FPIC, Canada, and yet another pipeline

The debate on the meaning of free, prior and informed consent  (FPIC) within the United Nations Declaration on Indigenous Peoples has centered around whether this gave indigenous groups the right to veto proposed projects, or whether the obligation to obtain consent simply was a mask for a consultation process—where the final views of the indigenous group did not carry any authority for a rejection of a project. 

With the recent announcement in May of the Canadian government’s intention to fully implement the provisions of the UNDRIP, the question of what position it might take on the contested meaning of FPIC becomes more than mere rhetorical speculation.

This becomes a key question as to whether a proposed pipeline project will proceed. An expansion of the Trans Mountain pipeline is opposed by the “The Stó:lō collective of First Nations in British Columbia”. The SupremeCourt of Canada, in 2014, ruled that indeed consent meant consent and not a consultation process, absent a showing by provincial or federal governments that “there is a pressing public need” for economic activity on some Aboriginal lands.  More information on that court decision can be located here. 

There is a view then, that FPIC in Canada will be seen as requiring consent, and not simply indicate that a consultation process must be undertaken. How all of this plays out, with respect to the proposed Trans Mountain pipeline, and other projects, remains to be seen.

Canada Announces Intent to Fully Implement UNDRIP

In May, Canada took further steps towards more fully supporting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It had been one of the four states that voted in opposition of General Assembly approval in 2007. But with an announcement by Canada’s Indigenous Affairs Minister on May 10,2016, Canada now has declared its intention to fully implement the Declaration. 

The announcement was made during a session of the UN  Permanent Forum on Indigenous Issues.

Canada reversed its initial opposition to the Declaration in 2010, when it announced its endorsement of the instrument. 

The announcement in May of an intention to fully implement is seen by some as a milestonefor indigenous rights in Canada. 

But there are mixed views on Canada’s announcement. Tori Cress, who attended the UNPFII, does not see the intentions of implementing the UNDRIP in accordance with the Canadian Constitution as a step forward for indigenous rights. 

Cress also criticizes the UNPFII as a forum dominated by state participants, leaving the indigenous participants in a “subordinate position.” 

The Undetected Lion King

No everybody knows Solomon Linda; but you may know the song ‘the lion sleeps tonight’ right? Well, that is probably the moment when you think of Disney’s ‘The Lion King’ and ask yourself what Salomon Linda has to do with it.

Solomon Linda is a Zulu musician, who composed this song and he is a victim of intellectual property. While The Walt Disney Company earned millions of Dollar by using his song, he died poor in a Southafrican township. It is a tragedy and scandal that companies (like Disney) exploit traditional knowledge (TK) without obeying international legal standards.

However, the situation is tricky. One the one hand, immense treasures of TK exist, values that go beyond ethical materialism or consumerism and on the other hand, cruel market policy expedited by globalisation forces the competition of companies. Realisable regulations are needed to protect TK and enforce the indigenous right to determine what happens to traditional values, be it music, designs or handicrafts.

Article 11 paragraph 2 of the United Nations Declaration on the Rights of Indigenous Peoples (UBDRIPI) marks the starting point for a bold approach. It implies the right to revitalize and develop cultural traditions and customs of indigenous peoples. The use of a traditional song in a successful animated film is quite a revival and a gain. The only way to guarantee that the utilization of a traditional song is not only a gain for the producing company but also for the composer, is to make an indigenous approval condition for the commercialisation. Within the Declaration and the ILO Convention 169, the achievement of the Free, Prior and Informed Consent (FPIC) could provide assistance. If states ensure that commercialisation of TK is only permitted if indigenous consent is granted, two beneficial aims could be achieved. A natural protection of the TK and the foundation of compensation. Therefore indigenous consent has to be interpreted as the power to decline or accept marketing strategies. By making the obtaining of indigenous consent obligatory for companies and states, the biggest obstacle would have been conquered.

FPIC, a legal affirmation of adequate socio-legal behaviour and decency, needs to become an every day practice in protecting TK. If this, or the truly implementation of the Declaration into national legal systems, were possible, you would have heard of Solomon Linda before.

Posted written by Lisa Albanis (LLM candidate, University of Buckingham).
Source The Guardian.



 
 

Suriname: the impact of gold mining

On February 13h we read a publication from the American Commission on Human Rights (IACHR) from a working visit to Suriname in South America. The visit took place on 23th and 25th January. From this visit the Commission released a statement on the rights of women and indigenous peoples of continental interest.

During the visit Rapporteurs received information from both the state and non-state individuals and entities. The Rapporteurs acknowledge the steps taken by the State to recognize the right of certain communities maroon i.e. recognition of their traditional territories and the use and enjoyment of the land and the resources necessary for their survival. Yet, the Rapporteurs emphasize the need to increase its efforts.

Some of the information that they received was related to gold mining and its impact. For instance the use mercury on water damages the quality of it in these communities. There is also the issue of forced displacement, child labour and sexual violence perpetrated against women in mining areas. Due to this situation surrounding gold mining, the Rapporteurs stress “the need to hold consultations with affected communities before and during the implementation of these activities, and the State's obligation to take measures to safeguard the economic, social and cultural rights of these communities”.

Another case presented to the Rapporteurs was from the village Brownsweg, where the population feels isolated “with respect to policies, programs and benefits provided by the national government and the lack of an effective response to their needs.” Moreover, the villagers noted “deficiencies in the provision of basic services, such as those related to water and health, and lack of support for the preservation of their language.”

While Suriname is not a member of the ILO Convention No 169, it is indeed one of the countries that voted in favour of the Declaration on the Rights of Indigenous Peoples (UNDRIP). Therefore, it is important to remember some potential articles which Suriname appears to be violating e.g. Art 10 ‘Indigenous peoples shall not be forcibly removed from their lands or territories.’ Art 17(2) “States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development, taking into account their special vulnerability and the importance of education for their empowerment.”. Art 26 “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”. Art 29 “Indigenous peoples have the right to the conservation and protection of the environment” and Art 29(2) “States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.” [I am sure there are more]

Source Servindi (Servicios en Comunicación Intercultural).

Colombia: consultation is a must!

From Colombia we heard news that a Judge in the region of Choco (situated in the west of Colombia on the Pacific coast) has suspended for six months the licenses, concessions and studies granted to mining in more than 50,000 hectares.

Going back to October 2012 the Land Unit from the Ministry of Agriculture filed a lawsuit against the National Mining Agency. At that time the Mining Agency has issued 13 titles covering 40,000 hectares, 13,000 of which were part of indigenous lands. The judge ordered security forces to recover, in the shortest time possible, the territory and ordered to the companies involved to withdraw personnel and machinery from the territory.

It is said, according to the Agencia Intercultutral de Noticias de Bolivia (AINI), the judge based the case on the fact that the Indigenous communities living in the area were never asked; in other words they were not consulted as required by the ILO Convention 169 and UNDRIP – both signed and ratified by Colombia.

'better early than late'

In Chile we heard of a case brought by indigenous communities against a geothermal energy investigation to take place on indigenous territories. The third chamber of the Court of Appeal of Santiago received three applications filed by three different communities: Huenchullán; Consejo de Pueblos Atacameños; and comunidad Manquilef Hueche regarding an exploration permit granted by Ministry of Energy in the regions of Araucanía and Antofagasta.

 The Court of Appeal unanimously rejected the lawsuits on the grounds of extemporaneousness in the filing of this constitutional action. Moreover, the Court explained that “there has been no illegal or arbitrary action by the Minister of Energy” because the said permit meets a legal and duly founded procedure. In regards of the action been extemporaneous the Court of Appeal noted that at this stage of the geothermal examination, the permit will only allows the party involve to recognize, inquire or ascertain the existence of energy if any, in the subsoil. Therefore, it is not possible to know if the project will affect communities or individuals. However the Court extended to say that a ‘consultation and participation’ of indigenous communities that may be affected by the project is necessary at a later stage - in compliance with Articles 6, 7 and 8 of the ILO Convention No 169.

Haven’t you heard of the expression ‘better early than late’? This is what did cross my mind while I was reading the case. You may also think of ‘the early bird catches the worm’ ie avoid losing time and recognize now that anything that happens in indigenous lands they need/must be consulted...full stop.

Chile is not strange to this type of cases -- conflicts over indigenous lands and the exploration and exploitation of their natural resources and moreover, referring to consultation and participation of indigenous peoples in decisions relating to this issue (see previous posts here and here). What is of curiosity is the fact that the Ministry of Energy is a body of the State and it should know better. The government should be an example of responsibilities and obligations pursuant ILO Convention No 169. Also Chile is a member of the United Nations Declaration on the rights of Indigenous People (UNDRIP) and although it is a non- binding resolution, it is a reaffirming piece that Chile has opted to follow.

Sources: Poder Judicial and Indigenous News.

More on the Tar Sands Project and Implications for Indigenous Rights and Well-Being

The controversy over the tar sands extraction and planned pipeline is featured in an article in the current edition of the International Journal on Human Rights. The article, by Jennifer Huseman and Damien Short, “A slow industrial genocide’: tar sands and the indigenous peoples of northern Alberta” examines the effects of environmental pollution on the indigenous peoples near the tar sands project. This article is important in pointing out the severe effects the tar sands project has on indigenous communities and their health.

This concern was of course outlined in the Mother Earth Accord (and which is evidence of the well-organised indigeneous activism on this and other issues) which was briefly discussed in an earlier post on this blog. The Mother Earth Accord document itself calls attention to the health problems that nearby indigenous communities have which have been “potentially linked to petroleum products”: “The Assembly of First Nations of Canada called on the United States government to take into account the environmental impacts of tar sands production on First Nations in its energy policy, citing the high rates of cancer in the downstream Fort Chipewyan community, which prominent scientists say are potentially linked to petroleum products;”

Concern about the tar sands project is not new. This link here details activity that has been ongoing to raise concerns and protest the tar sands project effects on indigenous peoples in Canada. See also this link here which raises issues about the violation of Treaty 8 in the tar sands project.

Treaty 8 is a treaty that was entered into between indigenous peoples in Canada and Queen Victoria of England. It set aside certain portions of land for the use and occupation of indigenous peoples and is one of a series of numbered treaties involving the indigenous peoples of Canada. (Click here for more information on Treaty 8)

The tar sands issue is one that has many complex and issues with both immediate and far-reaching consequences. There are short and long term environmental and health effects. There are further issues about what recognition will be given to the principle of free, prior and informed consent that is raised in the Mother Earth Accord, and is enshrined in the UN Declaration on the Rights of Indigenous Peoples. It might be tempting to think that the land-taking and disregard for not only the cultural integrity but the simple health and well-being of indigenous peoples is a thing of the past. But the tar sands issue shows that these are very much issues of the present day.

The responses of Canada and the United States, who both originally opposed the adoption of the UNDRIP, in particular to the claims raised about free, prior and informed consent, may be very telling as to how the rights in the UNDRIP will be received or resisted in these two countries.

Written by Sarah Sargent.

Tar Sands Pipeline, the Mother Earth Accord and the United Nations Declaration on the Rights of Indigenous Peoples

To what extent are legal practitioners and law students in the area of energy law made aware of indigenous rights and how those impact upon energy law? Too often, it seems, legal education and practice treat indigenous legal matters as a discrete and exotic area of law that will not infiltrate into the mainstream practice of law. ( which will be a topic for a future blog post). But nothing could be further from the truth. The controversy over the Keystone XL pipeline, also referred to as the Tar Sands pipeline, shows just how prevalent indigenous rights and issues are in current energy law considerations.
The proposed pipeline would carry oil from Canada to Texas—carrying “tar sands crude oil.” In some quarters, this has been received with good news—it would provide additional resources for oil, easing concerns about shrinking oil availability. But there have been sharp protests to the proposed pipeline by effected indigenous communities. The “Mother Earth Accord” outlines the indigenous concerns about the environmental and health effects of the proposed pipeline. The Accord was presented to President Obama in December 2011. 

The Accord is an example of indigenous activism on legal issues. According to the Newspaper Rock , “The Accord was developed in September [2011] during a Rosebud Sioux tribal summit.” The Accord invokes rights given in the United Nations Declaration on the Rights of Indigenous Peoples to be consulted with and to consent to activities as set out in Article 32 of the UNDRIP.

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. 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.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual
impact.

The Mother Earth accord states, in part, in reference to the UNDRIP:

“We insist on full consultation under the principles of “free, prior and informed consent,” from the United Nations Declaration on the Rights of Indigenous Peoples both in the United States and Canada”

National Geographic is carrying a news item that predicts likely cancellation of the tar sands project through not receiving approval from Obama.  This indicates a deadline of 21 February 2012 for the Obama decision.
This situation is notable for many reasons, not the least of which is the invocation of the UNDRIP in the legal issues about the tar sands pipeline—with the United States which of course was one of the four states to oppose the approval of the UNDRIP in the United Nations General Assembly. The United States has since indicated a change in its position on the UNDRIP. [See ths link here] 

The further developments on this situation bear watching, and updates will be posted to this blog from time to time.

Written by Sarah Sargent.