Consultation or Consent? Indigenous People's Participatory Rights with. regard to the Exploration of Natural Resources

Transcription

1 Consultation or Consent? Indigenous People's Participatory Rights with regard to the Exploration of Natural Resources according the UN Declaration on the Rights of Indigenous Peoples by Eva Linde Thesis submitted in conformity with the requirements for the degree of Masters of Law (LL.M) Graduate Department of Law University of Toronto Copyright by Eva Linde 2009

2 Consultation or Consent? Indigenous People's Participatory Rights with regard to the Exploration of Natural Resources according the UN Declaration on the Rights of Indigenous Peoples Masters of Law (LL.M), 2009 Eva Linde Faculty of Law UNIVERSITY OF TORONTO Abstract This thesis examines the development of the right of indigenous peoples to natural resources on their lands and territories in international law. It examines international treaties, the jurisprudence of international courts and other international bodies, as well as the practice of international actors. A special focus is on the UN General Assembly Declaration on the Rights of Indigenous Peoples. The thesis describes the drafting process and the discussions that took place around the issue of land rights and natural resources, and uses this to draw conclusions on the development of a new international customary law of an indigenous right to free, prior and informed consent with regard to natural resources.

3 III Table of content A. Introduction...1 B. The UN Declaration on the Rights of Indigenous Peoples...3 I. The Drafting Process... 4 II. Legal Significance of the UN Declaration...6 III. The Right to Lands, Territories and Natural Resources in the UN Declaration...8 C. The development of a right to free, prior and informed consent with regard to natural resources in international law...10 I. Background information concerning property right with regard to natural resources...10 II. Two ways to substantiate Aboriginal sovereignty over natural resources Property Rights in Natural Resources Rights over Natural Resources as part of Self-Determination...13 III. The Development of International Legal Principles with regard to Aboriginal Consent15 1. International Instruments Decisions and Recommendations of International Bodies...18 a) Inter-American Commission on Human Rights and Inter-American Court of Human Rights b) Reports of Human Rights Bodies c) Policies of International Bodies IV. Concluding observations with regard to the development of international law D. How does the UN Declaration reflect and reinforces this current status of international law?...46 E. The significance of rights over natural resources for the realization of indigenous rights to

4 their traditional lands F. Conclusion IV

5 V Bibliography I. Books and Journal Articles Alvarado, Leonardo J. Amiott, Jennifer A. Anaya, James S. Prospects and Challenges in the Implementation of Indigenous peoples' Human Rights in International Law: Lessons from the Case of Awas Tingni v. Nicaragua (2007) 24 Arizona Journal of International and Comparative Law 609. Environment, Equality, and Indigenous Peoples' Land Rights in the Inter-American Human Rights System: Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua (2002) 32 Environmental Law 873. Divergent Discourses About International Law, Indigenous Peoples, and Rights over Lands and Natural Resources: Towards a Realist Trend (2005) 16 Colorado Journal of International Environmental Law and Policy, 237. Indigenous Peoples in International Law, 2nd ed. (New York: Oxford University Press 2004). Indigenous Peoples' Participatory Rights in Relation to Decisions about Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples have in Lands and Resources (2005) 22 Arizona Journal of International and Comparative Law 7. Anaya, S. James & Grossman, Claudio Anaya, James S. & Wiessner, Siegfried Anaya, S. James & Williams, Robert A. Jr. Barrera-Hernandez, Lila The Case of Awas Tingni v. Nicaragua: A Step in the International Law of Indigenous Peoples (2002) 19 Arizona Journal of International and Comparative Law 1. The UN Declaration on the Rights of Indigenous Peoples: Towards re-empowerment (2007) online: JURIST, University of Pittsburgh School of Law, 3 October 2007, available at: The Protection of Indigenous Peoples' Rights over Lands and Natural Resources Under the Inter-American Human Rights System (2001) 14 Harvard Human Rights Journal 33. Sovereignty over Natural Resources under Examination:

6 The Inter-American System for Human Rights and Natural Resource Allocation (2006) 12 Annual Survey of International and Comparative Law 43. VI Brownlie, Ian Cariño, Joji Castellino, Joshua Cirkovic, Elena Clavero, Bartolomé Daes, Erica-Irene Davidson, Scott Eide, Asbjørn & Alfredsson, Gudmundur Errico, Stefania Errico, Stefania Principles of Public International Law, 7th ed. (Oxford: Oxford University Press 2008). Indigenous Peoples' Rights to Free, Prior, Informed Consent: Reflections on Concepts and Practice (2005) 22 Arizona Journal for International and Comparative Law 19. Conceptual Difficulties and the Right to Indigenous Self- Determination, in: Nazila Ghanea & Alexandra Xanthaki, eds., Minorities, Peoples and Self-Determination (Leiden: Martinus Nijhoff Publishers 2005), 55. Self-Determination and indigenous peoples in international law (2006) 31 American Indian Law Review, 375. The Indigenous Rights of Participation and International Development Policies (2005) 22 Arizona Journal of International and Comparative Law 41. Indigenous Peoples' Rights to Land and Natural Resources, in: Nazila Ghanea & Alexandra Xanthaki, eds., Minorities, Peoples and Self-Determination (Leiden: Martinus Nijhoff Publishers 2005) 75. The Inter-American Human Rights System (Aldershot, GB: Dartmouth 1997). Introduction, in: Asbjørn Eide & Gudmundur Alfredsson, ed., The Universal Declaration of Human Rights A Common Standard of Achievement (The Hague: Martinus Nijhoff Publishers 1999). The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview (2007) 7 Human Rights Law Review 741. The World Bank and Indigenous Peoples: the Operational Policy on Indigenous Peoples (O.P ) Between Indigenous Peoples' Rights to Traditional Lands and to Free, Prior and Informed Consent (2006) 13 International Journal on Minority and Group Rights 367.

7 VII Getches, David H. Gilbert, Jérémie Henderson, James Sarkej Hillemanns, Carolin Holder, Cindy Huff, Andrew Klug, Francesca Kreimer, Osvaldo MacKay, Fergus Indigenous Peoples' Rights to Water Under International Norms (2005) 16 Colorado Journal of International Environmental Law and Policy 259. Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples (2007) 14 International Journal on Minority and Group Rights 207. Mikmaq Tenure in Atlantic Canada (1995) 18 Dalhousie Law Journal 196. UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights (2003) online: 4 German Law Journal 1065 at 1065, available at: Self-determination as a basic human right: the Draft UN Declaration on the Rights of Indigenous Peoples, in Avigail Eisenberg & Jeff Spinner-Halev, Minorities within Minorities: Equality, Rights and Diversity (Cambridge: Cambridge University Press: 2004), 294. Indigenous Land Rights and the New Self-Determination (2005) 16 Colorado Journal of International Environmental Law and Policy 295. The Universal Declaration of Human Rights: 60 years on (2009) 2 Public Law 205. The Future Inter-American Declaration on the Rights of Indigenous Peoples: A Challenge for the Americas, in: Cynthia Price Cohen, ed., Human Rights of Indigenous Peoples (Ardsley, N.Y.: Transnational Publishers 1998) 63. Indigenous Peoples' Right to Free, Prior and Informed Consent and the World Bank's Extractive Industries Review (2004) 4 Sustainable Development Law and Policy 43. The Draft World Bank Operational Policy 4.10 on Indigenous Peoples: Progress or More of the Same? (2005) 22 Arizona Journal of International and Comparative Law 65.

8 VIII Macklem, Patrick Matas, David Oppenheim, Lassa Re, Edward D. Sanders, Douglas Shaw, Malcolm N. Stellato Gabrielli, Joy Washington College of Law at American University Indigenous Recognition in International Law: Theoretical Observations (forthcoming). The Universal Declaration of Human Rights: fifty years later (2000) 46 McGill Law Journal 203. International Law A Treatise, vol. 1, 9th ed., ed. by Sir Robert Jennings and Sir Arthur Watts (Harlow, Essex: Longman 1992). The Universal Declaration of Human Rights: effective remedies and the domestic courts (2003) 33 California Western International Law Journal 137. The Legacy of Deskaheh: Indigenous Peoples as International Actors, in: Cynthia Price Cohen, ed. The Human Rights of Indigenous Peoples (Ardsley, N.Y.: Transnational Publishers, 1998), 73. International Law, 6th ed. (Cambridge: Cambridge University Press 2008). Indigenous Peoples and Land Rights (Roma: Lateran University Press 2003). Updates from the Regional Human Rights Systems (2005) online: 13 Human Rights Brief, 25 at 28, available at: Wiessner, Siegfried Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples (2008) 41 Vanderbilt Journal of Transnational Law Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis (1999) 12 Harvard Human Rights Journal 57. Xanthaki, Alexandra Xanthaki, Alexandra Indigenous Peoples and United Nations Standards (Cambridge: Cambridge University Press 2007). The Right to Self-Determination: Meaning and Scope, in: Nazila Ghanea & Alexandra Xanthaki, eds., Minorities, Peoples and Self-Determination (Leiden: Martinus Nijhoff Publishers 2005), 15.

9 IX II. Documents of International Organizations 1. United Nations Documents Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/38/Rev.2 (2003), available at: Daes, Erica-Irene, Indigenous Peoples and their Relationship to Land Final Working Paper Prepared by the Special Rapporteur, UN Sub-Commission for the Promotion and Protection of Human Rights, UN Doc. E/CN.4/Sub.2/2001/21 of 11 June Martinez-Cobo, José R., Study of Discrimination Against Indigenous Populations, vol. V, Conclusions, Proposals and Recommendations, UN Doc. E/CN.4 Sub.2 /1983/21/Add.8, available at: Nieva, Eduardo, Ponencia sobre las Industrias Extractivas en Territorios Indígenas y la Legislación Internal en las Americas - Derecho de Consulta y Participación. Consentimiento previa, libre e informado (2004) Inter-American Commission on Human Rights, General Hearing (4 March Washington, D.C.) Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003), approved by the U.N. Sub-Commission on the Promotion and Protection of Human Rights, Res. 2003/16 of 13 August 2003, E/CN.4/Sub.2/2003/L.11, available at: Tamang, Parshuram, An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices, U.N. Workshop on Free, Prior and Informed Consent (New York, January 2005), U.N. Doc PFII/2004/WS.2/8. UN Commission on Human Rights, Chairman's summary of proposals, Eleventh session, in: Commission on Human Rights, Sixty-second session, UN Doc. E/CN.4/2006/79 (22 March 2006). UN Commission on Human Rights, Chairperson's summary of proposals, Sixty-second session, UN Doc. E/CN.4/2005/WG.15/CRP. 7 (20 December 2005). UN Commission on Human Rights, Draft report of the working group established in accordance with the Commission on Human Rights resolution 1995/32, Sixty-first session, UN

10 X Doc. E/CN.4/2004/WG.15/CRP.7 (16 December 2004). UN Committee of the International Convention against all Forms of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Australia, CERD/C/AUS/CO/14, 14 April UN Committee of the International Convention against all Forms of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Ecuador, CERD/C/62/CO/2, 21 March UN Committee of the International Convention against all Forms of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Nigeria, CERD/C/NGA/CO/18, 1 November UN Committee of the International Convention against all Forms of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Suriname, CERD/C/64/CO/9, 28 April UN Committee of the International Convention against all Forms of Racial Discrimination, General Recommendation XXIII on Indigenous Peoples, UN Doc. CERD/C/365, in A/52/18, Annex V (1997). UN Convention on Biological Diversity, June 5, 1992, 31 I.L.M. (1992), 818, available at: UN Convention on Biological Diversity, Conference of Parties Decision V/16 on Article 8(j) and related provisions, available at: United Nations Development Group Fact Sheet, May 2009, available at: United Nations Development Group, Guidelines on Indigenous Peoples' Issues, February 2008, available at: UN Development Programme, Regional Initiative on Indigenous Peoples' Rights and Development (RIPP), launched in September 2004, available at:

11 UN Development Programme, UNDP and Indigenous Peoples: a Practice Note on Engagement (2001), at para. 3, available at: XI UN ECOSOC Resolution 1982/34 of 7 May 1982, UN Doc. E/RES/1982/34 UN ECOSOC, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Prevention of Discrimination and Protection of Indigenous Peoples Indigenous peoples' permanent sovereignty over natural resources, Final report of the Special Rapporteur, Erica-Irene A. Daes, E/CN.4/Sub.2/2004/30/Add.1, 12 July UN ESCOR, 45 th Session, 35 th Meeting, at 2, UN Doc. E/CN.4/Sub.2/1993/SR.35 (1994). UN GA, United Nations Declaration on Permanent Sovereignty over Natural Resources, UN Res (XVII) UN GA, United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 of 13 September 2007, available at: UN GA Resolution 61/295 of 13 September 2007, Annex, U.N. Doc. A/RES/61/295, available at UN Human Rights Committee, Concluding Observations on Canada, UN Doc. CCPR/C/79/Add.105 of 7 April UN Human Rights Committee, General Comment No. 23 (50): The rights of minorities (Article 27), UN Doc. CCPR/C/21/Rev.1/Add.5 of 8 April UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc. A/HRC/9/9 of 11 August UN Human Rights Council, Working Group of the Commission on Human Rights to Elaborate a Draft Declaration in Accordance with Paragraph 5 of the General Assembly Resolution 49/214 of 23 December 1994, UN Doc. A/HRC/RES/1/2 of 29 June United Nations Department of Public Information, Indigenous People: The Significance of Land to Indigenous Peoples, DPI/2068, , October United Nations Office at Geneva, News and Media, UN Experts Welcome Canadian House

12 of Commons Endorsement of the Declaration of the Rights of Indigenous Peoples, 18 April 2008, online at F2B67C18A6B662C125742F ?OpenDocument. XII UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Draft Declaration on the Rights of Indigenous Peoples, UN Doc. E/CN.4/1995/2; E/CN.4/Sub.2/1994/56, October 28, 1994, reprinted in 34 I.L.M , adopted by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, 46th Session, 1994, Resolution 1994/45. UN Working Group on Indigenous Populations, Report of the Working Group on Indigenous Populations on its eleventh session, UN Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, 45 th Session, Annex I, Agenda Item 14 at 50-51, UN Doc. E/CN.4/Sub.2/1993/ Other International Organizations American Convention on Human Rights of 1969, OAS Treaty Series No. 36, 1144 U.N.T.S American Declaration on the Rights and Duties of Man of 1948, OEA, AG/RES 1591 (XXVIII-O/98); OEA/Ser.L.V./II 82 doc.6 rev.1 at 17 (1992). Australian Human Rights Commission, United we stand Support for United Nations Indigenous Rights Declaration a watershed moment for Australia, 3 April 2009, online at Commission of the European Union, Report from the Commission to the Council Review of Progress of Working with Indigenous Peoples, COM/2002/0291 of 11 June 2002, available at: =COMfinal&an_doc=2002&nu_doc=291. European Union Council of Ministers, Resolution 13461/98 on Indigenous Peoples within the Framework of the Development Cooperation of the Community and Member States, 30 November 1998, available at: Goodland, Robert, Economic Development and Tribal Peoples: Human Ecologic Considera-

13 XIII tions (Washington D.C.: World Bank Group Study 1982). Inter-American Charter of Social Guarantees of 1948, International Conferences of American States, Second Supplement, , Washington, D.C.: Pan American Union, 1958, 262. Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96 Doc. 10 rev. 1, 24 April 1997, available at: Inter-American Development Bank, Environmental Committee, Strategies and Procedures on Sociocultural Issues as Related to the Environment (Washington, D.C.: June 1990), available at: Inter-American Development Bank, Operational Policy on Indigenous Peoples and Strategy for Indigenous Development, OP-765 and strategy GN , adopted on 22 February 2006, available at: Inter-American Development Bank, Report on the Eights General Increase in the Resources of the Bank (1994), Doc. AB International Labour Organization, Convention No. 107 of 1957 on the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries, available at: International Labour Organization, Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, available at: International Labor Organization, Ratification chart for Convention No. 169, available at: OAS, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), 17 November 1988, OAS Treaty Ser. 69, Treaty A-52. OAS, American Convention on Human Rights, OAS Treaty Series No. 36, 1144 U.N.T.S OAS, American Convention on Human Rights, Chart of Signatures and Current Status of Ratifications, available at:

14 XIV v.ratif.htm. OAS, American Declaration on the Rights and Duties of Man, OEA, AG/RES 1591 (XXVI- II-O/98); OEA/Ser.L.V./II 82 doc.6 rev.1 at 17 (1992). OAS General Assembly Res (XIX-0/89), OAS General Assembly Proceedings, 19th Regular Session, Vol. 1 OEA/Ser.P/XIX.0.2, Washington, D.C OAS, Inter-American Commission on Human Rights, Annual Report 1996, OEA/Ser.L/V/II.95, doc 7, rev. Mar OAS, Inter-American Convention to Prevent and Punish Torture, 9 December 1985, OAS Treaty Ser. 67, Treaty A-51. OAS, Permanent Council, Committee on Judicial and Political Affairs, Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples, online at: OAS, Protocol of Buenos Aires of Amendment to the Charter of the OAS, 27 February 1967, OAS Treaty Ser. No. 1-A, Treaty B-31. OAS, Statute of the Inter-American Court of Human Rights, Adopted by the General Assembly of the OAS at its Ninth Regular Session in October 1979, Res World Bank, Comments on World Bank Management Response to the Final Report of the Extractive Industries Review, submitted by Indigenous Peoples' Organisations, 18 July 2004, available at: World Bank Group, Extractive Industries and Sustainable Development: An Evaluation of World Bank Group Experience, July 29, World Bank, Office of Environmental and Scientific Affairs, A Five-Year Implementation Review of OMS 2.34 ( ), World Bank, Projects Policy Department, June World Bank Operational Directive 4.20 on Indigenous Peoples, September 1991, available at: World Bank Operational Policy 4.10 Indigenous Peoples of 20 May 2005, available at: UAL/0,,contentMDK: ~pagePK: ~piPK: ~theSitePK:502184,00.

15 XV html. World Bank Round Table Discussion of Indigenous Representatives and the World Bank on the Revision of the World Bank's Indigenous Policy, 18 October 2002, available at: 02_eng_pdf. World Commission on Dams, Dams and Development: A New Framework for Decision-Making, 2000, available at: World Commission on Dams, Outline of the WCD, Introduction, available at: III. Case law Inter-American Commission on Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Report No. 27/98 of 3 March Inter-American Commission on Human Rights, Case of Yanomami Indigenous Community v. Brazil, Res. 12/85, Case 7615, Brazil, March 5, 1985, found in: The Situation of the Human Rights of Indigenous Peoples, OEA/Ser.L/V/II.108, doc. 62, (20 October 2000). Inter-American Commission on Human Rights, Complaint of the Inter-American Commission of Human Rights against the Republic of Nicaragua in the Case of the Mayagna (Sumo) Indigenous Community of Awas Tingni, reprinted in: Anaya, S. James & Grossman, Claudio, The Case of Awas Tingni v. Nicaragua: A Step in the International Law of Indigenous Peoples (2002) 19 Arizona Journal of International and Comparative Law 1 at 17 ff. Inter-American Court of Human Rights, Case of Maya Indigenous Communities of the Toledo District v. Belize, Case no , Report No. 40/04, OEA/Ser.L/V/II.122 doc rev 1, available at: Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, Am. Ct. H.R. (Ser C), No. 79. Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, Am. Ct. H.R. (Ser C), No. 79, Concurring Opinion of Judge Sergia García Ramírez in the Judgment on the Merits and Reparations,

16 reprinted in Anaya, S. James & Grossman, Claudio, The Case of Awas Tingni v. Nicaragua: A Step in the International Law of Indigenous Peoples (2002) 19 Arizona Journal of International and Comparative Law 1 at 449. XVI Inter-American Court of Human Rights, Case of Moiwana Village v. Suriname, Series C, No. 124 (June 15, 2005), available at: Inter-American Court of Human Rights, Case of Plan de Sanchez Massacre v. Guatemala (Reparations), IACtHR Ser. C 116, Judgment of 19 November Inter-American Court of Human Rights, Case of Yakye Axa Indigenous Community v. Paraguay, Series C, No. 125 (June 15, 2005), available at: IV. Other sources Amnesty international Canada, UN Declaration on the Rights of Indigenous Peoples: Canadian Parliament Calls for Implementation of Critical Universal Human Rights Instrument, 9 April 2008, online at International Network for Economic, Social & Cultural Rights, Case summary, Comunidad Yanomami, Caso No 7615, Resolución No 12/85, at: Radio New Zealand News, NZ to ratify UN indigenous declaration Sharples, 7 July 2009, online at Hagen, Robert, Position of the United States on the Rights of Indigenous Peoples, Press Release #204(07) by the United States Mission to the United Nations, 13 September 2007, available at:

17 1 A. Introduction For years, states in all parts of the world have allowed or closed their eyes to the deprivation of lands previously occupied by indigenous peoples. Or such lands have been destroyed by large scale logging, pollution, exploration of oil or gas, or the extraction of other natural resources and the construction of facilities and roads that go hand in hand with it. What participatory rights aboriginal peoples have with regard to natural resource exploitation and management has been the subject of much controversial debate over years. Is there a duty for the state to consult with aboriginal groups, and to what extent does their opinion have to be taken into account? Or is there even a duty to obtain their prior consent? The state of international law in this regard is by no means clear. The few existing treaties that deal with indigenous rights have not been ratified by the majority of states, and they partly reflect outdated perceptions of how to integrate aboriginals into society. On the other hand, many international bodies have been actively pursuing indigenous rights. At the forefront of this trend are the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, which in a number of cases have interpreted existing treaties to include indigenous rights. Furthermore, international institutions have adopted their own policies for dealing with aboriginal peoples' lands and resources that differ from one another. The recent Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly of the United Nations on 13 September 2007 (hereinafter: the UN Declaration or the Declaration ), states in Article 32 para. 2 that a state shall consult and cooperate in good faith with indigenous peoples in order to obtain their free and informed prior consent with regard to extraction and utilization of natural resources. 1 While a declaration by its nature does not have 1 United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 of 13 September 2007, available at:

18 2 legally binding effect, this paper is going to argue that the provision contained in Article 32 para. 2 is already part of customary international law and as such binding on all states. While the current state of the law is, as mentioned, confused, there has been a clear development over the years towards acknowledging participatory rights of aboriginal peoples. Even further, when examining the jurisprudence of international bodies and the activities of other international actors in this regard, it becomes clear that a new standard of international law has developed which recognizes that there is a duty to obtain the free, prior and informed consent of indigenous peoples when undertaking activities of exploration, use or extraction of natural resources on their traditional lands. To support this thesis, the paper is going to examine the evolution of the duty to obtain free, prior and informed consent in international instruments such as treaties, declarations, and acts by international bodies. It argues that the drafting process of the UN Declaration has been significantly influenced by those developments, and that the provision of the Declaration which requires states to seek the consent of indigenous peoples reflects the current state of international law. Section B gives an overview of the respective provision of the UN Declaration dealing with the right to lands and natural resources. It describes the drafting process and the opposition with which the Declaration was confronted, as well as explaining its legal significance. Part C describes the developments that have taken place in international law with regard to the right to free, prior and informed consent. The focus is especially on the relevant treaties and the jurisprudence and decisions of international bodies, which have advanced the law. But it also includes the policies of other international actors, which demonstrate a new understanding of the rights and obligations in this field.

19 3 Part D places the UN Declaration within the context of this evolving frame of law. It describes the discussions during the drafting process, especially with regard to land rights and the right to free, prior and informed consent, and shows how the state parties ultimately accepted such a right as the current state of the law. On the flip-side of the coin, the entrenchment of the right to free, prior and informed consent in the Declaration gives additional force to its establishment as a customary law norm. Finally, in Section E, the paper makes a moral argument that a right to free, prior and informed consent is necessary for the effective protection of aboriginal peoples' rights to their culture, traditions and lifestyle, because natural resources have a special significance for them. It takes up the common criticism that a duty to obtain consent gives too much power to a group over the general population of a state, and argues that such a right is, however, necessary and justified in order to preserve aboriginal identity. Section F concludes. B. The UN Declaration on the Rights of Indigenous Peoples For a long time there was no one comprehensive instrument on the protection of indigenous rights, but only sectoral provisions scattered in various international and regional agreements. When the UN Declaration was finally adopted by the General Assembly in 2007 by an unexpected landslide affirmative vote of 144 states with only four states against (United States, Canada, Australia and New Zealand) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russia, Samoa and Ukraine), this was seen as a clear victory for the indigenous cause.

20 4 I. The Drafting Process The Declaration has come a long way and has undergone much scrutiny, criticism and opposition from the presentation of the first draft in 1993 until the final adoption by the UN General Assembly in In 1982 the United Nations Economic and Social Council (ECOSOC) established a Working Group on Indigenous Populations with the task to draft standards concerning the rights of indigenous populations. 3 The Working Group conducted the drafting process in a partnership between experts and representatives of indigenous peoples. Every indigenous group that wanted to participate received five minutes to bring their complaints and concerns to the attention of the drafting group. 4 In 1993 the Working Group finally agreed on a Draft Declaration on the Rights of Indigenous Peoples. 5 It thereby went beyond its mandate by changing the terminology from populations to peoples, an issue that was very controverse with states for fear that the recognition as a people would arise claims of external self-determination. 6 The UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities adopted the draft without amendment in It then when through a seemingly never ending review in the UN Commission on Human Rights and was rather surprisingly adopted by the 2 For details on the drafting process, see e.g. Errico, Stefania, The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview (2007) 7 Human Rights Law Review 741; Gilbert, Jérémie, Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples (2007) 14 International Journal on Minority and Group Rights UN ECOSOC Resolution 1982/34 of 7 May 1982, UN Doc. E/RES/1982/34; for details of the process of establishing the Working Group see Sanders, Douglas, The Legacy of Deskaheh: Indigenous Peoples as International Actors, in: Cynthia Price Cohen, ed. The Human Rights of Indigenous Peoples (Ardsley, N.Y.: Transnational Publishers, 1998), Wiessner, Siegfried, Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples (2008) 41 Vanderbilt Journal of Transnational Law 1141 at 1153 [Wiessner, Indigenous Sovereignty ]. 5 Working Group on Indigenous Populations, Report of the Working Group on Indigenous Populations on its eleventh session, U.N. Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, 45 th Session, Annex I, Agenda Item 14 at 50-51, UN Doc. E/CN.4/Sub.2/1993/29. 6 See Wiessner, Siegfried, Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis (1999) 12 Harvard Human Rights Journal 57 at UN ESCOR, 45 th Session, 35 th Meeting, at 2, UN Doc. E/CN.4/Sub.2/1993/SR.35 (1994).

21 5 newly formed Human Rights Council in Thereafter, another year of discussion in the UN General Assembly followed before the Declaration was finally adopted on September 13, 2007 by a majority of 144 against four, with eleven abstentions. 9 The Declaration affirms indigenous peoples right to protect their cultures and traditions, and promotes education, health care and other human rights issues that affect indigenous groups. Perhaps most importantly, the Declaration explains that indigenous peoples have the right to selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 10 Furthermore, the Declaration affirms that indigenous peoples have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. 11 Disagreement on and opposition to the declaration were based on very fundamental issues. States critiqued the absence of a definition of indigenous peoples, and negated the very concept of collective rights in international law. 12 The inclusion of a right to self-determination was the cause of much debate and protest especially by the African states, Argentina, Brazil, and the United States, which were concerned that it would give rise to secessionist movements among indigenous groups. 13 Finally, many states opposed the provisions foreseeing restitution of traditional lands. 14 Considering this opposition to principles laying at the base of the Declaration, 8 Human Rights Council, Working Group of the Commission on Human Rights to Elaborate a Draft Declaration in Accordance with Paragraph 5 of the General Assembly Resolution 49/214 of 23 December 1994, UN Doc. A/HRC/RES/1/2 of 29 June UN GA Resolution 61/295 of 13 September 2007, Annex, U.N. Doc. A/RES/61/295, available at 10 Declaration on the Rights of Indigenous Peoples, supra note 1, Art Ibid. Art See Gilbert, supra note 2 at 215 ff. 13 Holder, Cindy, Self-determination as a basic human right: the Draft UN Declaration on the Rights of Indigenous Peoples, in Avigail Eisenberg & Jeff Spinner-Halev, Minorities within Minorities: Equality, Rights and Diversity (Cambridge: Cambridge University Press: 2004), 294, 305 ff; Wiessner, Indigenous Sovereignty, supra note 4 at Gilbert, supra note 2 at 226 ff.

22 6 its final adoption with such an overwhelming majority can be regarded as a great success. While four countries voted in opposition of the Declaration in the General Assembly, two of those have since expressed their support. The Canadian House of Commons on 8 April 2008 endorsed the Declaration and called on the Parliament and Government to fully implement it. 15 The Australian government gave its formal support to the Declaration on 3 April After these precedent, the New Zealand government also seems to be on its way to formally expressing its support for the declaration. 17 II. Legal Significance of the UN Declaration As a declaration by the General Assembly, the Declaration on the Rights of Indigenous Peoples has no binding force such as a treaty. 18 However, it is also not simply a statement, but to the contrary, some of past General Assembly declarations have gained significant status in international law. 19 Simply the name of a Declaration gives the document a certain solemnity. 20 Other General Assembly Declarations in the field of Human Rights have, in spite of their non- 15 See United Nations Office at Geneva, News and Media, UN Experts Welcome Canadian House of Commons Endorsement of the Declaration of the Rights of Indigenous Peoples, 18 April 2008, online at Document; amnesty international Canada, UN Declaration on the Rights of Indigenous Peoples: Canadian Parliament Calls for Implementation of Critical Universal Human Rights Instrument, 9 April 2008, online at 16 See Australian Human Rights Commission, United we stand Support for United Nations Indigenous Rights Declaration a watershed moment for Australia, 3 April 2009, online at 17 See Radio New Zealand News, NZ to ratify UN indigenous declaration Sharples, 7 July 2009, online at 18 See e.g. Brownlie, Ian, Principles of Public International Law, 7th ed. (Oxford: Oxford University Press 2008) at 694; Oppenheim, Lassa, International Law A Treatise, vol. 1, 9th ed., ed. by Sir Robert Jennings and Sir Arthur Watts (Harlow, Essex: Longman 1992) at 424; Shaw, Malcolm N., International Law, 6th ed. (Cambridge: Cambridge University Press 2008) at 1212; Anaya, James S. & Wiessner, Siegfried, The UN Declaration on the Rights of Indigenous Peoples: Towards re-empowerment (2007) online: JURIST, University of Pittsburgh School of Law, 3 October 2007, available at: 19 Oppenheim, ibid. at Anaya & Wiessner, supra note 18.

23 7 binding status, risen to extraordinary significance. As a prominent example, the Universal Declaration on Human Rights is frequently cited as an authoritative document with regard to human rights standards. 21 Such a declaration can furthermore be regarded as an element of state practice, and thus, among others, can lead to the development of new customary international law. 22 In the view of UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James S. Anaya, the UN Declaration on the Rights of Indigenous Peoples constitutes an authoritative common understanding, at the global level, of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of international human rights law (...) 23 Various scholars have joined him in this understanding, stating, as Bartolomé Clavero did: The Draft Declaration of Indigenous Rights is but a new step in the development of the international human rights regime that builds on the Universal Declaration on Human Rights. It is presented in declarative terms exactly because the instrument does not create these rights out of thin air, but instead confirms their prior existence and gives them practical meaning Eide, Asbjørn & Alfredsson, Gudmundur, Introduction, in: Asbjørn Eide & Gudmundur Alfredsson, ed., The Universal Declaration of Human Rights A Common Standard of Achievement (The Hague: Martinus Nijhoff Publishers 1999) at 6 ff.; Klug, Francesca, The Universal Declaration of Human Rights: 60 years on (2009) 2 Public Law 205 at 206 ff.; Matas, David, The Universal Declaration of Human Rights: fifty years later (2000) 46 McGill Law Journal 203 at 204 ff.; Re, Edward D., The Universal Declaration of Human Rights: effective remedies and the domestic courts (2003) 33 California Western International Law Journal 137 at Brownlie, supra note 18 at 694; Shaw, supra note 18 at UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc. A/HRC/9/9 of 11 August 2008 at para Clavero, Bartolomé, The Indigenous Rights of Participation and International Development Policies (2005) 22 Arizona Journal of International and Comparative Law 41 at 43.

24 8 III. The Right to Lands, Territories and Natural Resources in the UN Declaration Aboriginal peoples' relationship to their traditional lands and territories is recognized in the Declaration and given specific protection in Articles 25 to 32. At the outset, Article 25 ensures that Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard. The basic rights stemming from this are enlisted in Article 26: 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. With regard to aboriginal peoples' rights to natural resources, the most significant provision is Article 32 which determines: 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

25 9 The term natural resources is wide and can include such things as air, coastal seas, coastal ice, timber, minerals, oil, gas, as well as genetic resources and all other materials pertaining to indigenous lands and territories. 25 The Preamble of the Declaration further emphasizes that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs. 26 Another important provisions concerning lands and territories is included in Article 10, which ensures that Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return. Articles 18 and 19 more generally state that Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions and that States shall consult and cooperate in good faith with indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. 25 Daes, Erica-Irene, Indigenous Peoples' Rights to Land and Natural Resources, in: Nazila Ghanea & Alexandra Xanthaki, eds., Minorities, Peoples and Self-Determination (Leiden: Martinus Nijhoff Publishers 2005) 75 at Preamble, para. 10.

26 C. The development of a right to free, prior and informed consent with regard to natural resources in international law 10 The participatory rights of first nations with regard to their lands and the natural resources on them have been developed over decades in many international instruments and even more in the jurisprudence of international courts and bodies, as well as the practice of international institutions. While written treaties are always slow to develop, the judicial and monitoring bodies of international organizations have proved much more flexible in advancing indigenous rights by means of wide interpretations of existing provisions. The following section is going to first lay out the principles from which a duty to obtain free, prior and informed consent before engaging in exploration of issues surrounding natural resources. It then describes the developments that have taken place in international law up to the adoption of the UN Declaration. I. Background information concerning property right with regard to natural resources The issue of aboriginal sovereignty over natural resources has to start with the regular principles of ownership. The question here is who, according to the law, holds the title over natural resources: the owner of the land on which the resources are found, or the state. Two different approaches exist in this regard. The Roman system, which is prevalent throughout most countries today, provides the state with subsurface rights regardless of who owns the land in question. 27 This is based on a utilitarian thinking, which upholds the state's sovereign rights over natural resources and the concept of its beneficial use for everyone. 28 In comparison, land 27 Stellato Gabrielli, Joy, Indigenous Peoples and Land Rights (Roma: Lateran University Press 2003) at Barrera-Hernandez, Lila, Sovereignty over Natural Resources under Examination: The Inter-American System for Human Rights and Natural Resource Allocation (2006) 12 Annual Survey of International and Comparative Law 43

27 11 ownership under the Anglosaxon system entails ownership of subsurface resources. 29 In international law, UN General Assembly Resolution 1803 (XVII) of 14 December 1962 on Permanent Sovereignty over Natural Resources is the main instrument dealing with the topic. It affirms the inalienable right of all states freely to dispose of their natural wealth and resources in accordance with their national interests 30 and declares that [t]he right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned. 31 Initially, the declaration's focus was only on colonial peoples and offered them protection from exploitation by their colonizing powers. The terminology, which revolves around the state as the bearer of sovereign power, but also mentions the right of peoples and nations, has to be understood with regard to this background. 32 However, the focus soon shifted towards a general understanding of state sovereignty over resources, as contrary to private ownership and exploitation. 33 A state-centered notion is not the only possible understanding, though, as the declaration equally talks about the rights of peoples. This termination does not need to be set equal with the people of a nation-state, but allows for a wider interpretation. Accordingly, today the notion that sovereignty over natural resources lies with the sovereign state is again being challenged by new concepts, especially with regard to self-determination of peoples. at Stellato Gabrielli, supra note 27 at UN GA Declaration 1803 (XVII), Preamble, para Ibid. operative para Barrera-Hernandez, supra note 28 at Ibid.