Pitfalls and Pipelines - Philippine Indigenous Peoples Links

256 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries
nomic, social, cultural, and environmental rights, with a specific
provision for recognizing collective rights. The African
Charter provided for the creation of the African Commission
on Human and Peoples’ Rights (ACHRP), a mechanism
which in turn led to the establishment of the African Court on
Human and Peoples’ Rights.
As the only regional human rights instrument to specifically
reference peoples’ rights, it may be hoped it would be
leading the way on indigenous cases. This is not the case
though, as African states in general have resisted the idea
of particular ethnic groups having specific inherent rights,
instead arguing that all native Africans are “indigenous,” in
the sense of being pre-colonial. 15 This has been countered
by the ACHRP, which in 2000 set up the Working Group on
Indigenous Populations/Communities in Africa, and in 2006
published a summary of its work on the issue, clarifying—and
dispelling some misconceptions around—the definition of
indigenous peoples in Africa. 16
The ACHRP did not take up the chance to address the
issues of indigenous peoples’ rights when it heard the 2002
case of The Social and Economic Rights Centre v Nigeria, concerning
the Ogoni and Shell. 17 Although it gave a positive
determination in holding the Federal Government of Nigeria
in violation of a number of the Charters’ articles, it failed to
really address the issue of indigenous rights. The fundamental
case from the ACHRP, which did affirm the rights of indigenous
peoples’ to own their customary lands and to FPIC, is
the 2010 decision in Endorois Welfare Council v Kenya. In doing
so, the ACHPR referred to both the UN Declaration on the
Rights of Indigenous Peoples and the Inter-American Court’s
Saramaka case in coming to their conclusions. 18
Communities can directly lodge a complaint with the
ACHPR against a State Party for violations of a right guaranteed
by the African Charter, which includes a states’ duty
to protect from harm by non-state actors, such as extractive
industry companies. The African Commission has set up a
Working Group on Economic, Social and Cultural Rights,
which is currently working on a set of guidelines aiming at
detailing states’ obligations under the Charter. The draft