Pitfalls and Pipelines - Philippine Indigenous Peoples Links

Chapter 2.6: Legal Strategy from the Local to the International
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holds that indigenous peoples are uncivilized, non-Christian and child-like
in nature. It was on this basis that the “discovering” European nations held
themselves superior to indigenous peoples.
Commencing with the 1863 Treaty of Ruby Valley between the Shoshone
and the Federal Government, Ms Cavanaugh-Bill traced the legal history
of the Shoshone struggle. Major events in that history included the
establishment of the Indian Claims Commission in 1946 and its claim
in 1962 (a year after the discovery of mining process that would enable
open-pit mining in Shoshone lands) that the Western Shoshone title
had been extinguished. She explained that following this, in 1973, a
Trespass Action was taken by the government against the Dann sisters.
Subsequent to this, in 1978, the Indian Claims Commission made
a valuation of Shoshone lands. The Department of the Interior then
accepted the Indian Claims Commission money based on its valuation in
payment for the Shoshone lands in 1979. The Western Shoshone never
accepted payment for their lands. A case was taken to the US Supreme
Court, but in a ruling in 1985 it failed to address the violations of the
Dann’s property rights and, based on a narrow technical argument, upheld
the payment transaction between the Indian Claims Commission and the
Department of the Interior.
Having exhausted local remedies, the Danns took their case to the Inter-
American Commission on Human Rights, which in 2002 found against
the U.S. It cited violations of the right to property, the right to due process
and the right to equality under the law. This ruling was supported by the
Early Warning Urgent Action decision of the Committee on the Elimination
of Racial Discrimination (CERD) in 2006 against the US government.
The CERD reconfirmed its decision in 2008. The decision addressed
protections afforded to sacred sites in the context of mining operations
and the rights to culture and health. In 2007, the CERD also made a
recommendation to Canada regarding extraterritorial regulation of it
mining companies, such as Barrick Gold and others.
Western Shoshone Territory is one of the world’s largest gold producing
areas with many of the major gold companies, including Barrick,
Newmont, and Kennecott/Rio Tinto. There are many other Canadian junior
companies who are exploring. Mining in Shoshone lands is governed by
the 1872 Mining Law, which applies to all “federal” lands. It is open-pit
cyanide heap leach mining with each mine pumping out of up to 70,000
gallons of water per minute. In addition to mining projects, Shoshone
lands are also home to nuclear testing and nuclear waste disposal.