Last night was the launch of a new report on making free, prior and consent a reality for indigenous peoples, authored by Cathal Doyle and Jill Cariño, of Middlesex University law school and Philippine Task Force for Indigenous Peoples Rights respectively, and sponsored by PIPLinks, Middlesex University Law School and ECCR. Indigenous peoples have long been denied these rights, especially by the extractives industry, but 6 years after the UN Declaration on the Rights of Indigenous Peoples (DRIP) and 2 years after theUN Guiding Principles on Business and Human Rights things are changing, albeit unevenly.
In his keynote UN Special Rapporteur James Anaya described the report as “a very important contribution to implementing FPIC and moving forward the debate”. Certainly a lot more movement is needed, but a lot of progress has also been made since indigenous peoples began organising at a transnational level, especially through the UN Working Group on Indigenous Peoples in the 1980s (subsequently replaced by the Permanent Forum on Indigenous Issues; Andrea Muehlebach has written anexcellent article on the Working Groups’ cultural politics). I’m inclined to agree with Anaya, that we’re at an important turning point in the treatment of indigenous peoples: whereas previously the central issue for indigenous peoples was securing rights to self-determination in relation to their lands, territories and resources, increasingly the central issue is designing and implementing policies and mechanisms that will secure these rights in detailed practice. Certainly the devil is always in the detail, and drawing out the differing emphases in the perspectives of indigenous peoples and multinational corporations and therewith the gap between their respective concerns is a key purpose of the report. But the report is also clear on two points. First, indigenous peoples’ right to self-determination is not in itself complicated. It is affirmed by all the major international human rights covenants and responsible bodies and clearly requires that prior consent from indigenous peoples is required before any utility is derived from their lands, territories and resources. Second, the extractives industry is well aware of these facts and by and large is seriously and substantively engaging their responsibility to respect these rights. ICMM, IPIECA and other corporate membership bodies are grappling with how to comply with the clear (and ever-more closely scrutinised) requirements of law, although as the report’s authors make clear, they have serious legacy issues.
Which is where the details become important, and I commend the authors for consulting companies to accurately convey their perspectives. As Doyle explained in his remarks last night, the fact that the report could include consultations with such heavy-hitters as Rio Tinto, Xstrata, or De Beers says something of the distance travelled in the last decade and underlines Anaya’s point about the extent of the “turn” in the treatment of indigenous peoples. Yet the report is also clear that when it comes to quantifying the impacts of proposed extractive projects and establishing the knowledge-base on which FPIC decisions are made, indigenous peoples are the experts and their perspectives and methodologies must be taken seriously.
So it was appropriate that the launch consisted mainly of indigenous representatives giving their perspectives on how FPIC has (or more often has not) worked for them in their respective contexts. Anne Marie Sam, a member of the Lusilyoo (frog) clan from the Nak’azdli First Nation in British Columbia, recounted the disastrous consultations around the Mount Milligan gold and copper mine. After the Lusilyoo countered the mining company’s claim to be expert assessors with their own assessment methodology, they were accused of being “greedy Indians” and of “asking too many questions”. In the end the miners obtained consent from another clan, had this deemed sufficient, and the project is underway, albeit at enormous cost and negligible local benefit. (Sam has written a short account of the process here (download); more background is here and here) . The key lesson drawn by First Nations was that focussing on external processes (ESIAs etc) can distract from working on internal processes like building community cohesion and consensus. Even where there is internal disagreement, local communities usually can agree on the importance of protecting the land.
Brian Wyatt of the National Native Title Council in Australia highlighted two key issues variously raised by all the speakers. The first is that indigenous peoples carry the burden of proof of demonstrating connection to their lands. A legacy of the Mabo judgment, the implication is that they are responsible for demonstrating how they will be impacted if those connections are disrupted. No wonder then the arguments over IA methodologies and calculating suitable compensation. The second is that FPIC is a right belonging to indigenous peoples and also implies the right to say no. In other words, it is not merely another tool available to companies to manage and minimise their risk, a point I have raised elsewhere in relation to due diligence.
All these issues come back to the reports’ starting point that FPIC directly stems from indigenous peoples’ right to self-determination stated clearly in DRIP and the human rights covenants. It is not an optional extra that can be granted or withheld by prevailing interests. Once upon a time this was an activist perspective and was openly challenged by companies and governments alike. These days it is a legal principle with all the compliance requirements and non-compliance risks law entails. It is also why this report is so timely and useful, for indigenous peoples and extractives companies alike.
TWO-DAY ECONOMIC AND SOCIO-CULTURAL RIGHTS (ESCR) TRAINING FOR STAFF OF THE NATIONAL HUMAN RIGHTS COMMISSION(NHRC), ABUJA
This report provides a brief on the Economic & Socio-Cultural Rights training given to staff of the Commission.
The two-day training which took place in Abuja had the following objectives:
- To enhance the capacity of Staff of National Human Rights Commission in their appreciation and understanding of Socio Economic Rights.
- To enhance the capacity of Staff of the National Human Rights Commission in Investigating, Monitoring and Documentation of Socio Economic Rights violations.
- To enhance the capacity of Staff of the National Human Rights Commission to effectively treat complaints arising from ESCR in a manner that will be beneficial to all within the parameters of the Constitution and International Charters.
The training sessions took place between 9.00 am and 5.00 pm daily. Approximately 27 participants were in attendance. Participants were provided hard copies of most of the training topics discussed and e-copies will be sent to them as well.
As part of routine training methodology, trainees were encouraged to discuss challenges they encounter in the course of carrying out their duties as part of the class exercise.
Sessions were vibrant and consisted of interactive discussions, question and answer sessions as well as power-point presentations.
The curriculum deployed took into consideration the wealth of experience trainees already have with a view to enhancing their knowledge of ESCR concepts vis-a-vis the current trend of governance in Nigeria in comparison to global best practices. Topics treated are indicated below:
- History of Human Rights
–Civil and political rights
– Economic Rights
-Indivisibility and inter-dependence of Rights
- The Legal Basis for ESC Rights
– National Laws
- Types of ESC Rights
- Characteristics of ESC Rights
– Progressive Realization
– Core Obligation ( Respect, Protect, and Fufill)
- Content of ESC Rights
- Monitoring Approaches
– Violations Approach
– Progressive Realization Approach
– Core Obligation Approach
– Budget Analysis Approach
- Monitoring Violations of ESC Rights
– Human Rights Education
– Information Gathering & Analysis
– Solution building
Power-point presentations and a robust ESCR training module were used to impart knowledge to participants. The links to both documents are embedded in this report for your perusal.
Challenges encountered by NHRC Staff in the Discharge of Duties
Some of the difficulties participants mentioned included but might not be limited to the following:
- Lack of adequate cooperation from MDAs
- Inadequacy in Remedial measures
- Concrete strategy in the effective discharge of NHRC mandate in national HR Regime
Though the training was a success, two-days might be considered inadequate for the full assimilation of concepts of the breadth and depth of those highlighted within the ESCR principles. Lawyers Alert therefore strongly recommends a follow-up three-day training session which will build on the foundation already laid by this first phase of training in order to consolidate on the milestone attained to this point. Lawyers Alert is willing to work with the management of the NHRC to come up with suitable dates for the proposed training.
Next Steps/Lessons learnt
Rising from the training and flowing from the enhanced knowledge, Participants were of the view that the NHRC at present while doing very commendably, reacts to issues as they arise, as against a more proactive approach in instilling human rights culture in governance especially as regards economic rights.
It is the understanding that going forward, the NHRC would strive to engage in several issues from budgets, poverty reduction, MDGs, employment, housing, education, water, health etc, in order to factor in human rights concerns.
Often policies and various administrative directives from Governmental Agencies are issued and carried out without recourse to human rights standards and the NHRC would pursuant to its mandate endeavor to see to the realization of this.
Lawyers Alert thanks the Executive Secretary for the opportunity to work with the NHRC on this all important assignment and we look forward to working again with your vibrant staff.