Evaluating international ethical standards and instruments for indigenous rights and the extractive industries (original) (raw)
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Rocky Mountain Mineral Law Foundation Manual – International Mining and Oil & Gas: Law, Development, and Investment, 2013
Extractive activities ---especially oil & gas and mining-related activities--- may cause a great impact on the exercise of some peoples and communities’ basic rights. The extent of their operations, their high investments, the wide range of stakeholders and the cultural differences evidenced between multinational companies and indigenous communities contribute to the generation of conflicts. Therefore, the Americas are currently facing serious conflicts involving companies, States and indigenous peoples due to this kind of activities. Such conflicts have been analyzed within the Inter-American Human Rights System (IAHRS), through the Inter-American Commission of Human Rights (IACHR) and the Inter-American Court of Human Rights (IACrtHR) with case findings and reports. The criteria developed by them sets forth certain human rights standards that should be observed by extractive companies. This paper is aimed at assessing such standards and making recommendations on how they can be enforced by national governments in their domestic regulations and complied with by private companies. This paper has been divided into four sections. Firstly, we discuss some of the features of the conflicts arising between extractive companies and indigenous peoples. Secondly, we develop the concepts of indigenous and tribal peoples and the significance of recognizing their existence as a necessary requirement to understand the following sections. Thirdly, we examine the reasons behind governments and companies’ obligations to respect human rights standards, since before reviewing such standards in depth we must understand why it is mandatory to comply with them. Finally, we develop the five major standards set forth by the Inter-American Human Rights System on the indigenous peoples’ rights. This paper, from introduction through conclusion, provides some guidelines to help governments, companies and communities to better comply with these standards.
The right of indigenous peoples over their lands, territories, and natural resources has been developed in recent years by the Inter-American Court of Human Rights. When this right is in apparent or real conflict with the rights or interests of the extractive industry over these lands or natural resources, resolving the conflict presents complex legal and practical problems. The Inter-American Court has established standards that must be met in order to restrict indigenous peoples' rights over their lands and natural resources, as well as the requirement to conduct transparent consultations in good faith and, when applicable, obtain the free, prior, and informed consent of the affected indigenous peoples before a project can be approved in their territories. This article explores these standards and requirements, and analyzes their application by the Inter-American Court and the Inter-American Commission on Human Rights.
Twenty years after the creation of the General Environmental Framework Law, environmental requirements have increased. Besides the role that the Environmental Impact System has played as the main guarantor of 'good practices' on investment projects, international standards have been put onto the environmental agenda. Thus, both the State and mining companies have expanded their horizons and scope, emphasising discussion on environmental impact assessments, especially in relation to indigenous peoples. However, in practice, it is possible to observe gaps in its application, encouraging discretional analysis about the impacts that investment projects generate. This article comparatively analyses the ILO Convention No. 169 and the ICMM (International Council on Mining and Metals) Indigenous People and Mining Good Practice Guide, in order to examine how both the State and mining companies have signed up to these standards only at a discursive level, avoiding the structural changes involved. Therefore, this paper shows the diffuse applicability of these standards in Chile and, consequently, the vulnerability challenging indigenous peoples facing incremental measures decided arbitrarily between the State and the mining companies.
2014
In June 2011, the UN Human Rights Council unanimously endorsed the UN Guiding Principles on Business and Human Rights (UNGP). These principles form the first globally-agreed framework for preventing and addressing adverse human rights impacts linked to business activities. While the UNGP do not introduce new human rights obligations, they do specify how human rights standards and state obligations that are set out in existing human rights agreements translate into the business context. Indigenous peoples are among the most severely affected by business operations: oil and gas extraction, the construction of large dams or agricultural expansion for cash crop cultivation, among others, all result in a wide variety of human rights abuses such as the devastation of indigenous ancestral lands, forced evictions or extrajudicial killings by private security forces. This document explores the potential of the UNGP to ensure that the rights of business-affected indigenous peoples are respected, protected and fulfilled. It examines the relationship between the UNGP and indigenous peoples’ substantive rights, in particular the rights to self-determination, land and resources, from which inter alia ensues the right to Free, Prior and Informed Consent. Since the UNGP emphasise the need to ensure access to effective remedies, this report looks at existing remedy mechanisms at all levels and examines their effectiveness for indigenous peoples. Finally, the report makes specific recommendations to states, business enterprises, international institutions and indigenous peoples to ensure that the UNGP can become an effective tool for preventing and mitigating the human rights violations suffered by indigenous peoples.
Indigenous Peoples, Resource Extraction and Sustainable Development: An Ethical Approach
Journal of Business Ethics, 2005
Resource extraction companies worldwide are involved with Indigenous peoples. Historically these interactions have been antagonistic, yet there is a growing public expectation for improved ethical performance of resource industries to engage with Indigenous peoples. (Crawley and Sinclair, Journal of Business Ethics 45, 361-373 (2003)) proposed an ethical model for human resource practices with Indigenous peoples in Australian mining companies. This paper expands on this work by re-framing the discussion within the context of sustainable development, extending it to Canada, and generalizing to other resource industries. We argue that it is unethical to sacrifice the viability of Indigenous cultures for industrial resource extraction; it is ethical to engage with indigenous peoples in a manner consistent with their wishes and needs as they perceive them. We apply these ideas to a case study in the coastal temperate rainforest of Clayoquot Sound, British Columbia, Canada. In this case a scientific panel comprised of Nuu-Chah-Nulth elders, forest scientists and management professionals, achieved full consensus on developing sustainable forest practice standards by drawing equally on Indigenous traditional ecological knowledge and Western science in the context of one of the most heated and protracted environmental conflicts in Canadian history. The resulting sustainable forest practice standards were later adopted by leading forestry firms operating on the coast. Our analysis of this scientific panel's success provides the basis for advancing an ethical approach to sustainable development with Indigenous peoples. This ethical approach is applicable to companies working in natural resource industries where the territories of Indigenous peoples are involved.
Perspectives in Ecology and Conservation
The paper focuses on one of the topics of key concern for both indigenous peoples and the mining se namely the corporate responsibility to respect indigenous peoples' right to give or withhold their con to extractive industry projects in their lands and the fundamental role of this principle in altering predominant and all too frequently devastating model of mining that is imposed in indigenous peo territories. The paper traces the emergence of extractive industry standards and initiatives showing continuing mining disasters and associated human rights abuse have obliged the industry to recog indigenous peoples' right to give or withhold their Free, Prior and Informed Consent to operations may affect their customary lands. It examinesthe development of industry good practice since the W Bank's Extractive Industries Review, the subsequent formation of the International Council on Min and Metals while considering the contribution its members have played in recent mining catastro involving indigenous peoples. It distills good practice on indigenous consultation and the princip native title from evolving national and international lawand tracks how these have led to the inclusi Free, Prior andInformed Consentin the recentInitiative for Responsible Mining Assuranceand Alumin StewardshipInitiative standards. The focus on the two most recent multi-stakeholder standard initia in the mining sector offers a sense for where further developments may occur while also noting potentiallimitations. The paper concludes with recommendations to theextractive industry to recog and protect indigenous' peoples' rights as a preeminent principle of responsible mining good practi
Indigenous Peoples and the Extractive Sector: Towards a Rights-Respecting Engagement
2014
Despite the slowdown in the extractive sector following the global financial crash in 2007, there are signs of recovery in a number of industry sub-sectors, in particular, in unconventional energy and for resources such as nickel and copper. This is expected to occur irrespective of their substantial contribution to CO2 emissions and environmental harms, in particular, to water sources. o In the oil and gas industry, oil production from conventional oilfields is declining at an average annual rate of over four percent (equivalent to a reduction of 47 million barrels per day). It is increasingly likely that supply will come from countries that are non-Organization of the Petroleum Exporting Countries (OPEC).