MICLA

McGill Research Group Investigating
Canadian Mining in Latin America

Indigenous Peoples

Annotated Bibliography >

by Tesia Wood

Indigenous Peoples and Mining

An Overview

Introduction

The United Nations Permanent Forum on Indigenous Issues has posited that a majority of remaining global natural resources lie within indigenous territories[1]; it has therefore been estimated that Extractive Industries (EI) have up to 50% of their projects operating on or near indigenous lands. While industry proponents emphasize the material benefits of mining (including greater economic independence, and employment opportunities within local economies), there is a need to investigate the extent to which extraction projects assist or undermine the survival of indigenous communities. Local tensions between indigenous peoples and EI often reflect broader conflicts regarding the international indigenous rights movements, national jurisdiction promoting development, and industry interests. It is within this context that interactions between EI and indigenous communities must be understood as a multidimensional issue, where  problems addressed in isolation are often, insufficient.

This paper will attempt to understand instances of conflict that have arisen between indigenous communities and the EI, by providing an overview of issues identified by indigenous, corporate, governmental, and civil societal bodies assessing the impacts of mining on indigenous cultures. The discussion begins with a brief introduction to the International Indigenous Rights Movement, which highlights the mobilization of indigenous peoples in Latin America in the latter part of the 20th century, a trend linked in time to the adoption of neo-liberal regimes and subsequent influx of transnational mining corporations to the region. The focus then shifts to a review of key issues relating to indigenous peoples and the mining industry: land rights and claims; the debate over Free, Prior, and Informed Consent; and the efficacy of contractual Impact Benefit Agreements. The international policies responsible for regulating mining operations in indigenous territories will be referenced throughout. This paper does not attempt to provide an exhaustive analysis of any one of the topics addressed, but instead stands as an aid for further research on the subject.

 

INDIGENOUS MOVEMENTS

The transnational indigenous rights movement emerged in the latter half of the twentieth century due to a global recognition of the marginalization of indigenous peoples through the experiences of colonialism and economic modernization. Territorial displacement and cultural assimilation have been a reality for indigenous peoples around the world since ­­­early periods of imperial expansion and conquest. However, it was not until after World War II that the global political climate proved conducive to an international mobilization of indigenous peoples lobbying for their rights (Niezen 2003, 40). Niezen considers four conditions of the post-war era that were responsible for this global shift: [1] greater international interest in protecting minorities following the wars on fascism; [2] processes of decolonization and subsequent demands by oppressed groups for the right to ‘self-determination’; [3] the evident failure of cultural assimilation practices; and [4] the rise in the indigenous ‘middle-class’ and civil society (particularly through the presence of NGOs) (2003, 40-42). The indigenous rights movement is unique in that it is based on an awareness of international historical grievances rather than isolated regional or ethnic struggles. It has thus gained momentum through the dramatic expansion of transnational alliances and communication technology available throughout the 1960s and 1970s (Niezen 2003 30). The movement has essentially formed a global indigenous ‘identity’ that is deeply entwined with universal human rights language, and is predicated on the ability to share experiences (largely through participation in international forums[2]), create transnational alliances,[3] and demand self-determination.

The drafting of a declaration recognizing the rights of Indigenous Peoples began in 1985 by the United Nation’s Working Group on Indigenous Populations.[4] Nevertheless, it was not until 2007 that the General Assembly formally adopted the ‘United Nations Declaration on the Rights of Indigenous Peoples’ (UNDRIP) in Resolution 61/295. The Declaration, which consists of 46 articles and a preamble, explicitly acknowledges historic injustices suffered by indigenous groups, and protects their rights to self-determination, access to traditional lands and resources, and processes of Free, Prior, and Informed Consent. As will be discussed below, claims to such rights stand in contraposition to the activities of the Extractive Industry.

The rapid extension of transnational mining corporations to Latin America paralleled a continent wide implementation of neoliberal policies throughout the 1980s. As their primary objective was to spur economic growth, these reforms have favoured capital enterprises and encouraged foreign direct investments that benefit economic development on a national level. Reductions in social expenditure, and growing attempts of foreign extractive companies to obtain the rights to land and resource development have led many indigenous groups to critique the implementation of neoliberal regimes. Due to pressures from the IMF and World Bank, the 1980s saw the mass adoption of neoliberal economic reforms across the continent as an attempt to “resolve [a] fiscal, legitimacy, and governmentability crisis” (Jackson 2005, 552). These policies, which are generally characterized by political decentralization, market liberalization, and structural adjustment programs, have had direct implications for indigenous peoples throughout Latin America. As explained by Brysk, indigenous peoples were especially affected “through cuts in social programs, changes in rural property relations, privatization of public services… and increased state openness to the presence of multinationals in indigenous territories [emphasis added]” (2000, 149). The interests of foreign owned corporations to develop indigenous lands have therefore, both incited demands for the protection of international indigenous rights, and unified indigenous groups in opposing the economic and resource development bias associated with neo-liberal policies.

 

LAND CONFLICTS

The right to govern traditional territories, and the unique relationship held with their lands are two distinguishing characteristics of indigenous communities that, although not uniformly protected by national legislation,[5] are recognized within international law. This ‘deeply spiritual connection’ was first acknowledged within the United Nations by Special Rapporteur, Jose Martinez Cobo[6] in 1983, and later elaborated on by Erica-Irene A. Daes who posited that, “the gradual deterioration of indigenous societies can be traced to the non-recognition of the profound relationship … [they] have to their lands” (Daes 2001, 9). In the UNDRIP, articles 25-30 are dedicated to the protection of rights to “lands, territories, and resources which they have traditionally owned, occupied or otherwise used or acquired” (UNDRIP 2007, Article 26).  Land rights are given significant attention in the document because, as the current UN rapporteur on indigenous peoples James Anaya explains, the increased focus on ‘under-developed’ regions that overlap with indigenous territories (often sites of resource extraction) present “one of the major threats to the physical and cultural survival”  (Anaya 2009, 69) of indigenous peoples.  Although it is not specified in the Declaration, Anaya explains that the rights of indigenous peoples to resources referenced in Article 26 only applies to surface, and not to subsoil or mineral resources (Anaya 2009, 70). It is article 32, therefore, that is most crucial in a discussion of mining, as it explicitly states that indigenous peoples must give their free, and informed consent prior to any project that seeks to exploit mineral resources.

According to Daes, the majority of conflicts involving indigenous peoples and their lands have stemmed from either the failure of states to recognize indigenous rights to their territories, or the presence of discriminatory laws and policies affecting their relations to lands (Daes 2001).  Mining operations, as they involve the physical exploitation of land, can alter generations of local social processes that are dependent on the continuity of the natural environment. EI projects thus, pose several threats to the ability of indigenous peoples to sustain a healthy relationship with the environment: ecosystems and water sources risk degradation, social tensions might divide the community, and projects may force the displacement of entire indigenous groups from their territories. Responses to a 2011 United Nations issued questionnaire[7] identify prevailing concerns of corporate, governmental and indigenous bodies assessing the impacts of EI operating on or near indigenous territories. Issues identified include: the loss of indigenous territorial sovereignty, detrimental impacts on subsistence-based economies, threats to indigenous peoples’ cultural survival, lack of adequate compensation for forced relocation,[8] female disempowerment, and a broad uncertainty over consultation procedures (Anaya 2011). There have been attempts to mitigate the most negative impacts of EI operations on indigenous lands with revised policies like the World Bank Operation Policy 4.12,[9] as it explicitly addresses the effects relocation can have on the maintenance of cultural identities. However, Anaya maintains that “in its prevailing form, the model for advancing with natural resource extraction within the territories of indigenous peoples appears to run counter to the self determination of indigenous peoples in the political, social, and economic spheres” (Anaya 2011, 18).

 

FPIC

Whether indigenous peoples have the right to exercise Free, Prior, and Informed Consent[10] (hereafter referred to as FPIC) with regards to extractive industry projects, is a heavily contested subject within international law, civil society, and industry governing bodies. FPIC, as explained in OXFAM’S Guide to FPIC, refers to indigenous peoples’ right “to give or withhold [emphasis added] their free, prior, and informed consent to actions that affect their lands, territories, and natural resource[s]” (Oxfam 2010, 2). Although FPIC has been widely referenced within international agreements,[11] its practical implementation is perpetually hindered by concerns over ‘consent’ being used as a project veto.

Rights to consultation (as opposed to consent) prior to the implementation of mining projects on indigenous territories are largely accepted in corporate mandates and international financial institutions’ policy guides.[12]  These policies have been issued in response to demands for greater indigenous participation within resource extraction, however, they do not allow for projects to be withheld on account of a community-based decision. The extent to which community consultations and compensation agreements are satisfactory substitutes for consent rights is a point of contention between international rights law and extractive industry policy. Both the International Council on Mining and Minerals (ICMM) and Prospectors and Developers Association of Canada (PDAC) express commitments to ensuring their members include indigenous peoples in decision making processes, engage in consultation procedures, maintain transparency, and comply with FPIC when required by domestic law (ICMM 2010; PDAC Principles and Guidance). Neither, however, enforce FPIC where it is not a component of national law. Noting the challenges of applying the ‘concept of consent’ with the various interpretations of FPIC (as either a right to veto or a guiding principle) the ICMM argues that a “blanket endorsement of the right to FPIC is not currently possible” (ICMM 2010, 24). Similarly, the World Bank’s operational policy 4.10 stipulates that borrowers must engage in Free, Prior, and Informed, Consultations, to achieve ‘broad community support’ (World Bank 2005, ­­1). This policy, although revised in 2005, did not adopt recommendations of the World Bank’s internal 2003 Extractive Industry Review (ERI), which concluded that the rights of indigenous peoples to FPIC “at each phase of the project cycle” (Salim 2003, 21) had to be respected if the World Bank was to ensure project compatibility with its goals of sustainable development and poverty alleviation.

Furthermore, according to James Anaya, consultations alone will not satisfy the provision of UNDRIP, and instead, “there is an emphasis on the need for informed consent” (Anaya 2009 68). The reference to FPIC in 5 of the Declaration’s 46 articles was one of several rationales for Canada’s (along with the United States, Australia, and New Zealand) decision to vote against the General Assembly’s adoption of the UNDRIP in 2007 (Aboriginal Affairs and Northern Development Canada, 2010). [13] Although the Declaration has now been universally ratified, its legal status is commonly referred to as “soft law” – an international commitment rather than a legally binding document (Anaya 2009, 79).

In their discussions of FPIC, several scholars have addressed its position as a non-binding normative law,[14] and the ambiguities on an exact definition of ‘consent’,[15] as central barriers to international adherence of the principle. In most cases, the ‘C’ in FPIC is not considered a legal requirement for EI unless domestic laws formally acknowledge it (ICMM 2010, 24).

 

IMPACT BENEFIT AGREEMENTS

Private negotiated agreements between indigenous communities and mining companies emerged in the 1990s to satisfy demands for indigenous participation, and emerging industry CSR (corporate social responsibility) mandates. Often taking the form of Impact Benefit Agreements (IBA), these contracts define employment, business, training, and funding obligations of the company, and are generally developed after the mining corporation has committed to an extraction project (Natural Resources Canada 2006, 33). In Canada, bilateral company-community business arrangements were proposed during the Mining Association of Canada’s 1992 Whitehorse Mining Initiative (WMI) – a conference that encouraged multipartite (aboriginal, industry, and governmental) participation to advance social, environmental, and economic sustainability in the Canadian mining industry (Weitzner 2010).  In the Final Accord of the WMI, 16 principles and goals for the ‘revitalization’ of Canadian mining were presented, including the increased participation of aboriginal peoples in the mining industry. To foster inclusion, the WMI encouraged “mining industry, aboriginal communities, and other interested stakeholders to develop formalized partner relationships” (WMI 1994, 27). IBA agreements, which have become prevalent in Canada,[16] the United States, Australia, New Zealand, and other ‘developed’ countries (O’Faircheallaigh 2010), exchange a set of company provided benefits for the contractual obligation of project support.

The negative impacts of mining projects are only effectively mitigated through IBA agreements when indigenous communities have high negotiation capacities, and open access to information regarding the entire development process.[17] O’Faircheallaigh recognizes that negotiated agreements can offer the potential for indigenous communities to share in the economic benefits of mining through industry funding of: infrastructure, health and education services, raised income levels, and guaranteed employment opportunities (2010). Further, the access to private over public financing allows indigenous peoples autonomy from the state when they can establish independent development goals for their communities (2010, 71). Issues regarding IBAs have arisen, however, when indigenous peoples are not fully informed of agreement provisions, or that signing can impede their ability to contest at later stages of development projects.

O’Faircheallaigh asserts that four areas must be considered prior to indigenous communities entering an agreement: [1] their ability to sue, object governmental project approval, and access other components of the judicial system may be compromised when they are under contractual obligations to support the project; [2] as most IBAs include confidentiality clauses, the ability to lobby through media outlets and apply public pressure are constrained; [3] the nature of the relationship between indigenous communities and mining companies may change when risks to a company’s reputation are reduced by confidentiality agreements; and [4] state budgetary allocations may decrease when indigenous communities obtain funding from private sources (2010). Fidler and Hitch assert further, that negotiated agreements can become a “proxy for lack of sufficient regulatory governance” (2009, 6), and note the growing tendency of the Canadian government to assume that Crown obligations to consult[18] are satisfied through private contractual agreements (2009). While IBAs can ensure indigenous peoples have access to economic benefits, and enforce mining companies legal accountability to communities, they also can reduce communities’ access to judicial and political processes once signed. Indigenous groups, therefore, must be fully informed prior to the signing of a contractual agreement in order for it to be an adequate representation of their project consent.

 

Conclusion

Mining operations within indigenous territories, although offering the potential for raised standards of living through economic returns, also have the potential to perpetuate social, cultural, and economic marginalization, especially when the authority of international rights law, and indigenous claims to sovereignty are undermined. Conflicts surrounding access to land and territorial claims, consultation versus consent procedures, and the increase of private contractual agreements between indigenous groups and mining corporations have implications not only for the continuity of indigenous cultural life. They also indicate a disjunction between stipulated rights and industry practice. Although the past decade has increased the global awareness of indigenous peoples’ rights through the International Indigenous Rights Movement, the UN Declaration on the Rights of Indigenous Peoples, and the adoption of indigenous peoples’ concerns into industry governing policies, ensuring these principles are actively applied in mining practice presents significant challenges. It is evident therefore, that when these issues are not directly addressed and monitoring policies are not strictly enforced, extractive industries can pose a threat to already vulnerable communities and in some instances, create further barriers against the fulfilment of indigenous rights.

 


 

 


Bibliography

[1] UNPFII. (2007). Session 6 factsheet: Indigenous Peoples – Lands, Territories, and Natural Resources. United Nations.

[2] See: United Nation’s Permanent Forum on Indigenous Issues (UNPFII) Report on the First Session for forum objectives in Section A of the bibliography

[3] The idea of transnational alliances has been adopted by Canada’s International Development Agency (CIDA) with their International Indigenous Participation Program (IPPP) which funds projects involving cooperation between Canadian and Latin American indigenous groups; see Section A of bibliography

[4] The Working Group on Indigenous Populations, a sub committee of the Commission on Human Rights, ceased to exist in 2006; it has been replaced by the UNPFII, a sub commission of the Economic and Social Council

[5] Although this paper has not attempted to examine legislation regarding indigenous land rights at a national level in Latin America, this would be a useful area for further research. A helpful starting point is at the Inter-American Development Bank’s Indigenous Legislation Data Bank, available at http://www.iadb.org/Research/legislacionindigena/leyn/index.cfm

[6] See Jose Martinez Cobo’s Study of the problem of discrimination against Indigenous Populations, in section A of the bibliography

[7] See: Anaya 2011 ‘Extractive Industries Operating within or near indigenous territories’ in section C of bibliography

[8] For information on current policies regarding forced relocation and compensation requirements see World Bank OP 4.12 “Operational Policies: Involuntary Resettlement” in section C of bibliography

[9] Although this policy outlines the need for broad community support prior to relocation, it does not explicitly require community consent

[10] See OXFAM’s Guide to FPIC, 2010 for a detailed explanation on each of the four elements (free, prior, informed, consent) of FPIC. Section D of bibliography

[11] See: Committee on Elimination of Racial Discrimination General Recommendation No.23, 1991; International Labour Organization Convention 169, 1989; and the United Nations Declaration on the Rights of Indigenous Peoples 2007 in sections B and D of bibliography

[12] See: ICMM Good Practice Guide, 2010; Inter-American Development Bank Operation policy on Indigenous Peoples, 2006; World Bank Operational Policy 4.10, 2005 in section F of bibliography

[13] Other concerns cited in Canada’s Official Statement include: provisions dealing with lands, territories and resources; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties (Aboriginal Affairs and Northern Development Canada, 2010)

[14] See: McGee 2009; Szablowski 2010; Weitzner 2010 in Section D of bibliography

[15] See: Szablowski 2010

[16] According the Mining Association of Canada, there have been over 170 agreements between Aboriginal communities and mining companies in Canada

[17] For information on the various forms IBA agreements and guides to the negotiation process, see: Gibson and O’Faircheallaigh IBA Toolkit, 2010. Section E of bibliography.

[18] See: Minister of the Department of Indian Affairs and Northern Development Aboriginal Consultation and Accommodation, 2011. Section D of bibliography