Pitfalls and Pipelines - Philippine Indigenous Peoples Links

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278 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries above, the ILO was also creating standards with respect to indigenous peoples. After first developing standards designed to free indigenous peoples from slavery-like conditions, in 1957 the ILO adopted Convention 107 on Indigenous and Tribal Populations, 20 which recognized for the first time in international law that indigenous peoples’ land rights derive from custom and are independent of any act of the state which they may, in any case, precede. 21 The 1957 Convention had an assimilationist intent and was aimed at securing indigenous peoples’ rights as an interim protective measure while the plan was to gradually incorporate them into the national mainstream. By the 1980s, it was recognized that this approach was no longer appropriate, considering the developments in international human rights laws and the need recognize the aspirations indigenous peoples had to exercise control over their own development. Therefore in 1989, the ILO adopted a revised Convention on Indigenous and Tribal Peoples (no 169). 22 ILO Convention 169 is the only international treaty, which is specifically dedicated to indigenous peoples, covering areas such as non-discrimination, special safeguard measures, and the right to decide development priorities. It contains an explicit reference to indigenous peoples’ FPIC in the context of relocation. It also recognizes indigenous peoples’ right to “decide their own priorities for the process of development” and requires that states consult with them through their representative institution, “with the objective of achieving agreement or consent to the proposed measures.” 23 Although its wording is weaker than the 2007 UN Declaration on the Rights of Indigenous Peoples with regard to FPIC in general, 24 it is a legally binding international instrument open to ratification, which means that those countries who have signed it need to ensure they implement its provisions in their own domestic legislation. To date 20 countries have ratified it, which are mostly in Latin America. 25 Although the focus of the ILO is on labor issues, there are other conventions that could be used to a community’s advantage. For instance, the ILO published a guide on how Convention 111 on Discrimination (Employment or

Chapter 2.7: International Processes and Complaints Mechanisms 279 Occupation) could be invoked if traditional livelihoods were under threat from an extractive industry project. The advantage of Convention 111 is that many more countries have ratified it than ILO 169. 26 The ILO has developed various means of supervising the application of conventions. Governments who have ratified conventions are required to regularly report to the ILO on their implementation. A Committee of Experts can then make observations or direct requests to states. There is a complaint procedure, and special measures, if a state is not complying with a convention. Thanks however to the tripartite nature of the ILO, it is not that easy for a community to invoke, unless there is a friendly trade union who would support, or in the case of the Saami their parliament makes inputs via the Norwegian government. 27 A good example of this in action is that in March 2010, the ILO also formally requested that Goldcorp’s Marlin mine in Guatemala be suspended, along with several other projects in Guatemala, due to the excessive number of complaints the ILO had received from NGOs and local communities. The government initially said that it would not comply with the request even though, as a signatory to ILO Convention 169, they were legally obligated to do so. They eventually conceded they had to comply, but to date have not taken the necessary action. 28 2.7.2 Voluntary Codes of Multinationals The mining industry, oil and gas industries—particularly articulated through the industry bodies the International Council on Mining and Metals (ICMM) and International Petroleum Industry Environmental Conservation Association (IPIECA)—have laid great emphasis on voluntary standards and mechanisms. There are a vast and potentially conflicting variety of these standards. Extractive companies are, under pressure, gradually accepting the need to respond, and creating social, environmental and human rights policies. These

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