environment free of pressure; and assurance of indigenous peoples’ participation through their own representative institutions.
Finally, agreements with indigenous peoples allowing for extractive projects within their territories must be crafted on the basis of full respect for their rights in relation to the affected lands and resources. In particular, agreements should include provisions providing for impact mitigation, for equitable distribution of the benefits of the projects, for substantial indigenous participation in the control over the execution of the project within a framework of genuine partnership, and grievance mechanisms that take into account indigenous peoples own laws and institutions.
Without all these conditions and the free, prior and informed consent of indigenous peoples, extractive projects should not go forward on their recognized or traditional territories. But with these conditions extractive activities may be, not merely compatible with indigenous peoples rights, and in particular their right to self-determination, but may help to strengthen the exercise of their rights.
Thank you for your kind attention.
* * *