Special Rapporteur on the rights of indigenous peoples

Special Rapporteur on the rights of indigenous peoples, James Anaya

Geneva – 21 September 2011

Yesterday, I presented my fourth annual report to the Human Rights Council. In my statement before the Council I presented an overview of my work over the past year and offered some brief comments on the thematic issue that I am in the process of studying, that is, the issue of natural resource extraction and other major development projects operating on or near indigenous lands. I would like to take this opportunity to provide some additional comments on this issue.

Extractive industries study

The impacts of extractive industries on indigenous peoples are a subject of special concern to me in my work as Special Rapporteur. In several country-specific and special reports, and in my review of particular cases, I have examined various situations in which extractive industry activities generate impacts that infringe upon indigenous peoples’ rights.

I often receive, in particular, reports of problems associated with mining activities carried out on indigenous lands:

• For example, in my report this year on communications with Governments concerning alleged human rights violations, I discuss information received from various sources that the Government of Mexico has issued 22 mining concessions in the Wirikuta area, in the state of San Luis Potosí, covering an area that is sacred to the indigenous Wixárika, or Huichol, people. Within this area, the wixárika have for more than 1000 years, recreated the pilgrimage of their ancestors to the mountains where according to their beliefs, the sun first rose, and the world was created. It should be noted that I have received information from the Government of Mexico about the efforts it has taken, or plans to take, to consult with relevant Wixárika groups, and to safeguard the rights of these groups in the affected areas.

• Also, during my visit to New Caledonia, France, I heard a number of Kanak chiefs and representatives express frustration over the absence of economic benefits to their people from the enormous nickel wealth being generated in the country. In my report on the situation of Kanak people in New Caledonia presented to the Council this year, I offer several examples of negative experiences that Kanak people have had with mining activities. In addition, I provide an overview of some positive developments that have taken place in this regard in the country, included new nickel mining and processing operations that include the Kanak people as partners.

Issues associated with the construction of hydroelectric dams within indigenous territories or affecting indigenous peoples have also arisen repeatedly in my work:

• For example, this year, with the cooperation of the Government and indigenous peoples concerned, I travelled to Costa Rica to assess the situation of indigenous peoples affected by the potential construction of the Diquís hydroelectric project. In my report on the situation, I made a number of recommendations to allow for an adequate process of consultation about the proposed project, with specific suggestions for adhering to international standards. Among my recommendations was the formation of a group of independent experts, backed by the United Nations system, to facilitate a consultation process. I have received positive indications from the Government of Costa Rica and the affected indigenous peoples in support of my recommendations, and I look forward to continued dialogue with all parties concerned on this important matter.

• I also provided observations on allegations I received concerning the construction of the Gibe III hydroelectric dam in Ethiopia. According to the information received, the dam will adversely affect indigenous communities living in the Lower Omo River Valley, who depend on the Omo River for subsistence agricultural activities, grazing and watering necessary for raising cattle, goats and sheep, and for transportation and for bathing. The Government of Ethiopia has provided a different view on the effects of the Gibe III hydroelectric dam, which I address in my discussion of the case included in my annual report to the Human Rights Council on communications.

Throughout my work, I have encountered various examples of how natural resource extraction and development projects have resulted in the loss of control over the lands and resources of indigenous peoples, with detrimental consequences to their ways of life and traditional practices.

• For example, in Norway, Sweden and Finland, the Sami way of life, especially in relation to reindeer husbandry, has been threatened significantly by competing usage of land, often involving natural resource extraction or other development projects promoted by the Governments. In all three Nordic countries, various natural resource extraction and development projects threaten to diminish areas available for grazing. Already, mining, hydroelectric, forestry projects and tourism activities have resulted in loss and fragmentation of pasture lands, with effects on reindeer movement and, consequently, on their reproductive levels and survival. While important initiatives have been undertaken in the Nordic countries to remedy this historic loss of reindeer herding land, I note in my report on the situation of Sami people in the Sápmi region—presented to the Council this year—ways in which these initiatives can be strengthened.

• Additionally, I have heard allegations regarding the effect of continuing palm oil operations on indigenous lands in the state of Sarawak, Malaysia. Reportedly various communities have seen restrictions on their ability to exercise their native customary rights over their lands, upon which they depend for hunting or farming, and which are essential to their cultural survival. The Government of Malaysia has made notable strides in recognizing and protecting indigenous customary land rights through domestic legislation and judicial decisions, and I hope that these legal protections can be strengthened and effectively implemented.

Preliminary assessment of questionnaire responses

Given this common pattern across the world, in my work as Special Rapporteur I am aiming to contribute to efforts at clarifying and resolving the problems arising from extractive industries in relation to indigenous peoples. Towards this end, earlier this year I disseminated a “questionnaire on natural resource extraction and development projects on or near indigenous territories” to collect and understand views, concerns, and recommendations related to extractive industries operating on or near indigenous territories. In my report to the Council this year, I provide a preliminary assessment of the responses to this questionnaire.

The various points of view communicated by indigenous peoples, governments, business enterprises and other relevant stakeholders concerning natural resource and energy extractive development projects in indigenous territories reveal that, despite a growing awareness of the need to respect the rights of indigenous peoples as an integral part of those projects, many problems still remain. Together with those of indigenous peoples’ organizations and representatives, the responses of many governments and corporations reflect a clear understanding of the negative and even catastrophic impacts on the economic, social and cultural rights of indigenous peoples derived from irresponsible or negligent projects that have been or are being implemented in indigenous territories without proper guarantees or involvement of the peoples concerned.

In addition, while an awareness and express commitment by States to the protection of the rights of indigenous peoples is evident in the many government responses received to my questionnaire, these responses, coupled with those received from other sources, also reflect a lack of operative consensus about the extent and means of realization of the State’s duties concerning resource extraction and development projects. Several responses, particularly those received from business actors, pointed out that Governments often avoid direct involvement in the implementation of consultation procedures and other safeguards for indigenous peoples rights in the context of extractive operations and instead act as mere regulators. The delegation of the State’s protective role to business enterprises was recurrently pointed out as a matter of concern, particularly when there are insufficient or non-existent State regulatory frameworks regarding indigenous rights, including in relation to protection of lands and resources, consultation and benefit-sharing.

An additional, significant area of divergent perspectives concerns the balance of costs and benefits of extractive development projects. Even though there is a shared awareness of past negative impacts of extractive activities for indigenous peoples, there are widely divergent perspectives about the incidence and value of actual or potential benefits from extractive industries, especially into the future. Many of the Governments’ responses to my questionnaire underscore the key importance for their domestic economies. Many of the responses by business actors share the view that indigenous peoples could stand to benefit from extractive industries.

For their part, indigenous peoples’ responses to my questionnaire are dominated by considerable scepticism, and in many cases outright rejection, of the possibility of benefiting from extractive or development projects in their traditional territories. The vast majority of indigenous peoples’ responses, many of which stem from the direct experience of specific projects affecting their territories and communities, instead emphasize a common perception of disenfranchisement, ignorance of their rights and concerns on the part of States and businesses enterprises, and constant life insecurity in the face of encroaching extractive activities. With this perception many indigenous respondents assert that there is no apparent positive impact to be had from the operations of extractive industries. Instead these operations are seen as inevitably a top-down imposition of decisions taken in a collusion of State and corporate interests than the result of negotiated decisions in which indigenous communities are directly involved.

Proposed future plan of work

In my view, the lack of a minimum common ground for understanding of key issues among all actors concerned makes for a major barrier t the effective protection and realization of indigenous peoples’ rights in the context of extractive development projects. The lack of common understanding among the actors concerned, coupled with the existence of numerous grey conceptual and legal areas, has invariably proved to be a source of social conflict. Experiences in many places provide ample examples of the eruption and escalation of these conflicts and the ensuing radicalization of positions. Where social conflicts erupt in connection with extractive or development plans in indigenous territories, everybody loses.

The responses to my questionnaire manifest the 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 toward such change is establishing a common ground of understanding among the indigenous peoples, governmental actors, businesses enterprises and other relevant actors. I am conscious of the complexities inherent to any effort to harmonize the various interests involved in context of extractive industries and indigenous peoples, as well as of the difficulties in bridging the contrasting viewpoints that currently exist among the actors concerned.

However, I am persuaded of the need to advance towards a minimum common understanding of the content and scope of the rights of indigenous peoples and of the implications of those rights for the future desirability or viability of extractive industries on or near indigenous territories, the nature of the responsibility of States to protect indigenous peoples’ rights in this context, the actual or potential impacts of extractive industries – both positive and negative, and related matters. Without a minimum level of common understanding, the application of indigenous rights standards will continue to be contested, indigenous peoples will continue to be vulnerable to serious abuses of their individual and collective human rights, and extractive activities that affect indigenous peoples will continue to face serious social and economic problems.

In this connection, I am committed during the second term of my mandate to work in coordination with other mechanisms, in particular the Expert Mechanism on the Rights of Indigenous Peoples of the Human Rights Council, to develop concrete and practical recommendations, elaborating on the implications of existing human rights standards, in order to help indigenous peoples, States and business enterprises navigate the difficult issues that arise when extractive industries operate in or near indigenous territories.

I look forward to presenting my study on these central issues in the coming years. I also welcome any questions or comments those present may have at this time.

ENDS

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