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.

Two Tales of the Indian Child Welfare ACt

Two Tales of the Indian Child Welfare Act

There are two stories in the media currently about the Indian Child Welfare Act (ICWA).  One is about a case pending for a decision as to whether it will be heard by the United States Supreme Court. 

The other seems to see relatively less light of day—that of the on-going call to address the high rates of removal of Lakota children in South Dakota. The case pending in front of US Supreme Court  calls for the recognition of the pernicious Existing Indian Family Doctrine in relation to the adoption of a young Cherokee child. (link to brief filed in the US Supreme Court on behalf of the child, birth father and the Cherokee Nation)

 The Existing Indian Family Doctrine allows judges—in their discretion and applying their own standards- to avoid the application of ICWA with a finding that a child is not “Indian enough” to apply ICWA, even though the child meets the application threshold of being an “Indian child” as defined in the Act.   

ICWA is on the one hand  thus presented as the villain—coldheartedly stripping children from the arms of loving parents. The great irony in this presentation is that ICWA was created to prevent just that scenario (albeit with one difference—the parents ICWA is concerned about are those of the child and not of prospective adoptive parents)—the removal of children from their families and communities. The wholesale removal of indigenous children done in the interests of assimilation was to have stopped with the passage of ICWA in 1978. The testimony  in support of the Act makes for harrowing reading.

But even more harrowing is the reality that the removals of children has not stopped. NPR called attention to this with a series aired well over a year ago. There are calls for Congressional inquiry into the practices that result in the removal of so many indigenous children.

  

But instead of outcries against this there instead seems to be a  determined silence about those indigenous parents in anguish and  the injustice of those actions which remove children from their parents and community.

ICWA is an important and forward thinking act. It is as necessary today as it was in 1978. The problems with the Act arise not because of the Act itself, or from any need to abolish it or give any credence to the judicial embarrassment that parades as the Existing Indian Family Doctrine. The problems arise in each instance—that in the pending US Supreme Court case and in South Dakota—when the Act is not adhered to. The problem is not the Act, but in the failure to comply, and perhaps more importantly, with those attitudes that persist in a willful ignorance about the Act which try to legitimize efforts to evade it.

Indigenous and Minority Rights: Call for Papers SLSA 2013

Call for papers
It is not too late to submit an abstract to the Indigneous and Minority Rights Stream in the SLSA 2013 conference. More information is available at this link. http://www.york.ac.uk/law/news/conferences/

The deadline for submitting an abstract in the first call for papers is January 14, 2013. The early bird registration ( with discounted price) deadline is January 28, 2013. Informal inquiries about an abstract submission for the Indigenous and Minority Rights Stream can be sent to Sarah Sargent at Sarah.Sargent@buckingham.ac.uk.

Call for Papers: University of the Gambia Student Law Review

CALL FOR PAPERS UNIVERSITY OF THE GAMBIA STUDENT LAW REVIEW

The University of The Gambia Law Faculty will publish in September 2013 its first Student Law Review. We would welcome submissions from students, academics and law professionals. This is a call for papers with a human rights focus. The first edition will be a special edition on human rights. Please submit a 300 word abstract of your proposed article by and no later than 12.00 midday January 20 2013. The final article will be 5,000 words including footnotes (OSCOLA) and will need to be submitted by 1 May 2013.

Please send abstracts to  Fiona Batt at her email: F.Batt@utg.edu.gm

Calls for Summit and Congressional Investigation into Child Welfare Practices

The forced and unwarranted removal of indigenous children from their family and communities is an assimilative practice that has been decried. In the United States, the law has changed--at least on paper--to prevent the sort of wholesale removal that occured prior to the 1978 passage of the Indian Child Welfare Act.


But compliance with the requirements of ICWA and a lessening of the numbers of children that were removed from their families has been an ongoing fight ever since. It is one thing to change laws, it is another thing altogether to change practice.

For several months now concerns have been raised about child welfare practices in South Dakota. In 2011 NPR ran a report that highlighted the events that gave cause for concern about removal of Lakota children from their families and tribal communities.

In November 2012,a report detailing continuing concerns over child welfare practices was issued by "coalition of tribal directors from the state's nine Sioux tribes"

An executive summary of the report issued by the Indian Child Welfare Act Directors-- "representing six of the nine American Indian tribes in South Dakota"--
can be found here .

Further action took place with a letter sent on December 7 2012 by two US Congressman to the Assistant Secretary for Indian Affairs, which calls for "for Bureau of Indian Affairs summit and a Congressional investigation into the South Dakota Native Foster Care system".

Additional information and ways in which to get involved in this call for action can be found at the website for the Lakota People's Law Project.

It now remains to be seen what response there will be to the Congressmen's requests and the other concerns that have been raised for many long months.

'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.