INDIGENOUS PEOPLES' RIGHTS TO SACRED SITES AND TRADITIONAL CULTURAL PROPERTIES AND THE ROLE OF CONSULTATION AND FREE, PRIOR, AND INFORMED CONSENT

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment
(Apr 2013)
CHAPTER 2C
INDIGENOUS PEOPLES' RIGHTS TO SACRED SITES AND TRADITIONAL CULTURAL PROPERTIES AND THE ROLE OF CONSULTATION AND FREE, PRIOR, AND INFORMED CONSENT
Stuart R. Butzier
Partner, Modrall Sperling Law Firm
Albuquerque
Sarah M. Stevenson
Associate, Modrall Sperling Law Firm
Albuquerque
New Mexico
United States

STUART R. BUTZIER (J.D., University of New Mexico; B.A. English Literature, Grinnell College) is Partner in the Modrall Sperling Law Firm in Albuquerque, New Mexico, where he heads the firm's 23-member natural resources department and chairs its mining and international groups. He has over 23 years of mostly domestic practice experience in the areas of mining and environmental law, including permitting, litigation, governmental affairs, due diligence, and transactional matters. Chambers USA highly recommends him as a leading lawyer in environment, natural resources, and regulated industries, and he has been listed in The Best Lawyers in America and Southwest Super Lawyers since 2008. Several of the matters he has handled have included issues relating to sacred sites, cultural resources, tribal and non-tribal consultations, and other issues germane to the paper topic. He has been a counsel of record in a litigation matter now pending in the New Mexico Supreme Court in which five tribes nominated, and the state of New Mexico listed as a traditional cultural property, a 700-square-mile sacred area comprised of Mount Taylor and its surrounding mesas in New Mexico.

SARAH M. STEVENSON (J.D., M.A., Fordham University; B.A. American Studies/French, Scripps College) is an associate at Modrall Sperling. She graduated magna cum laude from Fordham University School of Law, where she was a Crowley Scholar in International Human Rights. During law school, Sarah participated in the International Human Rights Clinic and authored Indigenous Land Rights and the Declaration on the Rights of Indigenous Peoples: Implications for Maori Land Claims in New Zealand, 32 Fordham Int'l L. J. 298 (2008). Also at Fordham University, she received her M.A. in International Political Economy and Development. For the two years immediately prior to joining Modrall Sperling, Sarah served as law clerk to the Honorable Patricio M. Serna of the New Mexico Supreme Court. She speaks varying levels of French, Hausa, and Spanish, and is a member of Modrall Sperling's International Committee and Appellate Committee.

I. Introduction

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For indigenous peoples¹ around the globe, sacred sites and other traditional cultural properties ("TCP")² are of extreme importance to the preservation of their culture and society. Often, sacred sites and TCPs are part of the natural landscape; and often, in whole or in part, are the site of mineral wealth and locus of development projects by extractive industries. Historically, corporations have proceeded with development projects without due consideration to the importance to affected indigenous peoples of sacred sites, and as a result have caused damage, at times irreparable. In recent years, however, international law, including the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP"),³ and domestic laws in States⁴ around the world recognize an indigenous right to sacred sites. Along with recognition of that right has come sources, including industry standards, requiring States and corporations⁵ to conduct consultation or obtain the free, prior, and informed consent ("FPIC") of affected indigenous peoples prior to commencement of and during development projects that affect sacred sites or TCPs. While the care and diligence prompted by these developments pose economic and operational challenges, respecting and reasonably protecting sacred sites and cultural resources, in cooperation with indigenous peoples and regardless of governmental involvement, should result in decreased uncertainties and litigation costs, improved global image and reputation, better community relations, and preservation of sacred sites for the benefit of indigenous peoples concerned and humankind.

Indigenous peoples' rights to sacred sites and TCPs, like indigenous peoples rights generally, are considered part of international human rights law. Indigenous rights, however, may be considered sui generis because they are based in the customs and traditions of the peoples concerned, rather than an established corpus of positive law.⁶ As sui generis rights, the duties and responsibilities on States and non-State actors to protect and respect those rights must be considered in the specific context of the rights involved. "Protect, respect, remedy" is the United Nations' current framework concerning business and human rights, and provides a useful shorthand description of the outlook corporations should take with regard to sacred sites.⁷ While international human rights law primarily imposes duties on States, an increasing number of international legal norms are being imposed on individuals and corporations, including those in the extractive industries whose business affects indigenous sacred sites. Corporations may be sued in civil lawsuits for violation of indigenous rights, and face barriers to doing business, including license or contract revocations, as well as reputation-based challenges,⁸ when they do not ensure compliance with indigenous rights.

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This paper focuses on the rights of indigenous peoples to sacred sites and TCPs, and how the duty imposed by international and domestic law, as well as other sources, of States and corporations to consult and to seek FPIC is used to protect those rights.⁹ Part II of this paper provides an overview of the right to sacred sites established in international law, the law of the United States, and examples from laws of other countries. Part III reviews legal requirements or voluntary standards to conduct consultation or seek FPIC when rights to sacred sites are concerned. Part IV discusses the various forums in which indigenous peoples may seek to protect their rights to sacred sites when those rights have been violated without consultation or FPIC. In Part V we summarize the difficulties presented by requirements to conduct consultation and seek FPIC when land considered a sacred site or TCP is targeted for development, and offers ideas for successfully analyzing, negotiating, and working with indigenous populations who will be affected by extractive industries development projects.

II. The Rights of Indigenous Peoples to Access, Use, and Protect Their Sacred Sites

This section discusses the rights of indigenous peoples to their sacred sites, reviewing a non-exhaustive body of international covenants and treaties, non-binding international declarations, State laws, and various non-binding guidelines. This discussion necessarily includes mention of indigenous rights to land or territory, as sacred sites often are associated with what may be termed a "cultural landscape."

A. What is a sacred site or traditional cultural property?

International law does not precisely define "sacred site" or "TCP." Both may be identified as cultural resources or cultural heritage, which may be tangible or intangible, and may include geographic locations. Their legal recognition and protection is related to the right of indigenous peoples to self-determination.¹⁰ Certain global instruments attempt to define sacred site. The Akwé: Kon Guidelines for the conduct of cultural, environmental and social impact assessments regarding developments proposed to take place on, or which are likely to impact, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities ("Akwé: Kon Guidelines"), promulgated under the Convention for Biological Diversity, states "sacred site" "may refer to a site, object, structure, area or natural feature or area, held by national Governments or indigenous communities to be of particular importance in accordance with the customs of an indigenous or local community because of its religious and/or spiritual significance."¹¹ The International Union for Conservation of Nature defines "sacred site" as "[a]n area of special spiritual significance to peoples and communities."¹² The World Bank defines "physical cultural resources" as "movable or immovable objects, sites, structures, groups of structures, and natural features and landscapes that have archaeological, paleontological, historical, architectural, religious, aesthetic, or other cultural significance."¹³

The term "traditional cultural property" is related, and is primarily used in U.S. law. A TCP is defined as a property "eligible for inclusion in the National Register because of its association with cultural practices or beliefs of a living community that (a) are rooted in that community's history and (b) are important in maintaining the continuing cultural identity of the community."¹⁴

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Implicit in each of these definitions is the acknowledgment that a corporation or State cannot unilaterally define an indigenous community's sacred site. Of utmost importance in determining whether a site is sacred, or a resource is significantly important to a peoples' culture, is consultation and conversation with the indigenous peoples who may, or may not, have a relationship with specific land or territory, including specific sites or a landscape. It is difficult if not impossible to identify a sacred site without consulting the peoples who may consider a site sacred; even then, the site may be so sacred that it cannot be specifically identified. Additionally, it is important to consider that sacred sites may have certain restrictions on access, or specific protocols that must be followed.

B. International Law

In binding international conventions, non-binding declarations, and guidelines, international law recognizes the right of indigenous...