Pitfalls and Pipelines - Philippine Indigenous Peoples Links

262 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries
of local farmers who were beaten, threatened, hooded, and
held captive after being attacked by the police during a march
by farmers against the Rio Blanco copper mine in Peru. Two
women were sexually abused and five claimants were shot,
one losing an eye. The case was taken before the UK High
Court, but the company settled for an undisclosed amount
before the case came to trial. One of the lawyers involved,
Richard Meeran of Leigh Day and Co., noted, “This constitutes
a salutary lesson for multinationals operating in developing
countries.” 32
Stuart Kirsch in the 2009 Manila Conference, reviewed
the lessons learned from the case of the OK Tedi copper and
gold mine in Papua New Guinea. By the early 1990s the Ok
Tedi River had been declared almost biologically dead following
the annual dumping of some 90 million tons of mine
waste in the river by the Australian company BHP. In 1994
the people living downstream from the mine took a legal case
against BHP in Australia. The Government of Papua New
Guinea, allegedly at the behest of BHP, responded by drafting
legislation criminalizing the taking of legal action against
them in foreign courts.
The Australian court decided that it could not hear a case
of damage to property in another country and instead focused
on the fact that the mine had violated the peoples’ subsistence
rights. The case was eventually settled out of court in1996.
Mr Kirsch argued that the court’s recognition of subsistence
rights under common law was an important precedent that
could be invoked elsewhere. He also maintained that focusing
on subsistence rights was a good approach to addressing
impacts of extractive projects, as these rights are based on
indigenous practices. He suggested that better mechanisms to
compile and circulate relevant legal precedents were necessary.
As part of the settlement reached in the OK Tedi case
BHP agreed to build tailing facilities, and more than $1billion
has been lodged in a trust fund. Most of this money, however,
goes to the state, with very little of it reaching the impacted
indigenous peoples. In addition, the mining company failed
to stop discharging mine wastes into the river and the mine
has continued operating—and polluting the river—in order