Pitfalls and Pipelines - Philippine Indigenous Peoples Links
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Pitfalls and Pipelines - Philippine Indigenous Peoples Links

Pitfalls and Pipelines - Philippine Indigenous Peoples Links Pitfalls and Pipelines - Philippine Indigenous Peoples Links

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320 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries Conference delegates raised the fact that indigenous peoples had already seen decades of failed consultations, manipulation and imposed tribal councils. Now this same practice was continuing under the guise of “corporate social responsibility” and the co-option of the language of FPIC by companies, who hire anthropologists and consultants to come in to manipulate communities. There was a risk that this was resulting in the creation of new divisions in communities, while according greater power to corporations and detracting from the fundamental question of land rights. A number of participants raised the fact that even where there were laws around consultation, these consultations were not conducted in an appropriate or adequate manner and compensation was often not provided to communities. It was therefore crucial to empower communities on how to use available laws to advocate and lobby for their rights. Ms Simms gave a specific example of a land claim where consent was incorporated as a binding requirement for entry and access within the context of the Inuit peoples’ 1993 Nunavut Final Agreement (NFA). In the context of a planned uranium mine within the NFA territory, however, it appears that consent is only being granted at the “executive level,” i.e., by the Designated or Regional Inuit Organization. Meanwhile at the community level there is generally only consultation without the requirement for consent. As a result, issues such as impacts to traditional livelihoods and the compatibility of mining with the worldvision of the people have not been addressed. Another example provided by Ms Simms of where consent had been entrenched in laws and agreements was the 2002 Yukon Oil and Gas Act and the bilateral agreements that were signed in 2003 between the Government of Yukon and the Kaska Nation, which required consent for all new developments in their territories. Ms Simms pointed out, however, that the context had recently changed in the Yukon with the government attempting to move away from the requirement to obtain consent and objecting to the terminology of FPIC on the grounds that it is perceived as being primarily a veto power.

Chapter 2.8: Importance of Free, Prior and Informed Consent 321 The issue of FPIC as a veto comes up time and again with the extractive industries. The argument deployed is that FPIC could be the veto of just one individual in a community. It is clear that FPIC is expressed as a collective right, however, manifest in the traditional decision making system of the peoples concerned. How consent is reached within indigenous communities is subject to the norms and traditions of collective decision making. But more importantly, FPIC is inextricably linked to a whole range of rights protected by international law, including rights to self-determination, development, cultural identity, autonomy, and participation. Conflating FPIC simply with a veto right ignores the range of other rights that require the implementation of FPIC in order to be upheld. 17 Another issue is that too often extractive projects are justified—with an accompanying denial of indigenous rights— under the guise of “national development.” The argument is that such “development” supersedes the rights of communities to defend their more sustainable economy and values. This not only ignores the basis of “rights-based development,” but it specifically denies the right of indigenous peoples to FPIC. The 1993 Vienna World Conference on Human Rights clearly states that “while development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights.” 18 Oxfam Australia points out that respect for the right of FPIC is not only consistent with the principles of good governance, it is essential to the achievement of the Millennium Development Goals of halving world poverty by 2015. 19 Indigenous peoples are often at great pains to emphasize that they are not anti-development. It is control over development that is the key issue. Their reservations about extractive industry projects on their territories have more to do with unrecognized land rights, the legacies of previous extractive projects, and a lack of evidence that their community will obtain more benefits than costs. An Afro-Colombian leader puts it well by saying that “Free, prior and informed consent should be in the relationship about how we see our right to development… When we say ‘no,’ we are saying we have different rights to different paths.” 20

Chapter 2.8: Importance of Free, Prior <strong>and</strong> Informed Consent<br />

321<br />

The issue of FPIC as a veto comes up time <strong>and</strong> again with<br />

the extractive industries. The argument deployed is that FPIC<br />

could be the veto of just one individual in a community. It<br />

is clear that FPIC is expressed as a collective right, however,<br />

manifest in the traditional decision making system of the peoples<br />

concerned. How consent is reached within indigenous<br />

communities is subject to the norms <strong>and</strong> traditions of collective<br />

decision making. But more importantly, FPIC is inextricably<br />

linked to a whole range of rights protected by international<br />

law, including rights to self-determination, development, cultural<br />

identity, autonomy, <strong>and</strong> participation. Conflating FPIC<br />

simply with a veto right ignores the range of other rights that<br />

require the implementation of FPIC in order to be upheld. 17<br />

Another issue is that too often extractive projects are justified—with<br />

an accompanying denial of indigenous rights—<br />

under the guise of “national development.” The argument is<br />

that such “development” supersedes the rights of communities<br />

to defend their more sustainable economy <strong>and</strong> values. This<br />

not only ignores the basis of “rights-based development,” but<br />

it specifically denies the right of indigenous peoples to FPIC.<br />

The 1993 Vienna World Conference on Human Rights clearly<br />

states that “while development facilitates the enjoyment of all<br />

human rights, the lack of development may not be invoked to<br />

justify the abridgement of internationally recognized human<br />

rights.” 18 Oxfam Australia points out that respect for the right<br />

of FPIC is not only consistent with the principles of good governance,<br />

it is essential to the achievement of the Millennium<br />

Development Goals of halving world poverty by 2015. 19<br />

<strong>Indigenous</strong> peoples are often at great pains to emphasize that<br />

they are not anti-development. It is control over development<br />

that is the key issue. Their reservations about extractive industry<br />

projects on their territories have more to do with unrecognized<br />

l<strong>and</strong> rights, the legacies of previous extractive projects,<br />

<strong>and</strong> a lack of evidence that their community will obtain more<br />

benefits than costs. An Afro-Colombian leader puts it well by<br />

saying that “Free, prior <strong>and</strong> informed consent should be in<br />

the relationship about how we see our right to development…<br />

When we say ‘no,’ we are saying we have different rights to<br />

different paths.” 20

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