For session: “For Business Affecting Indigenous Peoples – what are the critical implementation challenges for the GPs in the context of indigenous peoples?”

We welcome – and are grateful to – the Forum for this opportunity to express some key points with regard to the opportunities provided by the Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises. Indigenous Network members have previously recommended that indigenous peoples and the extractive industries is an area the Working Group should focus on, so we are grateful to see this agenda item addressing the human rights challenges for indigenous peoples.

This is a statement on behalf of the Indigenous Peoples and Extractive Industries Network. This global Network was formed in 2009 at a global conference in Manila to address the challenges faced by indigenous peoples in response to the extractive industries. As it is currently possible for only a small number of indigenous representatives from the Network to be present at the Forum, we wanted to jointly affirm certain points and make some recommendations. The Network does not claim to represent all affected indigenous peoples, but as part of the movement of those among the most gravely affected by the activities of transnational corporations we believe our collective voice should be heard.

The founding statement of the Network is the Manila Declaration, which works within the framework of the UN Declaration on the Rights of Indigenous Peoples to assert that Indigenous Peoples are rights holders. The Manila Declaration makes a number of calls on different actors with regard to the human rights impacts of extractive corporations. In particular, it called for Professor Ruggie, and therefore by implication the Working Group, to “actively engage with impacted indigenous communities through workshops addressing indigenous peoples’ rights and the extractive industry, and … promote the enactment of legislation in home states of transnational corporations that provides for extraterritorial jurisdiction in relation to their activities”.

The severity of the problems faced by indigenous peoples with regard to the extractive industries has already been noted in past submissions to the Working Group and has been recorded by Professor Ruggie in his work. The existence of the UN Working Group is a potential advance. But as of this time for indigenous and other communities directly affected by extractive industry operations the levels of abuse and their seriousness continue unabated. Estimates put the future production of specific minerals that will be sourced from indigenous lands at least 50%. Also there has been a recent increase in demand for minerals and the spread of “unconventional” oil & gas (such as tar sands and hydraulic fracturing) which has seen this trend accelerating. We now see this as a potential new wave of land grabbing by the extractive industries.

We believe it is vital that all discussions on principles and frameworks be grounded on the current realities for affected communities. We strongly encourage the Working Group to consider providing mechanisms through which these rights abuses could be heard and effectively addressed. Therefore we would like to draw attention to the following examples:-

In the Philippines violence, including the prominent presence of military and paramilitary forces serving the interests of corporations, is still the norm of mine development. Most recently there has been ‘a wave of killings’ associated with corporate mining on indigenous peoples’ lands on the island of Mindanao. These include the murder this year of Jordan Manda, the 11 year old son of an activist Subanon leader who was killed in an attempt on both father and son. Also the assassination of Juvy Capion with two of her children, Juvy was the wife of a B’laan tribal leader who is opposing the entry of Xstrata’s Tampakan mining project on his land. The violence meted out in Guatamala to peaceful indigenous Mayan protesters by San Rafael Mining’s company security in September this year. The mine is being forced through despite community consultations overwhelmingly rejecting it. The acts of arson and rape perpetrated by security forces working for the Porgera mine controlled by Barrick Gold of Canada. The repeated use of deadly force by the Peruvian military and company security against protestors resisting unwanted extractive industry operations. These include violence at Newmont’s mine in Cajamarca, Xstrata’s Espinar mine and oil exploration at Bagua in the Amazon. In the southwestern United States and in the Dakotas, indigenous peoples are struggling with a new wave of uranium mining, which involves destruction of sacred sites and areas rich with cultural resources. This is happening while uranium companies have not fully addressed uranium legacy issues including ill health and high cancer rates and grave impacts to their water, and the environment.

The Network will launch a publication at this meeting, Pitfalls and Pipelines, which covers various case studies in greater depth.

In response to the seriousness and urgency of the current situation a number of UN Mechanisms have responded to address the issue, including the initiatives by the UN Special Rapporteur on the Rights of Indigenous Peoples and the UN Expert Mechanism on Indigenous Issues. However, such welcome initiatives have so far failed to stem the flow of abuses and there is much more that should be done, especially by the Working Group, in cooperation with other parts of the UN.

We re-affirm that the implementation of free, prior and informed consent (FPIC) process is the minimum standard that we will accept as indigenous peoples dealing with the extractive industries. We recognise that extractive industry companies are, thanks to various pressures being brought to bear – especially in response to the UN Declaration on the Rights of Indigenous Peoples – making advances in accepting FPIC as an industry standard. This is to be applauded, but the real battle is now shifting to defining what FPIC is and how it is made operational.

We fear that the industry, and its financiers, will move ahead with their own self-serving definitions and unilaterally formatted process. This will be at the expense of recognition and respect of the rights and wishes of the most affected peoples, as well as the necessary development of independent monitoring and reporting. Resources should be targeted at ensuring there is a genuine, community-based input to the creation of general company or industry policies and guidelines, which would truly respect the rights of indigenous peoples.

Resources need to be directed at ensuring that communities are supported in better documenting their own decision-making processes, so that they cannot be undermined. We are aware that certain communities have developed their own protocols with regard to implementing FPIC, and more resources and the attention of the Working Group should be orientated towards sharing these experiences as indigenous ‘best practice’. Finally resources should be directed towards supporting communities with independent advice with regard to technical issues so that the ‘informed’ part of FPIC can truly work.

We also remind that the Manila Declaration calls for a review of all on-going projects that are approved without respect for indigenous FPIC and indigenous peoples’ right to self-determination.

As a basis for meaningful redress for abuses, we believe that all corporations should operate at least to minimum internationally recognised human rights standards rather than corporate self-defined programmes.

Therefore we have the following recommendations:-

• The Working Group take urgent action, in cooperation with other UN agencies, to better document, analyse and highlight the human rights abuses by military and paramilitary forces in imposing extractive industry projects upon indigenous communities. This could lead to joint protocols to ensure that extractive industry projects do not create or exacerbate armed conflict, or manufacture consent through terror. This could include an agreement – also involving financiers – on principles that would be the adequate basis for ‘No Go Zones’ because of conflict.

• That company and financiers’ due diligence, where indigenous peoples are involved, should include an indigenous-led FPIC process at the earliest possible stage of a project.

• For FPIC to be truly realised more resources need to be set aside to ensure that there is genuine interaction from indigenous representatives in the formulation of policy change and monitoring at the international, national and corporate level. Resources are also needed in support of community participation in, documentation and the provision of genuinely independent information on extractive processes and human rights and environmental impact assessments in project level decisions.

• The Network has been involved in setting up an independent project addressing the mining industry’s implementation of FPIC. We would invite and welcome the participation of the Working Group in dialogues, particularly in on-going multi-stakeholder research which is scheduled for launch in April 2013.

• On the third pillar issue of redress, we would like to draw attention to the recommendations made to different States by the UN Committee on the Elimination of Racial Discrimination. These recommendations call for those home states of multinational corporations to take actions to hold transnational corporations incorporated in their territory accountable for any adverse impacts on the rights of indigenous peoples and other ethnic groups. We support this call and urge cooperation between UN structures to better realise such advances.

• Recognising that there are still urgent issues of redress that have not yet been sufficiently faced, we believe that the Working Group should adopt a working procedure – including in the Forum – that better facilitates the inclusion of reports and testimony from those whose human rights are directly affected by corporate activities, as a priority over those from corporations, NGOs and academic experts.