Extractive Industries, Indigenous Peoples' human rights, and Parliaments

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Human Rights Impacts of Extractive Industries on Indigenous Peoples

Widespread human rights violations associated with extractive projects on the lands of Indigenous peoples pose a serious challenge to sustainable development. As an expanding sector and a potentially important contributor to GDP, extractive industries are at the centre of many countries’ development strategies. However, while benefits from extractive projects accrue primarily on national and international levels, local communities bear most of the burdens involved. While extractive revenues can promote progress on some Sustainable Development Goals (SDGs), pervasive inequality across the extractive value chain jeopardizes progress on others and undermines the Agenda 2030 pledge to ‘leave no one behind’. Indigenous peoples are often under- or unrepresented in the political institutions that govern extractive industries and therefore have limited collective bargaining power to ensure the enforcement of their human rights. Parliaments are constitutionally mandated to represent all segments of society, making them uniquely positioned to safeguard the human rights of Indigenous peoples across the extractive value chain. 

A large share of extractive projects operates on the lands of Indigenous peoples, and such activities are associated with violations of a range of human rights. As noted in a Report to the Human Rights Council A/HRC/24/41 2013 of former Special Rapporteur on the rights of indigenous peoples, James Anaya: “The worldwide drive to extract and develop minerals and fossil fuels (oil, gas and coal), coupled with the fact that much of what remains of these natural resources is situated on the lands of indigenous peoples, results in increasing and ever more widespread effects on indigenous peoples’ lives. As has been amply documented in previous reports by the Special Rapporteur (see, for example, A/HRC/18/35, paras. 30-55), indigenous peoples around the world have suffered negative, even devastating, consequences from extractive industries.

Human Rights

Indigenous peoples enjoy the complete protection of their human rights as enshrined in the Universal Declaration of Human Rights. Additionally, Indigenous people’s rights are specifically protected by the 1989 International Labor Organisation Treaty 169, ratified by 22 countries, and the 2007 UN Declaration of the Rights of Indigenous Peoples (UNDRIP), ratified—but not implemented—by all member states. Following Indigenous peoples’ active engagement in the consultation process leading up to the adoption of the Agenda 2030 and the SDGs, the Agenda 2030 mentions Indigenous peoples several times. Because the Agenda 2030 favours a rights-based approach to sustainable development (156 out of 169 targets are strongly linked to human rights, with 73 targets being strongly linked to UNDRIP), enforcement of Indigenous peoples’ human rights is a precondition for the achievement of the SDGs.

Violations of indigenous peoples’ human rights associated with extractive projects pose a central challenge to the sustainability of the sector, and to the achievement of the sustainable development goals overall. Below is an overview of some of the most common barriers posed by extractive industries to Indigenous peoples’ exercise of their human rights.

The right to self-determination. UNDRIP affirms that “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.” It further asserts the right of Indigenous peoples to give their free, prior and informed consent to decisions that impact their lives. This consent needs to be acquired across all stages of the extractive value chain, from the decision to extract to implementation and benefits-sharing. In practice, this right is scarcely respected, and in cases where consultations do take place there have been widespread reports of coercion and manipulations. UNDRIP’s assertion that consultations should take place through Indigenous peoples’ own representative institutions is also frequently disregarded.

Forced displacement. Extractive projects often require the development of vast land areas, including infrastructure projects in surrounding areas to ensure access to extraction sites. Often, such projects on the lands of Indigenous peoples force displacement of the communities concerned. UNDRIP maintains that “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.” In many cases, this right is not respected.

Rights to lands and resources and the right to property. UNDRIP asserts that Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.Additionally, securing tenure rights to land is specifically mentioned in two SDG indicators. Tenure rights to land are often inextricably linked to the exercise of other human rights, such as the right to subsistence, cultural rights, religious rights, and the right to self-determination. In spite of this, Indigenous peoples are often denied the right to lands, territories and resources that they traditionally own or occupy in the undertaking of extractive projects.

Rights to subsistence. The disruption of ecosystems and loss of biodiversity can obstruct access to subsistence, which is inconsistent with UNDRIP’s assertion that “Indigenous peoples have the right (...) to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.”

Cultural rights. UNDRIP states that “Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture”. There are many factors that can contribute to the destruction of indigenous culture. Perhaps most importantly, forced displacement from ancestral lands deprives communities of their cultural reference points, and subsequent relocation to urban areas inevitably entails degrees of forced assimilation.

Religious rights. UNDRIP recognizes that “Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.” When extractive projects restrict or deny access to Indigenous peoples’ religious sites—as in the case of the Dakota Access Pipeline, sited through sacred Sioux lands—they are in violation of Indigenous peoples’ human rights.

Right to life. In extreme cases, Indigenous peoples’ peaceful opposition to projects on their land have been met with violence, torture and killings. While rare, such fundamental human rights breaches do occur and when they do they are often decried by the international community. Still, such acts of violence act as a powerful deterrent for opposition and are in blatant disregard of UNDRIP’s assertion that “Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.”

Parliamentary Action

Parliaments are key for the enforcement of Indigenous peoples’ human rights vis-a-vis extractive industries through their legislative, oversight and representative mandate. While international Free Trade Agreements such as the Trans-Pacific Partnership drastically decrease the ability of national lawmakers to hold extractive companies accountable, mechanisms exist that allow parliaments to safeguard the rights of Indigenous peoples in extractive processes. Parliament can be a vehicle for the inclusion of Indigenous peoples in decision making on specific issues, but it can also help ensure the broader inclusion of Indigenous peoples in the institution.

While UNDRIP was ratified in 2007, few countries have taken the necessary steps to implement it domestically. Two declarations by the Inter-Parliamentary Union—the 2010 Chiapas Declaration and the 2014 Declaration of Santa Cruz de la Sierra—encourage national parliaments to adopt domestic action plans for the implementation of UNDRIP. The IPU reports that only five countries have put in place a National Action Plan.

Representation: Indigenous representation in parliament would contribute to the protection of their human rights as detailed by international conventions. This can be achieved through:

  • Electoral reform can contribute to increased indigenous representation through:
    • Reserved seats, voluntary quota, appointments, exemptions to electoral thresholds, demarcation of constituency boundaries or specific measures to increase Indigenous voting participation
  • Dedicated parliamentary bodies contribute to increased representation by institutionalising an Indigenous voice to parliament and promoting meaningful two-way communication through:
    • Standing committee, ad hoc committee, caucuses, others (mostly commissions)
  • Internal decision making structures allow for increased organisation and therefore greater collective bargaining power trough:
    • Indigenous parliaments (such as the Sami parliament in Scandinavian countries), autonomous regions (as in the case of Nicaragua’s Autonomous Regions of the South and North Atlantic) or indigenous organisations engaging with the state at local, national, regional and international levels (as with Congress of Australia’s First Peoples)

Oversight: Through its oversight function, parliament acts as the watchdog of the policies and politics governing the extractive industries sector. Parliament can ensure that the implementation of programmes and policies by the government is carried out effectively and legally by monitoring government policies and actions, and by actively engaging with the governmental and non-governmental actors involved. This can be accomplished through the numerous oversight tools at the disposal of the parliament, including—but by no means limited to—committee work, the question period, public hearings, parliamentary debates, audit agencies and so on.

  • Enforce veto-rights: when parliaments have veto rights on extractive contracts, they can ensure that a human rights due diligence is performed and that free, prior and informed consent has been obtained. Parliaments can include indigenous people in decision-making on EI through parliamentary procedures. Parliaments can also ensure that indigenous people’s right to consultation is respected, and specifically by ensuring that such consultation is undertaken in accordance with international law.

Law-Making: As in the case of the Philippines’ Indigenous Peoples’ Rights Act of 1997, national parliaments can legislate on Indigenous Peoples’ rights domestically. However, such laws can only meaningfully protect Indigenous peoples’ human rights if supported by robust oversight and accountability mechanisms.

UNDRIP Implementation and National Action Plans: Parliaments are essential to the implementation of UNDRIP. To do so, legislators need to ensure that domestic law is consistent with the UNDRIP framework, and set up National Action Plans for implementation and monitoring. 

 

Written by Erica Borg.