Laws Needed to Enforce U.N. Declaration on the Rights of Indigenous Peoples: Legal Experts

Date of publication: 
7 November 2013

[Editorial comment – The comments about FPIC not stopping projects below is not necessarily correct as research elsewhere on this site shows a number of cases where it has. Also although it is true, with regard to the first line about governments needing to live up to the provisions of the Declaration, there are countries that have incorporated it into their national legislations, including the Philippines and Bolivia. Implementation is another issue….]

Not a single country in the world is living up to the provisions of the United Nations Declaration on the Rights of Indigenous Peoples, and it’s time for governments to pass laws incorporating the tenets of Free, Prior and Informed Consent that the document is based on, U.S. assistant secretary for Indian Affairs Kevin Washburn and others concurred at a law conference last week.

It’s “not like consultation, but drives the [development] agenda,” said Washburn, Chickasaw, in a keynote address at the conference assessing FPIC’s future, titled “Free, Prior and Informed Consent: Pathways for a New Millennium,” sponsored by the American Indian Law Program at the University of Colorado Law School.

FPIC takes consent to a new level, Washburn said. Under the Declaration, without tribal approval, a given plan shouldn’t proceed, he said, noting that historically Indigenous Peoples may not have consented, but they had no veto power. Now, consent is more than the passive action that formerly placed tribes in a “defensive position,” he said.

Consent is not always legally binding, Washburn continued, and FPIC “needs to be incorporated into U.S. laws,” a position echoed by other speakers at the daylong conference, held on the first day of Native American Heritage Month, November 1. Panels dealt with climate change, resource management and culture, among other topics. Speakers included human rights activists, lawyers and company officials, among them Angela Riley, Citizen Potawatomi Nation of Oklahoma, is director of the UCLA American Indian Studies Center and co-director of the Native Nations Law and Policy Center.

Pawnee author and legal expert Walter Echo-Hawk, spoke as well, signing copies of his latest book, In the Light of Justice: The Rise of Human Rights in Native America and the UN Declaration on the Rights of Indigenous Peoples (Fulcrum, 2013).

While Indigenous Peoples’ traditional abilities and age-old resources will play a role in future global development, at present unfettered development may be inequitable or incompatible with indigenous cultures, panelists said.

It’s a question of whether indigenous societies can retain control over traditional resources as they are increasingly viewed as fodder for potentially profitable ventures. A glaring example of obstacles to this was illustrated by the recent Mi’kMaq First Nations protests against exploration in New Brunswick, which exploded into violence in October.

As the Mi’kMaq and other dissent indicates, it has been difficult to enforce the U.N. Declaration. The core of FPIC, which shaped the conference’s discussion, reads: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

Carrying out the U.N. Declaration on the ground has been a concern since its ratification in 2007.

Specifics on business enterprise in indigenous areas were a major part of the conference. The future direction of FPIC should take the education of investors and shareholders into account, said Dan Morrison of First Peoples Worldwide, noting that Mi’kmaq blockade against Southwestern Energy had been costing the company $60,000 per day as activists objected to fracking exploration in New Brunswick.

Southwestern Energy, a U.S. transnational, had limited community involvement, even though exploration took place on traditional territories of the Elsipogtog and Mi’kmaq First Nations, said Morrison. Speaking on a panel discussing “FPIC in Land & Natural Resources,” he pointed out that morality alone may not guarantee resource protection for traditional societies, but that financial incentives and penalties can.

Morrison’s appraisal was echoed by Shelley Alpern, a shareholder advocate at Clean Yield Asset Management, who said companies are neglecting to realize or are ignoring the fact that Indigenous Peoples can cost companies millions of dollars, making it important to obtain FPIC before financial input.

“Projects are going to continue on indigenous peoples’ land,” was the frank assessment of Nicholas Cotts, a spokesperson from the Denver corporate offices of the Newmont Mining Corp. No overall projects have been halted by FPIC considerations, he said, despite intense protests over mining in Peru and on Western Shoshone traditional lands in Nevada.

Cotts said that future FPIC processes would include drafting a letter of intent spelling out how Newmont would behave and recognizing communities’ rights as indigenous peoples, as well as Newmont’s right to explore on their land and to continue to negotiate.

Summing up the current state of indigenous resources protection, Washburn added that an Executive Order from President Barack Obama implementing the declaration is not likely. But, he added, there is an Executive Order requiring federal agencies to consult with tribes on their interests.

Money itself may be a constraint to UNDRIP, Washburn said. Although the administration has worked for years to protect tribal water rights, copy billion has been spent on recent settlements, and it will be hard to continue doing work on water settlements because of the cost, he said.

At bottom, self-government and self-determination “are the policy of our country,” Washburn said, so tribes should be allowed to exercise the same latitude.