Environmental rights of indigenous peoples under the Alien Tort Claims Act, the public trust doctrine and corporate ethics, and environmental dispute resolution.

• Author: Cohan, John Alan
• Position: Multinational energy projects

1. INTRODUCTION. GLOBALIZATION AND EMERGING ETHICAL PRINCIPLES OF MULTINATIONAL ENERGY PROJECTS AND INDIGENOUS PEOPLES

   Indigenous peoples have become the subject of significant attention within the environmental movement. This article will discuss the emerging notion of environmental human rights of indigenous populations. This article will develop the thesis that international law now recognizes environmental human rights as a norm for all peoples and, as such, multinational corporations should include indigenous peoples as legitimate stakeholders in negotiations over the utilization of natural resources in developing countries.

   There are many virtues in globalization. Globalization promises to increase the flow of ideas and technology, raise standards of economic opportunities, raise the level of consumer welfare and dissipate hostilities across borders by joining nations together in a spirit of cooperation over common goals. Globalization requires U.S. multinational corporations to establish comprehensive approaches to global ethics. One of the common criticisms of globalization is the hegemony imposed by multinational corporations in the exploitation of natural resources of developing countries. Globalization can induce firms to go abroad to evade their own norms, thus undercutting fundamental principles that form their own nation's economy. For instance, when Wal-Mart makes deals in China, it may avoid U.S. taxes, evade costs of a cleaner environment, hire sweatshop child labor to make clothing, and so on. (1) Some think globalization, if unchecked, will result in social disintegration and political instability. (2)

   There is an emerging view that globalization involves much more than trade and commerce, ushering in a new category of human rights which extends to issues such as individual identity, sympathies and aspirations. (3) Globalization involves a need to understand and absorb the perspectives and experiences of people from distinctly different cultures and to avoid parochialism, the tendency to see all issues and evaluate all norms through the lens of one's own culture.

   The energy problems of the world are of a large magnitude and create deep concern. The oil industry is facing challenges in an effort to find new deposits to satisfy a world dependent on oil and to pursue overseas projects that are marketed as "environmentally friendly." Recent oil industry publications advise its members to be more "community-conscious" by entering into contracts to benefit the local population and not just the host government. (4)

   The availability of tort claims under the Alien Tort Claims Act ("ATCA") (5) is a drastic but increasingly available remedy to adjudicate environmental damages claimed by foreigners for multinational projects conducted abroad. Protracted disputes and litigation are the inevitable result when a multinational company seeks to exploit foreign resources without seeking the consensus of indigenous peoples whose lives and cultures would be impacted--as illustrated in a case study of the U'wa peoples of Colombia, as well as with still-pending litigation involving indigenous peoples of Ecuador and Peru in Maria Aguinda, et al., v. Texaco. (6)

   An emerging sense of ethical norms as discussed in this article suggests that multinational companies may want to adopt the model discussed in this article for resolution of environmental disputes with indigenous peoples prior to implementation of projects. This can be an enlightened means to reconcile the economic interests of multinational companies with the cultural interests of both the indigenous peoples and the foreign governments that are seeking to utilize their natural resources.

2. DEFINITION OF "INDIGENOUS PEOPLES"

   No agreed-upon definition of the term "indigenous peoples" exists. The term "indigenous peoples" usually refers to those people and groups descended from original populations of a given country. Most definitions agree that indigenous peoples descend from pre-colonial inhabitants, that they have a close connection to traditional lands and other natural resources, and that they maintain a strong sense of cultural, social, economic and linguistic identity. (7) Indigenous peoples include native peoples, tribal peoples, aboriginals, and "first nations." (8)

   From 300,000,000 to 357,000,000 indigenous people live in seventy-five countries and make up about six percent of the world's population. (9) Indigenous peoples are diverse, from the Maaori of New Zealand to the U'wa of Colombia to pastoral nomads in the mountains of Afghanistan. Some commentators claim that indigenous peoples make up the single most disadvantaged set of populations in the world today. (10) Indigenous peoples are isolated socially and have managed to preserve their traditions in spite of being incorporated into countries dominated by other cultures. (11)

   According to the Independent Commission on International Humanitarian Issues, four elements are included in the definition of indigenous peoples: (1) pre-existence; (2) non-dominance; (3) cultural difference; and (4) self-identification as indigenous. (12)

   The World Bank's Operational Directive on Indigenous Peoples says that no single definition can cover the totality of indigenous peoples, but stresses the following characteristics: (1) close attachment to ancestral territories and natural resources; (2) self-identification and identification by others as members of a distinct cultural group; (3) possession of an indigenous language, which is often distinct from a national language; (4) presence of customary social or political institutions; and (5) subsistence-oriented production systems. (13) Of course, in many societies indigenous peoples do not meet all these criteria. In Africa, for instance, access to wildlife is restricted by the state, and Asian and Native American indigenous peoples have to a large extent adopted market-oriented production systems. But suffice it to say that indigenous peoples generally have ethnic, religious and linguistic traits that are different from the dominant groups in their countries, and as a rule they strive to maintain and are proud of their cultural identity that, so often, is "indigenous to" to their ancestral lands.

   Issues Facing Indigenous Peoples and Why They are Cause for Concern

   This section will discuss the social issues and challenges facing indigenous peoples in general and explore the contours of their special needs.

   Sociological and Cultural Issues Involving Indigenous Peoples

   Many indigenous groups lack political power in the nation in which they reside. A major reason for this is that many indigenous peoples were treated by colonial governments as "wards of the state," with no legal rights to participate in political decisionmaking or to control their own futures. (14) Presently, the Indians of Brazil are designated in the Brazilian Civil Code as under the tutelage of the state and, as such, are legally considered minors. Thus, they are neither allowed to own land or to undertake legal activities on their own behalf. (15)

   Indigenous peoples have increasingly been forced to go along with state policies that encroach upon their lands or disrupt the ecological equanimity of the remote areas in which they usually live. Oil exploration has a major deleterious impact on the environment of indigenous peoples and on their traditional way of life. (16) For indigenous peoples the risks to exposure to environmental damage can result in not only harms to their health, but also to their livelihood and well-being because their food, drink, bathing, and cultural rituals are all intricately connected to the land. (17) Thus, corporate decisions to proceed with oil exploration projects affecting indigenous habitats seriously undermine the ability of indigenous peoples to survive as a culture.

   Indigenous peoples usually exercise effective dominion over a certain territory, and adjacent indigenous groups generally respect that territoriality. Usually indigenous peoples are able to maintain their dominion against encroachment by the dominant society. (18)

   In some cases the dominant culture may work to suppress or stifle concerns of the indigenous peoples on the premise that the dominant or majority culture is superior or has a broader societal stake. (19) The dominant society may try to acculturate or assimilate the indigenous peoples without their consent. (20) Indigenous peoples generally, by definition, do not want to be assimilated into the dominant culture or even that of other indigenous groups, nor want to have their cultural identity suppressed, or their land and resource based traditions denied or denigrated. The dominant culture may be convinced that because the indigenous cultures are savage and heathen, this gives it the right to "look out for" them and speak for them.

   The idea of there being an intrinsic value to the cultural identity and diversity of peoples has entered mainstream public policy in the United States and elsewhere. "Among the important values that are embraced by enlightened societies and now featured in international human rights law is the value attached to the integrity of diverse cultures." (21)

   The interest in cultural integrity necessarily entails a different regard for those groups within society. As Professor Anaya points out:

   Taos Indian Pueblo, a culturally distinctive community of longstanding and continuing profound significance to its members, is clearly valued within the larger society different from the Taos ski club. Indeed, one can easily observe that, on grounds of cultural integrity, we tend to attach greater importance to groups that comprise or generate distinctive cultures more than to other types of groups. Taos Indian Pueblo is understandably considered a more important nucleus of human interaction than the ski club. (22) The growing recognition of the importance of cultural integrity justifies special respect and...