Submission to the UN Committee on the Elimination of all forms of Racial
Discrimination (CERD) 79th Session with regard to the United Kingdom’s (UK’s)
responsibility to ensure respect for the rights of indigenous peoples overseas in the
context of UK transnational corporations (TNC) activities impacting on them.1
Submission on behalf of: Indigenous Peoples Links (PIPLinks); Middlesex University
Dept. of Law; Down to Earth; & the London Mining Network.2
Context re extraterritorial issues:
1.
This submission complements those of Amnesty International and the Runnymede
Trust in relation to the extraterritorial responsibility of UK companies. It focuses on the need
for greater control and accountability from UK-based extractive companies, and from the
financial entities funding them, which impact on Indigenous Peoples overseas. The appendix
outlines a number of case studies where these impacts have been felt, including cases where
action is urgently needed to prevent future violations.
2.
The submission concludes with a number of suggested recommendations for the UK
Government. It also suggests that, in light of the increased attention being placed on the issue
of extraterritorial responsibility, it would be beneficial if the CERD considered issuing a
General Recommendation on this issue in order to provide guidance to all State Parties with
regard to their obligations under the Convention.
Background:
3.
A significant number of United Kingdom (UK) registered transnational companies
have operations within indigenous territories around the world in the extractive (mining, oil
and gas), fisheries and agriculture sectors. Operations associated with all of these sectors have
resulted in violations of Indigenous Peoples' rights.3 However, extractive sector operations
violations constitute a disproportionately high percentage of them.4 These extractive
1
UN Committee on the Elimination of Racial Discrimination 79th Session (8 August - 2
September 2011)
2
For details of the submitting organizations see: http://www.piplinks.org/;
http://www.mdx.ac.uk/aboutus/Schools/business_school/departments/law/index.aspx;
http://www.downtoearth-indonesia.org/; & http://londonminingnetwork.org/
3
See appendix for some examples in Asia, Africa, North and South America.
4
John Ruggie, Interim Report of the Special Representative of the Secretary-General on the
Issue of Human Rights and Transnational Corporations and Other Business Enterprises, U.N. Doc.
E/CN.4/2006/97 (2006) Para 25 ’The extractive sector - oil, gas and mining - utterly dominates this
sample of reported with two thirds of the total.... The extractive industries also account for most
allegations of the worst abuses, up to and including complicity in crimes against humanity. These are
typically for acts committed by public and private security forces protecting company assets and
1
companies registered in the UK are largely funded by UK registered banks, finance
companies, and institutional investors, including pension funds and insurance companies.
London’s position as a centre for global investment, attracting capital from across the world,
is the reason why such a large number of extractive companies are registered in the UK.5
4.
The impact of UK-based investments is therefore significant and widespread,
affecting Indigenous Peoples across the globe (see appendix 1 for examples).6 Regulating the
activities of the UK-based extractive and financial sectors, in accordance with international
human rights standards, is therefore an essential pillar of efforts to establish safeguards
against the widespread violations of Indigenous Peoples' rights. The extant policies and
practices of extractive companies are inconsistent with the UN DRIP and human rights
standards. In addition there exists a paucity of standards and policies in the mainstream UK
investment sector with regard to the impacts of its investments on Indigenous Peoples’ rights.
5.
One mechanism which may offer some guidance to the UK Government is ILO
Convention 169 on Tribal and Indigenous Peoples Rights. However, the UK Government has
so far failed to ratify it. The UK Government endorsed the UN Declaration on the Rights of
Indigenous Peoples (UN DRIP) in 2007, but in a statement of explanation offered the view
that it was not applicable to the UK as there were no Indigenous Peoples within the UK,
ignoring the international obligations associated with endorsement of the UNDRIP. Indeed
the UK Government has consistently failed to provide effective monitoring or any adequate
safeguards to ensure that UK registered companies (both extractive and financial) comply
with any of the UK’s international obligations. Compliance with these standards would
require it to ensure that these companies have appropriate policies in place, examine their
human rights records and where a history of violations exists deny them a UK registration.7
6.
A number of UK-based companies, and companies with significant UK investments,
have failed, and continue to fail, to live up to these standards in practice. This trend is
expected to increase, particularly in the energy and extractive sectors as demand increases for
remaining resources, often located in indigenous territories. Increased investment in these
sectors is in general correlated with high risk of potentially profound negative impacts on
property; large-scale corruption; violations of labour rights; and a broad array of abuses in relation to
local communities, especially indigenous people.’
5
For example most of the major mining companies including Rio Tinto, BHP Billiton, Xstrata,
Vedanta and Anglo American are registered in the U.K.. An overview of mining finance, as well as
individual examples, are available from:- http://moneytometal.org/
6
The scale of mining related investments conducted in the U.K. is evidenced by trading
activity on the London Metal Exchange which is estimated to be $11.6 Trillion a year.
7
Nostromo Research, London, City of Spoils: UK mining companies and the case for stricter
oversight. A draft report for London Mining Network by Nostromo Research, June 2011
2
Indigenous Peoples’ rights to land, health, living environment, sacred sites and their way of
life.8
7
In addition to providing funding to the global operations of UK based TNCs, these
extractive sector-based investment opportunities are also a major source of revenue for the
UK economy. This fact that the UK economy is directly profiting from these rights violating
activities should place, in addition to its legal obligations under the Convention, a significant
moral burden on the State to design the measures necessary to protect against such
occurrences, to monitor for them and to sanction them where they occur.
8.
In this context, and in light of similar recommendations made by the CERD to
Canada, the USA and Norway it is suggested that the UK be given guidance in relation to the
importance of ‘taking appropriate legislative or administrative measures to prevent acts of
transnational corporations [and financial entities] registered in’ UK ‘which negatively impact
on the enjoyment of rights of indigenous peoples in territories outside’ Britain, and to ensure
that they are held to account.9
8
See Appendix for examples of U.K. Companies which have impacted or are currently
impacting on indigenous peoples enjoyment of their rights
9
CERD/C/CAN/CO/18 para ‘17.
The Committee notes with concern the reports of
adverse effects of economic activities connected with the exploitation of natural resources in
countries outside Canada by transnational corporations registered in Canada on the right to land,
health, living environment and the way of life of indigenous peoples living in these regions (arts 2.
1(d)d), 4 (a) and 5(e)).
In light of article 2.1 (d) and article 4 (a) and (b) of the Convention and of its general
recommendation no. 23 (1997) on the rights of indigenous peoples, the Committee encourages the
State party to take appropriate legislative or administrative measures to prevent acts of transnational
corporations registered in Canada which negatively impact on the enjoyment of rights of indigenous
peoples in territories outside Canada. In particular, the Committee recommends that the State party
explore ways to hold transnational corporations registered in Canada accountable. The Committee
requests the State party to include in its next periodic report information on the effects of activities of
transnational corporations registered in Canada on indigenous peoples abroad and on any measures
taken in this regard.’
CERD/C/USA/CO/6 para 30 (Text of recommendation is the same that issued to Canada
above)
CERD/C/NOR/CO/19-20 para 17 ’The Committee is concerned about the effects on
indigenous peoples and other ethnic groups in territories outside Norway, including impact on their
way of life and on the environment, of the activities by transnational corporations domiciled in the
territory and/or under the jurisdiction of Norway. (arts. 2, 5 and 6)
In light of its general recommendation 23 (1997) on the rights of indigenous peoples, the
Committee recommends that the State party take appropriate legislative or administrative measures
to ensure that the activities of transnational corporations domiciled in the territory and/or under the
jurisdiction of Norway do not have a negative impact on the enjoyment of rights of indigenous
peoples and other ethnic groups, in territories outside Norway. In particular, the State party should
3
Suggested recommendation:
9.
In accordance with its previous recommendations to Canada, the USA and Norway it
is suggested that the CERD draw attention to concerns in relation to the impacts of United
Kingdom companies and UK private and public investments on Indigenous Peoples’
enjoyment of their rights recognized in ICERD articles 2. 1(d), 4 (a) and 5(e), General
Recommendation no 23 (1997) and the UN DRIP.
10.
It is respectfully suggested that the committee recommend that:
A. The UK take appropriate legislative and administrative measures to prevent acts of
transnational corporations and financial entities registered in the UK negatively
impacting on the enjoyment of rights of Indigenous Peoples in territories outside the
UK. In particular, the State party should explore ways to hold these transnational
corporations and financial entities to account for contributing toward violations of
Indigenous Peoples' rights.
As part of this exercise, the UK must:
i.
Ensure that extractive companies, and public or private investors funding them,
have policies in place, consistent with the UN DRIP standards, which seek to
guarantee that their activities and investments do not contribute to discrimination
against Indigenous Peoples.10
ii. Address the absence of independent monitoring processes that can receive
complaints from Indigenous Peoples, and which have the capacity to conduct
investigations leading to enforceable sanctions. The Government must make
appropriate provision for indigenous communities to exercise the right to engage
with such processes through the provision of adequate legal aid.
iii. Strengthen corporate reporting and disclosure requirements with regard to
material (financial) risks in relation to impacts on Indigenous Peoples’ rights.11
iv. Ratify ILO Treaty 169 and ensure that UK registered companies, and those
funded by UK investments, operate in a manner consistent with it, and the UN
DRIP.
explore ways to hold transnational corporations domiciled in the territory and/or under the
jurisdiction of Norway accountable for any adverse impacts on the rights of indigenous peoples and
other ethnic groups, in conformity with the principles of social responsibility and the ethics code of
corporations.’
10
This would build on recommendations made by the CESCR’s to State Parties e.g. CESCR 2011
recommendation to Germany that it “ensure that its policies on investments by German companies
abroad serve the economic, social and cultural rights in the host countries.” E/C.12/DEU/CO/5, para.
10.
11
http://www.business-humanrights.org/media/documents/ruggie/weil-memo-re-guidingprinciples-11-jan-2011.pdf
4
v. Actively seek to use its position as a member of the World Bank Board to ensure
that the World Bank is compliant with international human rights standards in
relation to respect for the rights of Indigenous Peoples. Specifically, the U.K.
should encourage the public sector arm of the World Bank to update its policies
to include recognition of the requirement for Free Prior Informed Consent, as has
recently been done by the World Bank’s Private Sector arm, the International
Financial Corporation (IFC).
B. It is further respectfully suggested that the CERD consider issuing a General
Recommendation addressing State Parties extraterritorial responsibility, and by
extension the responsibility of multilateral institutions, such as the World Bank,
under the Convention. The Committee’s recommendations to Canada, the U.S. and
Norway; information provided at this session in relation to the U.K.; and the fact
that a growing number of other countries - India, Brazil, China, Australia, Spain, the
Netherlands and France to name a few - have TNC's or investments impacting on
Indigenous People's rights overseas, are illustrative of the increasing importance of
providing timely guidance on this issue in a cross cutting manner.
5
DRAFT – FOR REVIEW AND COMMENT
Appendix 1: Examples of impacts of UK companies on indigenous peoples overseas.
The following are some examples of involvement of UK extractive companies, or financial
entities with significant investments in UK-based companies, in Indigenous Peoples'
territories overseas.
Botswana
Gem Diamonds Ltd12 is a “full-status FTSE 250, FTSE and FTSE All Share listed company”,
although its registered office for tax purposes lies in the tax haven of the British Virgin
Islands. The company was set up by its Chief Executive officer Clifford Elphick, who
previously worked for the now UK-registered Anglo American and De Beers. Currently it
owns operating mines in Angola, Central African Republic, Australia and Lesotho.13 The
company consequently receives the bulk of its funding from UK-based investors, and via the
London Stock Exchange.14
On the 20th of January 2011, Gem Diamonds was awarded a mining licence for the Gope
diamond project in Botswana – a diamondiferous field said to be worth around US$3.3
billion.15 The project is located in the Central Kalahari Game Reserve where diamonds were
discovered in the 1980’s. Between 1997 and 2005 the Bushmen were forced to leave the
reserve, primarily as a result of the government’s decision to halt supply water to them and to
remove a borehole pump upon which they were dependant. The Bushmen, and Survival
International who have acted as their legal counsel, have maintained that the reason for this
forced relocation was to prevent their opposition to the mining of diamonds in the reserve.16
In 2006 the Bushmen won a high court case in relation to their forced eviction from the
Reserve.17 Despite this victory the government refused to permit the Bushmen restore a bore
hole, effectively denying them the right to return due to a lack of access to water. The
12
Much of this material is drawn from Nostromo Research, London, City of Spoils: UK mining
companies and the case for stricter oversight. A draft report for London Mining Network by Nostromo
Research, June 2011
13
See http://www.gemdiamonds.com/a/board.asp
14
For a list of shareowners see: http://www.gemdiamonds.com/im/share_info.asp. At the
time of writing the main shareholders are the Lansdowne Partners Limited and BlackRock Investment
Management Limited
15
Mining Weekly, 18 January 2011
16
http://www.survivalinternational.org/tribes/bushmen/diamonds#main
17
Bushmen win landmark legal case 13 December 2006
http://www.survivalinternational.org/news/2128
6
DRAFT – FOR REVIEW AND COMMENT
Bushmen were obliged to take another legal case in order to require the government to uphold
their right to water which they won on the 27th of January 2011.18
Gem Diamonds acquired the controversial project from De Beers and Xstrata (also a UK
based company) in 2007 during the period in which the Bushmen were unable to return to
their lands. According to Survival International ‘Gem Diamonds’ chief executive called the
Gope deposit ‘“a problematic asset for De Beers” because of the Bushmen campaign.’19
On 12th March 2010, while the Bushmen were being denied access to water CERD issued an
early warning and urgent action letter to the Government of Botswana requesting information
on the measure it had taken to implement the High Court decision.20
Concerns have been raised that the Gem Diamonds mine will further infringe upon the ability
of the Bushmen to enjoy their rights to livelihood and culture, and that meaningful
consultation have not been held in order to obtain their free, prior and informed consent. 21
These issues were raised by the UN Special Rapporteur following his 2010 visit to
Botswana.22 According to Survival International’s director, Stephen Corry, Gem Diamonds
claim to have secured the “consent” of the Bushmen to the operation of the mine in such a
context is a cause for concern.23 As Mr Corry has pointed out “How can people who are
denied water to force them out of the reserve possibly be in a position to give their free and
informed consent? Particularly when no-one apart from Gem Diamonds and the government
has told them what impact this massive mine might have on them?”
Gem Diamonds’ action in pursuing the project is inconsistent with the standard of human
rights due diligence that the UK should require from its companies in accordance with its
obligations under ICERD. The company could not have envisaged holding good faith
consultations in order to seek and obtain consent from Indigenous Peoples’ in the context
18
Victory for Kalahari Bushmen as court grants right to water 27 January 2011
http://www.survivalinternational.org/news/6925
19
http://www.survivalinternational.org/tribes/bushmen/diamonds#main
20
http://www2.ohchr.org/english/bodies/cerd/docs/Botswana_12.03.2010.pdf
21
The controversy around the issuance of the permit to Gem diamonds prior to the decision on
the case in relation to the Bushmen’s water rights was addressed in a discussion in the United
Kingdom's House of Lords in March 2011. See: http://www.theyworkforyou.com/lords/?id=2011-0314a.4.2&m=100029
22
‘In addition, the Government’s position that habitation of the reserve by the Basarwa and
Bakgalagadi communities is incompatible with the reserve’s conservation objectives and status
appears to be inconsistent with its decision to permit Gem Diamonds/Gope Exploration Company
(Pty) Ltd. to conduct mining activities within the reserve, an operation that is planned to last several
decades and could involve an influx of 500-1200 people to the site, according to the mining
company.’ A/HRC/15 22 February 2010 Para 73
http://www2.ohchr.org/english/issues/indigenous/rapporteur/docs/ReportVisitBotswana.pdf
23
http://www.survivalinternational.org/news/6859
7
DRAFT – FOR REVIEW AND COMMENT
where it was actively pursuing a project in lands which the people were being prevented from
returning to, as a result of the Government's continued violation of their basic rights.
Following the Court’s 2011 ruling upholding the Bushmen’s right to drill boreholes in the
reserve, Gem Diamonds has announced that it would provide cash for some of those
boreholes. This gesture has generated a certain degree of support from some of the Bushmen.
In doing so it has provided Gem Diamonds with much needed, and relatively cheap, positive
publicity. However, the Bushmen continue in a state of ‘profound uncertainty’ with regard to
the Government plans for them. In addition, there remains an enormous deficiency in the
information with regard to both the project’s potential impact on, and benefits for, the
Bushmen. Gem Diamonds is consequently attempting to proceed in a context in which it is
clearly impossible for the Bushmen to give or withhold their free prior and informed consent.
Colombia
The Cerrejon coal mine in the Department (province) of La Guajira in northern Colombia is
one of the largest opencast coal mines in the world.24 The mine is operated by three
companies who all have headquarters in London, BHP Billiton, Anglo American plc and
Xstrata plc (even if BHP Billiton and Xstrata are joint-listed). The mine, operated initially by
Exxon subsidiary Intercor had a history of forced relocations of Indigenous and AfroColombian communities, with inadequate or non-existent compensation, to make way for
mine expansion.25
In the late 1970s and early 1980s, Indigenous Wayuu communities were moved to make way
for a coal export port at Puerto Bolivar, and for a railway built to carry coal from the mine to
the port. Burial sites were desecrated and tensions caused between family groups as displaced
families moved into the traditional territory of other families.26
In August 2001, the small farming village of Tabaco, inhabited mainly by Colombians of
African descent, was bulldozed by the mining company in a brutal operation accompanied by
hundreds of armed soldiers and security personnel.27
A sustained campaign of community opposition followed, supported by dissident
shareholders in BHP Billiton and others around the world. Some of the former residents of
Tabaco organized themselves through the Tabaco Relocation Committee, which was
24
Much of this material is drawn from the BHP Alternative Report, London Mining Network,
October 2009 & October 2010
25
Richard Solly and Roger Moody, “Stripping Guajira Bare”, 15 January 2001
http://www.minesandcommunities.org/article.php?a=4115
26
Aviva Chomsky, “Coal Mines and Communities in Colombia: The Salem Connection”, Salem
State College, paper prepared for presentation at Graduate Research Day, April 27, 2002. See
http://www.minesandcommunities.org/article.php?a=7032
27
Armando Perez Araujo, “Further action on crisis involving Exxon in Colombia, 12 August
2001 http://www.minesandcommunities.org/article.php?a=4107
8
DRAFT – FOR REVIEW AND COMMENT
demanding not only compensation for the destruction of homes and livelihoods but also
community relocation to farmland of equivalent agricultural value – as the World Bank’s
Guidelines on Involuntary Resettlement urge. The best that Cerrejon Coal was willing to offer
was family by family financial payouts based on property valuations which many in the
community disputed.28 In 2007 a complaint against BHP Billiton was made to the Australian
National Contact Point of the OECD (Organisation for Economic Co-operation and
Development).
In response to the criticism, in 2007 BHP Billiton and the other two multinational companies
involved in Cerrejon Coal (Anglo American and Xstrata) commissioned an Independent Panel
of Investigation to look into Cerrejon Coal’s social programmes and its general impacts on
local communities.29 The Panel found substance in much of the criticism that had been
levelled at the company. It made a number of recommendations, particularly concerning a just
settlement for the people of Tabaco. The Panel recommended, among other things, that
Cerrejon Coal work with the Tabaco Relocation Committee as well as with other former
residents of the village to ensure just compensation, buy collective land for agriculture and
help construct a church and community centre for common use by former residents. The
Panel also recommended that in future open, transparent negotiations take place with
communities badly affected by the proximity of the mine, leading to collective relocation with
community consent.30
Difficulties also remain for the communities currently facing displacement. There are
disagreements over the number of people subject to relocation. The company refuses to
acknowledge the need for productive land in the relocated settlements, even though it is
essential for the communities to continue their agricultural activities. In recent years, people
have found it almost impossible to support themselves as mining expansion has encroached
on agricultural land, and while the relocation process is under way – a process which may
take two years – people will have no means at all of supporting themselves. Community
members accuse Cerrejon Coal of undermining their community leadership, taking decisions
without consultation, publishing relocation timetables on the company’s website without
informing the communities, calling meetings at short notice and causing confusion and
divisions by cancelling meetings already agreed at the last minute, informing only some of the
participants and not others. The company has not succeeded in creating a relationship of trust
with the communities and community leaders.31
28
World Bank Operational Manual OP 4.12 – Involuntary Resettlement
http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANUAL/0,,contentMD
K:20064610~pagePK:64141683~piPK:64141620~theSitePK:502184,00.html
29
Jeremy Roberts and Andrew Trounson, Miner accused of evicting townsfolk, 3 July 2007,
http://www.minesandcommunities.org/article.php?a=2131
30
Cerrejon Coal and Social Responsibility, Final report of the Independent Panel of
Investigation, February 2008,
http://www.cerrejoncoal.com/formas/425/Cerrejon%20Panel%20Final%20e%20v%20%20260208%2
0%282%29.pdf
31
BHP Alternative Report, London Mining Network, October 2009 & October 2010
9
DRAFT – FOR REVIEW AND COMMENT
In its 2009 Recommendations to the Government of Colombia, the CERD recognised that
“the right to prior consultations and consent is frequently violated in conjunction with
megaprojects relating to infrastructure and natural resource exploitation, such as mining, oil
exploration or monocultivation.” As a result the “Committee recommends that the State party
adopt and implement in a concerted manner legislation which regulates the rights to prior
consultation in accordance with ILO Convention No. 169 and relevant recommendations of
the CEACR of the ILO, in order to ensure that all prior consultations are undertaken in a
manner which respects the free and informed consent of the affected communities. The
Committee recommends that the State party seek technical advice from the OHCHR and the
ILO for this purpose.”32
In 2009 and 2011 the Colombian Constitutional Court has affirmed that FPIC is required for
mining, and other development projects, located in indigenous and Afro-Colombian
territories.
India
Vedanta Resources33 is the world’s 17th largest publicly-listed mining company. It was
registered on the London Stock Exchange in December 2003, with the UK-domiciled “NonResident Indian” Anil Agarwal, as its majority share owner and Executive Chairman.
Although the majority of shares are held by Mr Agarwal's family trust, Volcan, the most
recent information shows a preponderance of UK-based shareholders, even if held through
nominee accounts.34
The Nyamgiri mountain is regarded by local tribal inhabitants as Nyam Raja – roughly
translated as "Lord of the Law" or "Lord of Dharma" – testimony to the reverence afforded by
the Dongria Kondh to a deeply sacred place.35
In September 2005, an inquiry by a leading advisory committee to India’s Supreme Court
(The Central Empowered Committee, or CEC) concluded that, inter alia, Vedanta had
“falsified information” to obtain environmental clearances for the alumina refinery it was
constructing on plains below the mountain and had also destroyed more than ten hectares of
32
Concluding observations of the Committee on the Elimination of Racial Discrimination,
Colombia, CERD/C/COL/CO/14, 28 August 2009 para 20
33
Much of this material is drawn from Nostromo Research, London, City of Spoils: UK mining
companies and the case for stricter oversight. A draft report for London Mining Network by Nostromo
Research, June 2011
34
The company has not recently listed its shareholders , but campaigners were able to obtain
a lists of shareholders in 2009. However, with recent changes, including public disinvestment, it is not
clear what the current ratio is.
35
See: http://www.minesandcommunities.org/article.php?a=7777
10
DRAFT – FOR REVIEW AND COMMENT
forest land. The CEC urged that mining venture be rejected on environmental grounds, and
also because it would violate the constitutional rights to occupation by the Kondh people.36
Despite the CEC’s forthright recommendation, over the succeeding five years the company
continued battling to clear the mining project. During this period many Khonds rose up in
vociferous opposition to what they saw as an unprecedented threat to their land and
livelihoods.
In 2007 the Norway’s Council on Ethics released the results of a two-year long examination
of Vedanta’s operations, primarily those in the Indian state of Orissa. It concluded that:
“[C]ontinuing to invest in the… company would present an unacceptable risk of contributing
to grossly unethical activities.”37
In response to this damning indictment, the Norwegian government sold all its Vedanta shares
(valued at around US$13 million). An open invitation had already been extended by the
Council on Ethics to Vedanta to refute its findings and, at any future point, to demonstrate a
radical improvement in its modus operandi, at which time the Council would consider
reversing its earlier stance. To date Vedanta has failed to do so, and the company remains
“blacklisted”.38
The UK OECD National Contact Point (NCP) ruled that Vedanta “did not respect the rights
of the Dongria Kondh”; did not “consider the impact of the construction of the mine on the
[tribe's] rights”; and that it “failed to put in place an adequate and timely consultation
mechanism”. The government body concluded that a “change in the company's behaviour”
was “essential”. Moreover, it criticised Vedanta – despite repeated requests – for “fail[ing] to
provide any evidence during the examination”. According to Survival International, this was
“the only time a [UK] company has refused to participate in an OECD investigation.39
In February 2010, Amnesty International published detailed allegations about the company’s
social and environmental violations in the Lanjigarh area which it has neglected to answer.
The report notes how those “involved in the refinery-cum-mining project appear to have
repeatedly attempted to bypass or overcome regulatory requirements, seemingly with little
regard for the rights of local communities or the impacts on the environment. Both national
36
See: http://www.minesandcommunities.org/article.php?a=7769;
http://www.minesandcommunities.org/article.php?a=7773
37
http://www.regjeringen.no/Upload/FIN/Statens%20pensjonsfond/RecommendationVedanta.pdf See
also: http://www.minesandcommunities.org/article.php?a=8260
38
Nostromo Research personal communication from Norwegian Council on Ethics to author,
August 2010
39
http://www.minesandcommunities.org/article.php?a=9543&highlight=Survival,International
11
DRAFT – FOR REVIEW AND COMMENT
and state level authorities have repeatedly failed to take adequate action to prevent corporate
operations from causing harm to human rights and the environment.”.40
Finally, in August 2010, a high-level independent report, commissioned by India’s Ministry
of Environment and Forests (MoEF) unequivocally rejected the Nyamgiri mining project and
also urged a halt to Vedanta’s planned sixfold expansion of its Lanjigarh refinery. The
report’s authors concluded that: "The Vedanta Company has consistently violated the FCA,
FRA, EPA41and the Orissa Forest Act in active collusion with the state officials. Perhaps the
most blatant example of it is their act of illegally enclosing and occupying at least 26.123 ha
of Village Forest Lands within its refinery, depriving tribal peoples, dalits and other rural
poor of their rights.” 42 At the time of writing a petition is before the Supreme Court to set
aside the MoEF’s refusal of forest clearance.43
CERD has raised concerns over this issue in its letter of 12th March 2010 to the Government
of India, under its early warning and urgent action procedure, seeking clarification stating “It
appeared that the Dongria Kondh community has not been fully and clearly informed of the
impact of future mining activities, that no provisions have been made to allow the community
to access and continue to worship in their religious site ... It has been further alleged that mine
construction not only affects the livelihoods of the Dongria Kondh but also pollutes their
environment ... It finally appears that the Dongria Kondh were not consulted about the mining
plans by the Government or mining company”. 44
Indonesia 45
Although the Grasberg mine in West Papua is operated primarily by the New Orleans basedFreeport McMoran, United Kingdom-based Rio Tinto is a 40% shareholder. Rio Tinto does
40
http://www.amnesty.org.uk/uploads/documents/doc_20144.pdf
41
India’s Forest Conservation Act, Forest Rights Act, and Environment Protection Act
http://www.minesandcommunities.org/article.php?a=10322
42
43
http://timesofindia.indiatimes.com/india/No-environment-clearance-for-Vedanta-Centretells-green-tribunal/articleshow/9318453.cms. See also
http://www.minesandcommunities.org/article.php?a=10833 Technically speaking the lease was held
by the Orissa state mining company, OMC. However a subsidiary of Vedanta Resources plc would
extract the bauxite which it would refine and profit from. As noted by Mines and Communities ‘It was
therefore little surprise that, at the end of last month, OMC argued before India's Supreme Court that
the MoEF 's decision was in breach of an earlier go-ahead for the project, given by the Court itself.’
44
CERD Letter to Government of India, 12 March 2010
http://www2.ohchr.org/english/bodies/cerd/docs/India_12.03.2010.pdf
45
Following is primarily taken from the US CONSOLIDATED INDIGENOUS SHADOW REPORT,
Submitted by Alberto Saldamando, International Indian Treaty Council (EXAMINATION OF THE
UNITED STATES 4th, 5th, and 6th PERIODIC REPORTS OF APRIL, 2007), pp 75-76 http://www2.ohchr.org/english/bodies/cerd/docs/ngos/usa/USHRN8.doc]
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DRAFT – FOR REVIEW AND COMMENT
not deny its role in the mine. In September 2008, the Norwegian sovereign wealth fund sold
its Rio Tinto shares after failing to persuade the company to improve operations at the West
Papua mine. At the time, a spokesman for Rio Tinto said: “We work closely with Freeport
and are comfortable with the work they have done at Grasberg. The tailing management
system is the right one to use and the environmental damage that has been alleged is not the
case.”46
When Freeport McMoRan Copper and Gold Company began its mining operations in West
Papua in 1967, they never consulted with or received the consent of the indigenous
landowners of the mineral rich territory. With the help of the Indonesian military (TNI),
Freeport confiscated Amungme and Kamoro lands and forcibly relocated entire communities
away from the mine.47 At the official opening ceremony of the mine in 1973, President
Suharto renamed the territory Irian Jaya--an acronym for "Follow Indonesia Against
Holland." Henceforth the Papuan, or Melanesia population, who numbered about a million,
were renamed Irianese and the use of the geographical name West Papua was forbidden.48
Papuan rebels, organized into the Free Papua Movement (OPM) in the 1970s, have been
waging an independence struggle ever since. The TNI has bombed, strafed and reportedly
napalmed villages suspected of supporting the OPM. Military operations against villages are
typically justified by reference to incidents actually engineered by the TNI.49 An estimated
100,000 Papuans, or 10 percent of the population, have been killed by the Indonesian military
since 1961.50
A $6 billion class-action lawsuit brought by indigenous groups in 1996 charged Freeport with
human rights abuses, the robbery of ancestral lands, violations of environmental law and
"planning the demise of a culture of indigenous people whose rights were never considered"
as mine development proceeded.51 By 1998 Freeport was dumping 200,000 tons of toxic
46
Norwegian wealth fund sells stake in Rio Tinto, The Times, 10 September 2008 http://business.timesonline.co.uk/tol/business/industry_sectors/banking_and_finance/article472004
0.ece
47
Marr, Carolyn, 1993. Digging Deep: the hidden costs of mining in Indonesia. London: Down
to Earth and Minewatch. (p.74)
48
Nietschmann, Bernard, 1986. “Economic Development by Invasion of Indigenous Nations,”
Cultural Survival Quarterly 10:2 (p. 6)
49
Wing, John and Peter King, 2005. “Genocide in West Papua? The Role of the Indonesian
State Apparatus and a Current Needs Assessment of the Papuan People.” ELSHAM and the Centre for
Peace and Conflict Studies, University of Sydney, Australia. (p. 6)
50
Kingsworth, Paul, 2005. “Rape of a Nation: Indonesia’s Campaign of Violence against the
People of West Papua” The Ecologist Magazine 35 (April 28)
51
Beanal, Tom, 1996. Beanal v. Freeport McMoRan. U.S. District Court, Eastern District for
Louisiana. Case No. 96-1474 (April 29)
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DRAFT – FOR REVIEW AND COMMENT
mine tailings per day into the local rivers, causing more ecological damage than the notorious
neighboring mines of Ok Tedi and Bougainville.52
This practice is illegal in the U.S. and was cited as the primary reason for the cancellation of
Freeport's political risk insurance by the U.S. government's Overseas Private Investment
Corporation (OPIC) in 1995. OPIC's letter to Freeport said that the massive deposition of
tailings from Freeport's mine posed "unreasonable or major environmental, health, or safety
hazards with respect to the rivers...the surrounding terrestrial ecosystem, and the local
inhabitants."53 The suit was eventually dismissed by a U.S. court but the company's
complicity in human rights abuses by Indonesian soldiers employed by the company to guard
the company's mine persist to this day.
In its 2007 Recommendations to the Government of Indonesia, the CERD expressed its
concern over about how the West Papuans “continue to experience great poverty”, and
recommended that the State party provide information on the implementation of the Papua
Special Autonomy Law No. 21 of 2001, as well as on measures adopted to ensure the
enjoyment by Papuans of their human rights without any discrimination.54
Philippines
The United Kingdom based Anglo American applied to mine in the municipality of Conner
Apayao, in the ancestral lands of the Isneg and where the Ibaloi, Kankanaey and Kalinga
people from neighboring areas have also settled. Issues with abuse of Free, Prior and
Informed Consent were brought to the attention of the ICERD committee in the 2009
Philippines ICERD Indigenous Peoples Shadow Report.55
As noted in the report, Anglo American initiated an FPIC process for its proposed operations
in 2005. The ‘elders’ chosen to represent the Isneg and other Indigenous Peoples in Conner,
Apayao, were not selected by the community. Instead they were “appointed” by local
government officials who had been asked by the government department dealing with
Indigenous Peoples, the National Commission on Indigenous Peoples (NCIP), to identify who
the indigenous elders were. Community members who supported the proposed mining were
identified in place of the community’s traditional leaders. The NCIP then accorded
52
Abrash, Abigal and Danny Kennedy, 2001. “Repressive Mining in West Papua,” in Geoff
Evans, James Goodman and Nina Lansbury (eds.) Moving Mountains: Communities confront mining
and globalization. Sydney, Australia: Ortford Press. (p. 66)
53
Press, Eyal, 1996. “Jim Bob’s Indonesian Misadventure,” The Progressive 60:6 (June). (p. 34)
54
Concluding observations of the Committee on the Elimination of Racial Discrimination,
Indonesia, CERD/C/COL/CO/3, 15 August 2007 para 22,
http://www2.ohchr.org/english/bodies/cerd/docs/CERD.C.IDN.CO.3.pdf
55
Philippines Indigenous Peoples ICERD Shdow Report, Discrimination against Indigenous
Peoples in the Philippines, August 2009,
http://www2.ohchr.org/english/bodies/cerd/docs/ngos/PIP_Philippines75.pdf, p.47
14
DRAFT – FOR REVIEW AND COMMENT
recognition to these people as representatives of the community, despite the fact that many
were not considered as legitimate leaders in the community itself.
Those legitimate elders included decided to boycott the FPIC process, which they felt was
being manipulated by the mining company and the local government officials. Other
community members and leaders were deliberately excluded from the process. The recorded
FPIC decision was therefore mostly in favor of mining, while in reality most of the affected
community members were vocal in their opposition to it. The community submitted petitions
rejecting mining but was told by the NCIP that the outcome of this flawed FPIC process had
to be respected. Anglo American withdrew from the project, and indeed the Philippines in
early 2011. Throughout its six year attempt to impose the project against the expressed wishes
of the indigenous community it refused to admit any problem in its dealings with them and to
having caused deep divisions within the community.56
A second project involving a U.K. company in the Philippines is the Tampakan project on the
border of a number of provinces in southeast Mindanao. The London Stock Exchange
registered Xstrata is the operating company, and major shareholder (62.5%) in the project. If
implemented the $5.9-billion open-pit Tampakan copper-gold project, will be the largest
single foreign direct investment in the Philippines. The project has a long and bitter history of
struggle with many of the local B'laan Indigenous Peoples dating back to 1994. As noted in
the 2009 Philippines ICERD Indigenous Peoples Shadow Report, the B'laan tribal association
challenged the constitutionality of the 1995 Philippine Mining Act in their efforts to have
project cancelled. Having initial won the case in 2004 a discriminatory Supreme Court
judgment repealed the decision equating their rights to ‘parochial interests’ that had to be
sacrificed for ‘the greater good of the greater number’.57 The affected B'laan still maintain
that a proper free, prior and informed consent process has not been conducted. Serious
concerns remain in relation to the impact of the project to a major watershed upon which the
B’laan and surrounding communities are dependent.58 The provincial government has enacted
a mining moratorium as a result of these concerns but Xstrata is choosing to ignore this. The
area around the mine has been militarized and human rights abuses against local indigenous
leaders have been documented.59 Following his visit to the Philippines in 2002 the UN
Rapporteur on the Rights of Indigenous Peoples noted that the B’laan had been deprived of
their rights to determine their own development, to their property and to a genuine FPIC
process.60
56
World’s largest mining firm pulls out of PH, Malaya, 3 January 2011 http://www.malaya.com.ph/jan03/busi5.html
57
Philippines Indigenous Peoples ICERD Shdow Report, Discrimination against Indigenous
Peoples in the Philippines, August 2009,
http://www2.ohchr.org/english/bodies/cerd/docs/ngos/PIP_Philippines75.pdf, p.66-67
58
See Philippines: Mining or Food? case study No 3 http://www.piplinks.org/miningorfood
59
http://www.minesandcommunities.org/article.php?a=10844
60
‘As a result of this mining operation, it was reported that the B’laan were deprived of their
right to determine their own economic, social and cultural development and their property was
15
DRAFT – FOR REVIEW AND COMMENT
In its 2009 Recommendations to the Government of the Philippines, the CERD urged the
State party to fully implement IPRA [the Indigenous Peoples Rights Act], in particular by
securing the effective enjoyment by indigenous peoples of their rights to ancestral domains,
lands and natural resources, and ensuring that economic activities, especially mining, carried
out on indigenous territories do not adversely affect the protection of the rights recognized to
indigenous peoples under the aforementioned Act.61 CERD also recommended that a review
of FPIC guidelines be conducted to ensure that the genuine consent of indigenous peoples is
obtained.
Suriname
In its 2004 Recommendations to the Government of Suriname, the Committee expressed its
concern that the then Draft Mining Act of Suriname was discriminatory and failed to
recognise the rights of Indigenous Peoples would be infringed by decisions made by the
executive, rather than the judiciary.62
One of the major threats of that period was the plan to develop bauxite mining on a vast area
of the Lokorno Peoples territory, in Western Suriname. In 2003, the Government granted a
2,800 sq km concession and bauxite exploration permits to the locally registered, whollyowned subsidiaries of UK-based BHP Billiton with Alcoa. This Bakhuys project is still
ranked as one of the country's biggest ever development projects.
While BHP Billiton and their contractors acknowledged that the Lokono were ‘stakeholders’
in the mine project, on a number of occasions they have argued that there are no Indigenous
Peoples living within the concession and therefore that traditional land rights are not an issue.
The concession and exploration permits were both issued without any prior notification to or
agreement with the affected communities. An environmental and social impact assessment
was not conducted for the exploration work, even though the concession is in a traditional
indigenous territory and exploration involved widespread impacts on primary tropical
rainforests (although the company did later apologise for this).63
In 2005, the UN CERD indirectly referred to this project in an urgent action decision, where it
expressed its deep concern that Suriname is ‘authorizing additional resource exploitation and
disposed of. No genuine consent was given by the indigenous peoples. They argue that their leaders
were tricked by the authorities into signing agreements which they could not fully understand and
which have not benefited them.’ E/CN.4/2003/90/Add.3 5 March 2003 Para 34
61
Concluding observations of the Committee on the Elimination of Racial Discrimination,
Philippines, CERD/C/PHL/CO/20, 23 September 2009 para 22, http://daccess-ddsny.un.org/doc/UNDOC/GEN/G09/450/81/PDF/G0945081.pdf?OpenElement
62
Concluding observations of the Committee on the Elimination of Racial Discrimination,
Suriname, CERD/C/64/CO/9, 28 April 2004, para 14, http://daccessods.un.org/access.nsf/Get?Open&DS=CERD/C/64/CO/9&Lang=E
63
Forest Peoples Programme, Free, Prior and Informed Consent: Two Cases from Suriname,
March 2007, p.12 -14
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DRAFT – FOR REVIEW AND COMMENT
associated infrastructure projects that pose substantial threats of irreparable harm to
indigenous and tribal peoples, without any formal notification to the affected communities
and without seeking their prior agreement or informed consent.’64
A 2009 independent review of the BHP subsidiary's environmental and social impact
assessment for the mining project notes that although the company promised to work to the
highest standards, but produced “a sub-standard impact assessment that demands little from
the mining corporations and undermines the livelihoods of the Indigenous Peoples.”65
United States
The UK-registered Anglo American is the senior partner, in a 50-50 joint venture with
Canadian Northern Dynasty Minerals ltd., known as the Pebble Limited Partnership.66 They
propose to construct the ‘Pebble Mine’, an open-pit gold and copper mine in Bristol Bay,
Alaska. The proposed mine would be the biggest in North America, generating up to 10
billion tons (9 billion tonnes) of mine waste.67
The proposed mine represents a major threat to the Indigenous Peoples of Bristol Bay. 68 The
salmon, from this, the world’s largest wild salmon fishery, are of fundamental importance to
their physical and cultural survival. Salmon constitutes their primary source of food and is the
basis of their subsistence.69 Salmon fishing is integral to both their culture and livelihoods,
constituting a traditional and sustainable economic activity.70 It is directly threatened by
64
Decision 1(67), Suriname. UN Doc. CERD/C/DEC/SUR/2, 18 August 2005, at para. 3.
65
Suriname’s Bakhuis Bauxite Mine: An Independent Review of SRK’s Impact Assessment /
edited by Robert Goodland, September 2009, p .22
66
The UK-based Rio Tinto is a major shareholder in Northern Dynasty Minerals (9.9%) and has
been mooted as a possible purchaser of Northern Dynasty's stake in the project. See: Northern
Dynasty looks to sell Pebble stake, http://www.alaskajournal.com/stories/042111/loc_ndls.shtml, 21
April 2011
67
Ecology and Environment Inc., “An Assessment of Ecological Risk to Wild Salmon Systems
from Large-Scale Mining in the Nushagak and Kvichak Watersheds of the Bristol Bay Basin”, October
2010.
68
Indigenous people, primarily Yu’pik, Athabascan and Aleut represent 65% of the Bristol Bay
population.
69
Salmon consistutes 60-80% of subsistence harvest. Fall, J.A., D.L. Holen, B. Davis, T.
Krieg, and D. Koster. 2006. Subsistence harvests and uses of wild resources in Iliamna, Newhalen,
Nondalton, Pedro Bay, and Port Alsworth, Alaska, 2004. Alaska Department of Fish and Game,
Division of Subsistence Technical Paper No. 302. Juneau.
70
Duffield, John and James Patterson, University of Montana, “Economics of Wild
Salmon Watersheds: Bristol Bay Alaska,” Prepared for Trout Unlimited, July 2006.
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DRAFT – FOR REVIEW AND COMMENT
locating North America’s largest open-pit mine on top of salmon spawning grounds within
the Bristol Bay Fisheries Reserve, established by the State of Alaska in 1972.
In 2010 an independent peer reviewed scientific study found that the disposal and storage of
toxic waste is a serious threat to the pristine environment of Bristol Bay.71 It concluded that
the risks to wild salmon populations are “very high,” and that it is cause for significant
concern regarding the long-term abundance and sustainability of salmon in the region.72 The
Bristol Bay salmon fishery, which sustains the Indigenous Peoples, produces roughly half of
the world’s commercial supply of wild sockeye salmon.73
The project is at the advanced exploration stage and to date there has been no meaningful
attempt to obtain the consent of the impacted indigenous communities, their tribal
governments and native corporations. In 2010, nine Indigenous Tribes in the region also
petitioned the U.S. Environmental Protection Agency (EPA) to use its authority under the
Clean Water Act, Section 404(C) to protect Bristol Bay. 74 In February, 2011 the EPA
responded and announced that they will conduct the "Bristol Bay Scientific Assessment" on
the impacts in the Nushagak and Kvichak Watersheds from future large-scale development
that may affect water quality and Bristol Bay's salmon fishery. The impacted tribes have filed
a court case in Alaska challenging the State with regard to the issuance of permits for the
project.75 Based on its potential impacts on the Indigenous Peoples' rights, 29 investor
groups have signed a letter to the US Federal Government expressing their concerns regarding
the project.76
Despite encountering unprecedented opposition from Bristol Bay residents, 80% of whom
express their opposition to the mine, Anglo-American continues to aggressively pursue
authorization to proceed to exploitation.77 It has engaged a consulting firm to provide a facade
71
Ecology and Environment Inc., “An Assessment of Ecological Risk to Wild Salmon Systems
from Large-Scale Mining in the Nushagak and Kvichak Watersheds of the Bristol Bay Basin”, October
2010.
72
73
74
Ibid.
Bob Waldrop, Executive Director, Bristol Bay Regional Seafood Development Association.
http://yosemite.epa.gov/R10/ECOCOMM.NSF/bristol+bay/faq
75
Nunamta Aulukestai et al. v. State of Alaska, Complaint for Declaratory and Injunctive Relief,
July 29, 2009, available at http://www.trustees.org/Supporting%20Documents/Complaint.pdf. The
lawsuit challenges exploration permits issued to the Pebble Limited Partnership by the State of
Alaska, and contends that the State has violated the Alaska Constitution in repeatedly issuing
exploration permits without public notice and without analyzing whether exploration or the mine
itself are in the public interest.
76
Investor letter available at http://trilliuminvest.com/wp- content/uploads/2011/04/InvestorStatement-on-the-Proposed-Pebble-Mine.pdf
77
Craciun Research, “Bristol Bay Residents Views on Development,” September 18, 2009,
available at http://nunamtasurvey.info/NunamtaSurveyReport.pdf. Indigenous Peoples are supported
18
DRAFT – FOR REVIEW AND COMMENT
of ‘consultation’, while simultaneous ignoring this massive opposition of Indigenous Peoples
based on their legitimate and informed concerns regarding the potentially profound impacts of
Anglo American’s proposed project on their physical and cultural survival.
In 2006 the CERD issued a decision under its early warning and urgent action in relation to
case of the Western Shoshone. It instructed the U.S. government to ‘(a) Freeze any plan to
privatize Western Shoshone ancestral lands for transfer to multinational extractive industries
and energy developers; (b) Desist from all activities planned and/or conducted on the
ancestral lands of Western Shoshone or in relation to their natural resources, which are being
carried out without consultation with and despite protests of the Western Shoshone
peoples’.78. The U.S. government failed to act on the recommendation and the extractive
companies involved in these controversial projects have continued to ignore the Shoshone
opposition. One of the major projects which the Shoshone had been strongly opposing is the
Cortez Hills project.79 This project involved the U.K. based Rio Tinto, through its wholly
owned subsidiary Kennecott, which was a partner in the Cortez Hills until 2008.,
in their opposition by an equivalent percentage of non-indigenous peoples and by the commercial,
sport fishing and jewellery retail industries who are united in their opposition to the development of
this project.
78
Early Warning and Urgent Action Procedure, Decision 1 (68), USA, CERD/C/USA/DEC/1, 11
April 2006 - http://daccess-ddsny.un.org/doc/UNDOC/GEN/G06/412/51/PDF/G0641251.pdf?OpenElement; US: Western Shoshone
bring major Barrick Gold project to a halt,
http://www.minesandcommunities.org/article.php?a=9718, 6 December 2009
79
Nevada federal judge refuses to grant injunction to halt Cortez Hills gold project, 27 Jan
2009 http://www.mineweb.com/mineweb/view/mineweb/en/page68?oid=77415&sn=Detail
19