Anaya to focus on extractive industries' "catastrophic" effect on indigenous peoples

The UN official who slammed Australia over the Intervention and other human rights violations says extractive industries are a major concern of indigenous peoples all over the world and will be a major focus of his work in the remaining three years of his mandate.

Presenting his third report to the General Assembly on 17 October, the Special Rapporteur on the rights of indigenous peoples, Professor James Anaya, a native American, wrote that he had observed “negative, even catastrophic, impact of extractive industries on the social, cultural and economic rights of indigenous peoples”.

He intends to launch an online consultation forum organised around issues related to extractive industries, where indigenous peoples and others can submit information on their experiences and respond to specific questions.

His report states on this issue:

“In numerous country-specific and special reports, and in my review of particular cases, I have examined various situations in which extractive industry activities generate effects that infringe upon indigenous peoples' rights.

“I have observed the negative, even catastrophic, impact of extractive industries on the social, cultural and economic rights of indigenous peoples. I have seen examples of negligent projects implemented in indigenous territories without proper guarantees and without the involvement of the peoples concerned. I have also examined in my work several cases in which disputes related to extractive industries have escalated and erupted into violence. I have seen that, in many areas, there is an increasing polarization and radicalization of positions about extractive activities.

“In my view, a lack of common understanding about key issues related to extractive industries and about applicable standards, among all actors concerned, is a major barrier to the effective protection and realization of indigenous peoples' rights in this context."

Significant legal and policy gaps and lack of coherence in standards

“Additionally, I have observed significant legal and policy gaps and lack of coherence in standards related to extractive industries in countries across all regions.

“My work over the first term of my mandate has demonstrated to me that there is need for change in the current state of affairs if indigenous rights standards are to have a meaningful effect on State and corporate policies and action as they relate to indigenous peoples. An initial step towards such change would be the establishment of a common understanding among indigenous peoples, governmental actors, businesses enterprises, and others. Without such understanding, the application of indigenous rights standards will continue to be contested or ignored, and indigenous peoples will continue to be vulnerable to serious abuses of their individual and collective human rights.

“Thus, I have determined that the issue of extractive industries will be a major focus of my work through the remainder of my mandate.

“Towards this end, over the next approximately two and a half years, I will endeavor to hold a series of expert meetings and consultations with indigenous peoples, States, and business enterprises, in regions throughout the world. In addition to this, I intend to launch an online consultation forum organized around specific questions or issues related to extractive industries. Through this forum, indigenous peoples and others will have the opportunity to submit information on their experiences with extractive industries, as well as to respond to specific questions.

“I will listen carefully and draw extensively on views and experiences that all stakeholders share with me through this process. In addition, I will gather and analyze empirical information on specific examples of natural resource extraction activities affecting indigenous peoples during my ongoing work examining cases of alleged human rights violations and in carrying out country visits.”

Anaya’s report sets out his worldwide activities monitoring the situation of indigenous peoples and promoting steps to improve their conditions since he started as Special Rapporteur in May 2008.

“As I note in my written report, my activities fall into four interrelated areas: these are promotion of good practices; reporting on country situations; examination of cases of alleged human rights violations; and thematic studies.

“With respect to the promotion of good practices, at the request of indigenous peoples, Governments and international institutions, I have worked to advance legal, administrative and programmatic reforms at the domestic and international levels in the area of indigenous rights. I have engaged in this work on an ongoing basis, and have travelled to several countries to assist indigenous peoples and Governments in this regard. For example, I travelled to Ecuador to offer input on a law being developed to coordinate the state and indigenous justice systems. Also, I recently visited Suriname and provided orientation on the measures needed to secure the land and resource rights of indigenous and tribal peoples in the country, in light of binding decisions by the Inter-American Court of Human Rights.

“Regarding my work reporting on the situation of indigenous peoples in specific countries, since the start of my mandate in May 2008, I have visited and issued reports on Brazil, Nepal, Botswana, Australia, the Russian Federation, the Sápmi region (that is, the traditional territory of the Sami indigenous people) of Norway, Sweden and Finland, the Republic of Congo, and New Caledonia. I have also conducted follow-up visits to Chile, Colombia and New Zealand to evaluate the implementation of recommendations made by my predecessor.

“Future confirmed visits include Argentina in November 2011 and the United States in 2012."

Daily reports of violations of the rights of indigenous peoples

“Additionally, on a daily basis I receive allegations of violations of the rights of indigenous peoples in specific cases and often, in response, communicate my concerns about the allegations to the Governments concerned. In some cases, I have visited the countries involved and issued reports with observations and recommendations. I have issued in depth reports, for example, on the situation of indigenous peoples affected by mining projects in Guatemala, on hydroelectric projects in Costa Rica and Panama; and on the circumstances surrounding the violent conflict in Bagua, Peru between police and indigenous people who were protesting natural resource extraction laws and policies in that country.

“I have focused on issues that are of common concern to indigenous peoples across the globe and that arise in all aspects of my work. In this connection, my reports to the Human Rights Council have examined the significance of the United Nations Declaration on the Rights of Indigenous Peoples, the duty of States to consult with indigenous peoples and the responsibility of corporations to respect human rights when engaging in activities that affect indigenous peoples.

“My report on the duty to consult explains this duty's normative grounding in United Nations and regional human rights instruments. I also address the circumstances in which it is necessary to obtain the free, prior and informed consent of indigenous peoples prior to moving forward with an initiative, and measures that States can take to build confidence and trust in consultation procedures.

“My report on corporate responsibility discusses the due diligence that corporations must exercise when engaging or planning activities that affect indigenous peoples. This includes: identifying whether and how indigenous peoples may be affected; respecting indigenous peoples rights to land, territories and natural resources; carrying out impact studies; and establishing mitigations measures and benefit-sharing.

“Building on this previous thematic work, this year I devoted part of my annual report to the Human Rights Council to providing preliminary observations on the issue of extractive industries operating in or near indigenous peoples' territories.

“Although I am encouraged by positive developments in many places, I remain concerned about the reality of ongoing struggles and violations of indigenous peoples' rights throughout the world.

“Through my work, I hope to help achieve the future envisioned by the General Assembly when it adopted the Declaration on the Rights of Indigenous Peoples in 2007, a future in which indigenous peoples' distinct identities and cultures are fully valued, and a future in which they have the opportunity to control their own destinies, under conditions of equality, within the broader societies in which they live.”

Professor Anaya 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 Tingni v. Nicaragua, in which the Inter-American Court of Human Rights for the first time upheld indigenous land rights as a matter of international law.

(Source text provided by Les Malezer)