CHAPTER 13 INTERNATIONAL HUMAN RIGHTS, INDIGENOUS PEOPLES, AND EXTRACTIVE INDUSTRIES

• Jurisdiction: United States

Human Rights Law and the Extractive Industries
(Feb 2016)
CHAPTER 13
INTERNATIONAL HUMAN RIGHTS, INDIGENOUS PEOPLES, AND EXTRACTIVE INDUSTRIES^*
James Anaya
Regents Professor
James J. Lenoir
Professor of Human Rights Law and Policy, University of Arizona James E. Rogers College of Law Former UN Rapporteur on Indigenous Peoples
Tucson, AZ
Rebecca Tsosie
Regents' Professor of Law
Sandra Day O'Connor College of Law
Arizona State University
Tempe, AZ

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S. JAMES ANAYA is a Regents Professor and the James J. Lenoir Professor of Human Rights Law and Policy at the University of Arizona James E. Rogers College of Law (USA), where he teaches and writes in the areas of international human rights and issues concerning indigenous peoples. Professor Anaya is a graduate of the University of New Mexico (B.A., 1980) and Harvard Law School (J.D., 1983). Among his numerous publications is his acclaimed book, Indigenous Peoples in International Law (Oxford Univ. Press, 1996, 2d. ed. 2004) and his widely used co-authored textbook, International Human Rights: Problems of Law, Policy and Practice (Aspen, 6th ed. 2011) (with Hurst Hannum and Dinah Shelton). Professor Anaya served as the United Nations Human Rights Council's Special Rapporteur on the Rights of Indigenous Peoples from 2008 to 2014. In that capacity, he examined and reported on conditions of indigenous peoples worldwide and responded to allegations of human rights violations against them, including through country visits and direct contacts with governments. For his work in that capacity, he was nominated for the Nobel Peace Prize. In addition to his academic work, Professor Anaya has litigated major indigenous rights and human rights cases in domestic and international tribunals, including the U.S. Supreme Court, Inter-American Court of Human Rights, and the Caribbean Court of Justice. Among his noteworthy activities, he participated in the drafting of the United Nations Declaration on the Rights of Indigenous Peoples and was the lead counsel for the indigenous parties in the case of Awas Tingniv. Nicaragua, in which the Inter-American Court of Human Rights for the first time upheld indigenous land rights as a matter of international law.

REBECCA TSOSIE is a Regents' Professor at the Sandra Day O'Connor College of Law and the Associate Vice Provost for Academic Excellence and Inclusion at Arizona State University. She is also a faculty affiliate for the American Indian Studies Program and the Mary Lou Fulton Teacher's College. Professor Tsosie, who is of Yaqui descent, joined the ASU College of Law faculty in 1994 and served as the Executive Director of the law school's Indian Legal Program from 1996-2011. She teaches in the areas of Federal Indian law, Constitutional law, Property, Cultural Resources law, Bioethics and Critical Race Theory. Professor Tsosie has written and published widely on doctrinal and theoretical issues related to tribal sovereignty, environmental policy, and cultural rights. Professor Tsosie's current research deals with Native rights to genetic resources. She has worked extensively with tribal governments and organizations, and serves as an appellate judge for the Fort McDowell Yavapai Nation's Supreme Court and the San Carlos Apache Tribe's Court of Appeals. Professor Tsosie received her B.A. and J.D. degrees from the University of California, Los Angeles, and is admitted to practice in Arizona and California. She is the co-author of a federal Indian law casebook entitled American Indian Law: Native Nations and the Federal System.

Introduction

The global development of mineral reserves and fossil fuels (oil, gas and coal) has affected the traditional lands of Indigenous peoples throughout the world. In the 19th century and for much of the 20th century, the impacts of resource development upon Indigenous peoples were treated as a domestic issue by the various nation-states. The applicable law and policy of the respective nations governed whether or not Indigenous rights were legally recognized. However, in the latter part of the 20th century, advocates of Indigenous rights began to increasingly draw upon the instruments, structures and norms of the burgeoning international human rights system to facilitate recognition of Indigenous peoples' rights to their traditional lands and associated resources. These efforts have led a regime of standards, institutions and practices within international human rights law that are specific to Indigenous peoples and that are generally supportive of their demands.¹

The international human rights system establishes a uniform set of norms, transnational in scope, against which to measure the justice of domestic law, policy, and decision-making. In many countries international human rights norms are directly enforceable within domestic courts. But even when they are not, the norms provide guidance for local behavior that touches on matters of human dignity, and multiple international institutions exist to encourage compliance with the norms and sometime to pressure or shame relevant actors into compliance. The moral and ethical underpinnings of human rights norms are perhaps the strongest impetus for compliance. For Indigenous peoples faced with extractive or other large scale

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development projects, recognition of their human rights can serve to protect them from displacement, environmental degradation, and exploitation. The human rights system also provides a uniform foundation to articulate best practices in relation to the expanding role of multinational corporations and international trade. International human rights law has been a positive force for reform in many institutions that facilitate global development projects, including the World Bank.

This paper will discuss the internationally-recognized human rights of Indigenous peoples and highlight the findings related to extractive industries of one of the authors, Professor Anaya, in his former capacity as the United Nations Human Rights Council's Special Rapporteur on the Rights of Indigenous Peoples. In addition, the paper will describe current best practices as indicated by industry guidelines, including those adopted by the International Council on Mining and Metals. The paper offers an overview of the most salient features of international human rights law in this context, as well as a set of recommendations for the future. Appended to the paper is the full final report on extractive industries of the U.N. Special Rapporteur, which should be read in order to secure a deeper understanding of the issues and recommendations identified in this paper.

I. International Human Rights Instruments Concerning Indigenous Peoples

A. The UN Declaration on the Rights of Indigenous Peoples

Responding to more than two decades of advocacy by indigenous peoples and their supporters, in 2007 the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples by vote of an overwhelming majority of UN member states.² The United States, Canada, New Zealand and Australia cast the sole dissenting votes, arguing that recognizing robust land and self-determination rights for indigenous peoples in the terms expressed in the instrument would be potentially destabilizing. However, all of these countries have since reversed that position and have expressed political support for the Declaration and its precepts. The United States Department of State issued a position paper on this topic in 2010 after President Obama expressed support for the Declaration.³ That paper describes the Declaration's 46 Articles as being in line with the United States' efforts to improve relations with federally-recognized Indian tribes and to strengthen protections for their rights.

Resting on a broad consensus of the international community, the Declaration on the Rights Indigenous Peoples represents a new model of relations with indigenous

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peoples that rejects oppressive patterns of the past. And it stands at the leading edge of an identifiable regime of international human rights law concerning indigenous peoples that is linked to multiple other instruments and sources.

The Declaration on the Rights of Indigenous Peoples represents a historic innovation in that it affirms the collective rights of Indigenous "peoples" as such, and not just the rights of individuals who are indigenous. It proclaims that "indigenous individuals and peoples are equal in value and dignity to other individuals and peoples,"⁴ and that "All indigenous peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social, and cultural development."⁵ The Declaration calls for "control by indigenous peoples of developments affecting them and their lands, territories and resources."⁶ The 46 articles of the document build on a framework for validating this central premise of self-determination, and among those most relevant for extractive industries are the following.

Article 10 provides that Indigenous peoples shall not be forcibly removed from their territories. Articles 11, 12 and 13 protect the rights of indigenous peoples to maintain and revitalize their cultural traditions, as well as their right to transmit those practices to future generations. Because Indigenous peoples are land-based cultural groups, the practice of their religions may entail the need to protect sacred sites. To the extent that mineral development jeopardizes the integrity of a sacred site, this may violate provisions of the Declaration. In fact, Article 25 of the Declaration recognizes that Indigenous peoples have the right to strengthen their spiritual relationship with their traditional lands, waters and other resources, and to uphold their responsibilities to future generations in this regard. Indigenous peoples' cultural survival depends upon their ability to...