Pitfalls and Pipelines - Philippine Indigenous Peoples Links
Pitfalls and Pipelines - Philippine Indigenous Peoples Links Pitfalls and Pipelines - Philippine Indigenous Peoples Links
138 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries 2.2.2 Extractive Industries Legislation As previously noted, legislating for indigenous rights is frequently at odds with legislation governing, and often supporting, the extractive industries. The concerns of government are primarily to maximize revenue. This can be done via a limited focus on how much they can gain from royalties on profits and taxes, but generally is also concerned with creating an enabling environment for extractive companies. In her 2009 Manila Conference presentation, Mina Setra of AMAN (Indigenous Peoples Alliance of the Archipelago) gave an example of this with regard to the enactment of the 2009 Indonesian Law (no 4/2009) on Coal and Mineral Mining. The law fails to address indigenous peoples’ rights and interests, as it allows the government to easily reclassify indigenous and forest lands in order to facilitate the entrance of miners. It also only recognizes direct negative impacts to peoples’ lives within the immediately affected area, and only provides for the compensation or filing of lawsuits in cases of conflict. Finally, it also allows for the criminalization of those opposing projects. 11 In January 2012, the government went a step further in the Land Procurement for The Public Interest Law (no. 2 /2012) allowing the government to acquire land from citizens in “the public interest,” with no right of appeal, and compensation only available upon proof of certification of ownership, which few indigenous peoples would be able to provide. It is seen as a direct threat to indigenous peoples’ rights. 12 Historically, many states nationalized their mining industries, especially where minerals were essential for development, or for the state’s ability to wage war. With the liberalization agenda of the 1980s, many states rewrote their mining laws. They were often assisted in this by the World Bank, whose influence over indebted countries at the time was great. The Bank’s message was that transnational mining companies needed reassurance and incentives to invest in mining in developing countries. 13 In 1988, the Bank’s Mining Unit invited 45 major mining companies to prescribe how Southern states
Chapter 2.2: Challenges at the National Policy Level 139 should behave towards mining companies, and high up the list was the need to review mining regulations. The next year of codes was launched in the next year. 14 This led to a huge “rush to the bottom” in terms of providing tax breaks and incentives for companies, which is still pretty much the dominant model of development for extractive industries. It is noteworthy, however, that since the financial crisis, there has been a shift in power relations between companies and governments. Rising commodity prices have seen growing profits for the companies, and questions as to whether the “legal owners” of the resources (i.e., in their view, governments) are receiving enough benefits. Nationalization is still—with a few notable exceptions, such as South Africa and Bolivia 15 —off the agenda. Many countries, however, have been talking about, or actually changing, their mining revenue laws to increase potential revenues. Examples of such countries include ones as diverse as Australia, Brazil, Guatemala, and Mongolia. 16 Such acts still fit with the overriding concern of states to maximize revenues. The key question that is often asked around extractive industries, however, is how much the nation really benefits from such revenues. The contentious issue of exploitation of oil, gas and minerals often leading to lower than expected levels of national economic growth is known as the “resource curse.” It basically revolves around concerns such as a potential deterioration of terms of trade of manufacturing goods against primary commodities and exchange rate appreciation (known collectively as “Dutch disease”), revenue volatility from extraction, the “enclave” nature of the extractive industries, and an increase in corruption, weak governance and conflict. 17 Whether a country can develop based on its resources seems to depend on a number of interrelated factors. It is clear that some countries are less prone to the resource course than others, with oft-quoted positive examples, including Botswana and Chile (and allegedly in the early days of their development, Australia and the United States). 18 The Oxford University academic Paul Collier has created a Natural Resources Charter, which attempts to debate a set of principles for governments
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138 <strong>Pitfalls</strong> <strong>and</strong> <strong>Pipelines</strong>: <strong>Indigenous</strong> <strong>Peoples</strong> <strong>and</strong> Extractive Industries<br />
2.2.2 Extractive Industries Legislation<br />
As previously noted, legislating for indigenous rights is<br />
frequently at odds with legislation governing, <strong>and</strong> often supporting,<br />
the extractive industries. The concerns of government<br />
are primarily to maximize revenue. This can be done via<br />
a limited focus on how much they can gain from royalties on<br />
profits <strong>and</strong> taxes, but generally is also concerned with creating<br />
an enabling environment for extractive companies.<br />
In her 2009 Manila Conference presentation, Mina Setra<br />
of AMAN (<strong>Indigenous</strong> <strong>Peoples</strong> Alliance of the Archipelago)<br />
gave an example of this with regard to the enactment of<br />
the 2009 Indonesian Law (no 4/2009) on Coal <strong>and</strong> Mineral<br />
Mining. The law fails to address indigenous peoples’ rights<br />
<strong>and</strong> interests, as it allows the government to easily reclassify<br />
indigenous <strong>and</strong> forest l<strong>and</strong>s in order to facilitate the entrance<br />
of miners. It also only recognizes direct negative impacts to<br />
peoples’ lives within the immediately affected area, <strong>and</strong> only<br />
provides for the compensation or filing of lawsuits in cases of<br />
conflict. Finally, it also allows for the criminalization of those<br />
opposing projects. 11 In January 2012, the government went a<br />
step further in the L<strong>and</strong> Procurement for The Public Interest<br />
Law (no. 2 /2012) allowing the government to acquire l<strong>and</strong><br />
from citizens in “the public interest,” with no right of appeal,<br />
<strong>and</strong> compensation only available upon proof of certification<br />
of ownership, which few indigenous peoples would be able<br />
to provide. It is seen as a direct threat to indigenous peoples’<br />
rights. 12<br />
Historically, many states nationalized their mining industries,<br />
especially where minerals were essential for development,<br />
or for the state’s ability to wage war. With the liberalization<br />
agenda of the 1980s, many states rewrote their mining<br />
laws. They were often assisted in this by the World Bank,<br />
whose influence over indebted countries at the time was great.<br />
The Bank’s message was that transnational mining companies<br />
needed reassurance <strong>and</strong> incentives to invest in mining in developing<br />
countries. 13 In 1988, the Bank’s Mining Unit invited<br />
45 major mining companies to prescribe how Southern states
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