Beyond Principles and Declarations: Taking Indigenous Rights Seriously

Beyond Principles and Declarations: Taking Indigenous Rights Seriously Findings and recommendations from the ENTITLE FP7 research project (www.politicalecology.eu) February 2016 INTRODUCTION Indigenous groups demand protection from investment projects falsely labelled as eco-friendly Policy measures for indigenous rights need to be legally binding to be effective At the 21 st Conference of the Parties to the UNs Framework Convention on Climate Change [COP21], it was acknowledged that environmental conflicts, in part related to capital-intensive extractive, agricultural and energy investment projects, pose serious livelihood risks for the poor (FAO 2014). This is acutely true for indigenous peoples who constitute 15 percent of the world's poor, and one third of 900 million people living in extreme poverty in rural areas (UNDP 2014, 3). However, at COP21 policy makers remained attached to an investment-based climate agreement which promises to reduce livelihood vulnerabilities and prepare the world's poor to adapt to climate change. The COP21 agreement further omits any legally binding measures for indigenous rights, ignoring demands by the International Indigenous Peoples' Forum on Climate Change for a rights-based agreement that ensures protection of indigenous territories at risk of development schemes and investment projects which are often falsely labelled as environmentally friendly (e.g. large-scale hydro-electric dams or agro-fuel plantations). ENTITLE research on large-scale land investment or development projects in indigenous (e.g. Brazil) or tribal (e.g. Ethiopia) territories indicate that both private and state projects lead to social-ecological degradation and social-economic deterioration, violent conflicts and project failures if affected communities are not consulted and their territorial rights are not respected. In recent years, so called voluntary guidelines, codes of conduct or principles for responsible investments in land (FAO, IFAD and WFP 2014) have been advocated by international organisation to help ensure that social and environmental standards (UNDP 2014, 37) are upheld under development and investment projects. Despite internationally declaring the protection of indigenous rights (UNDRIP 2008) such policy measures are however not legally binding and their application by corporations and governments cannot be ensured beyond the declamatory level, therefore ultimately undermining their effectiveness for protecting indigenous rights and livelihoods at the ground level.

2 ILO169 is an exemplary, legally binding policy instrument Based on over 3 years of on-the-ground research by ENTITLE researchers, which included consulting the perspectives of development practitioners, investors, governmental and judicial officials, social movements, as well as indigenous and tribal stakeholders in Brazil and Ethiopia, we propose that policy makers move to adopt legally binding measures to ensure the protection of indigenous and tribal peoples' rights; particularly if these communities territories are affected by largescale development and investment projects. Our research identifies the International Labour Organisation s Indigenous and Tribal Peoples Convention No. 169 [ILO169] as an exemplary legally binding policy instrument, which if ultimately ratified by non-signatories (e.g. Ethiopia) and consequentially upheld by signatories (e.g. Brazil), can effectively serve to ensure the consultation of indigenous peoples and the protection of their territorial rights, but also to reduce environmental conflicts over large-scale investment projects. KEY OBSERVATIONS Investment projects lead so social and ecological ills if affected groups are not consulted Consultation and consent are fundamental for democratic development ENTITLE research supports existing evidence that large-scale land investment projects, including agro-industrial, extractive mining and hydro-electric dams, in indigenous or tribal territories lead to a range of social, economic and ecological ills, if the affected communities are not consulted. Indeed, there are development schemes and investment projects in or nearby indigenous territories in Brazil and Ethiopia that are intended to improve the human conditions of local populations (e.g. providing revenues, jobs, technology and infrastructure). Yet research from both countries suggest that if indigenous rights are not respected, the outcome of the investment projects has the inverse effect the social and economic conditions of the local communities deteriorate, often exacerbated by ecological deterioration, violent conflict and resistance. Several examples in Brazil and Ethiopia also suggest, that development schemes and investment project often fail as a consequence to the environmental conflicts which they unleash. Our analysis of development and investment project related environmental conflicts in indigenous (Brazil) and tribal (Ethiopia) territories suggests, that although the political institutional settings are different, important reasons for the social, economic and ecological ills of affected indigenous communities overlap. These include, but are not limited to: First, indigenous communities were not properly consulted prior to the project taking place. Second, indigenous territories were not respected by the corporation or authorities implementing the project. Third, claims for indigeneity by social collectives were not properly recognised by the authorities. And fourth, social, economic and ecological damages inflicted on indigenous livelihoods were not properly recorded and adequately compensated. 2

3 Developing extraction in Brazil: authoritarian projects We are treated as obstacles to development. But we are not against development, what we want is to be respected and have our rights as indigenous people recognized Jairo Saw Munduruku, indigenous chief, Brazil Amaoznia Mega-development investments projects in Brazil, based on the extraction of natural resources such as mining, logging, large plantations and cattle ranching, hydropower energy, infrastructure and logistics, mark a development strategy know as neo-developmentalism. This strategy has been emerged in the past decade and inevitably affects indigenous territories in different ways, from the displacement of peoples from the place of extraction, to different forms dispossession. Democratic demands of participation in such projects, which happened, for example, in the initial debates around the building of Belo Monte mega-dam, started in 2011, were never implemented as promised by the Brazilian government. Different investments in mining by the company Vale in south Pará, associated with mega-slaughterhouses, have increased disputes over land, but these were not followed by state interventions to re-organize land title and provide land reform, which was a common demand from peasant and indigenous communities. The exclusion of the affected communities including, but not only indigenous people from the process of building and implementing the project, as we have found, are common current authoritarian developmentalism in Brazil. Agro-fuels in Ethiopia: Lack of prior consent and consultation We ve farmed this land for generations, but fine let the investors come, we said at first. But oh, how they treat our farmland! Can we live off our ancestors land much longer? Tribal Elder, Hararge, Ethiopia Our research on large-scale investments in land in Ethiopia, indicates that all agro-fuel investments since 2007-08 have either failed or the land leased from the state remains unused and unproductive. Agro-fuel investors such as Germany s Flora Eco Power (FEP) producing castor oil in Hararge, along the Oromia-Somali Region frontier, have been met with resistance by Somali agro-pastoralist tribes as the project interfered with their seasonal land-use practices or uprooted them from their ancestral land. Environmental conflicts also emerged as FEP began clearing swathes of land inside the borders of Babile Elephant Sanctuary, without prior consultation and consent from local authorities, including tribal elders. Until its eventual failure in 2014, Flora Eco Power struggled to ever put the 56,000 Ha of land they leased and the 10,000 farmers they contracted to productive use, not to mention export processed biodiesel for export. 3

4 Policy-Analysis: International Principles, Declarations and Conventions for Indigenous Rights Beyond principles declarations for indigenous rights ENTITLE s research project not only seeks to understand the political, economic and social complexities underlying environmental conflicts, our researchers also investigate the legal and institutional processes at local, national and international level which provide the regulatory frameworks for environmental governance. At the international level for instance, we observe that various international organisation have identified the high potential for negative impacts of large-scale investments on indigenous territories. As a measure to avoid this they have promoted non-binding principles for responsible investments in land (FAO, IFAD and WFP) or declarations aiming to protect rights of affected indigenous people (UNDRIP). The FAO s Principles for Responsible Agricultural Investments (RAI) lay out voluntary guidelines for states and investors to put into practice. These principles have gained international attention by pushing for corporate social responsibility to ensure that large-scale investments in land benefit the poor. RAI focuses on investors recognising and states securing customary land rights (i.e. formalising indigenous property rights), but does not legally protect indigenous peoples from dispossession and their land from appropriation. RAI holds that investments in land are an important driver of economic development (e.g. providing revenues, jobs, technology and infrastructure) and advocates that negotiations should be held between investors, states and local populations (including indigenous communities) prior to investments taking place. Ensuring that indigenous view-points are represented and respected The pitfalls of RAI are that indigenous territories are thus always at least negotiable for investment purpose on the premise of bringing development. And where states do not ensure prior consultation of local populations, this often implies that indigenous land is up for grabs by corporations. It ignores that indigenous communities may not want to partake in investment-led economic development schemes in the first place and even if they do want to partake they are often at a disadvantaged bargaining positions compared to the corporations, given the lack of political representation, financial and legal resources, and means of communication. In contrast to RAI, other international policy frameworks are more focused on ensuring that indigenous claims to territory and their view of development are properly represented and respected. 4

5 Empowering affected groups to influence development A need for legal checks and balances on actions of states and corporations Following a democratic development perspective The UN Declaration of Rights of Indigenous People declares that indigenous and tribal territorial life-systems should be respected in accordance with national rights to self-determination. This is because indigenous peoples have suffered environmental injustices as result of historic processes of dispossession, which the UN Declaration affirms has been preventing them from exercising, in particular, their right to development in accordance with their own needs and interests, rights to their lands, territories and resources. Rights of selfdetermination are moreover defined in the United Nations Charter, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, as well as the Vienna Declaration and Programme of Action, summarized as the freedom to pursue of economic, social and cultural forms of development. In order to enforce these rights, Article 8 of the UN Declaration determines that states shall provide effective mechanisms for prevention of, and redress for any action which has the aim or effect of dispossessing [indigenous communities] of their lands, territories or resources. ENTITLE s policy research, recognises the potential of RAI and the UN Declarations to enforce the protection of indigenous communities and their territorial livelihoods, as well as promoting their political representation. Yet their legal function has less impact in ensuring that development schemes and investment projects apply and adhere to the proposed standards. Constitutional institutions (international, national and local) and or legally binding conventions can play a much more decisive role in governing large-scale development schemes and investment projects, as they can provide legal checks and balances on the economic actions of states and corporations implementing them. And if effective, certain rules, rights and regulation (i.e. social institutions) may uphold the rights of indigenous communities. At the national level this may for example be the constitutional right to self-determination of indigenous peoples (which exists both in Brazil and Ethiopia, albeit to different effects). An international legal mechanism that our research has identified as having potential to protect the rights of indigenous communities is ILO Convention 169. ILO Convention 169 is legally binding for any nation state that ratifies it. It penalises states and investors who breach indigenous territories identified for protection and seeks to protect indigenous land based on their own social institutions and customs from state sanctioned private or public property laws, enshrined in the national constitution. Following a democratic perspective, ILO169 obliges investors and states to consult these social collectives in good faith according to their indigenous representative institutions and internationally appropriate procedures, if their territory was identified as potential area for planned investments projects. This allows indigenous communities to decide their own priorities and does not implicitly make their territories and land negotiable for state or private investment projects. It provides indigenous communities with recourse to international legal protection and respectful consideration by others for their own customs and institutions of territorial claim and land use, embedded and protected within an interplay of national constitutions and international conventions. 5

6 Ratifying ILO169 and respecting indigeneity ILO169 has been ratified mostly by Latin America countries (15 in total), only one African country (Central African Republic) and two Asian countries (Nepal and Fiji). To date it has only been ratified by four European countries (Denmark, Netherlands, Norway and Spain). At the level of international relations, we observe that serious application of already existing international conventions and legislations such as ILO169 can improve both the global struggle against poverty and environmental conflicts, as long as they are ratified and upheld by policies at the national level. But can be encouraged in developing countries, if European Union members sign ILO Convention 169 and ensure its application by private investment funds and corporations registered in the EU, if decide to invest in areas inhabited by indigenous communities. ILO169 has been ratified mostly by Latin America countries (15 in total), only one African country (Central African Republic) and two Asian countries (Nepal and Fiji). To date it has only been ratified by four European countries (Denmark, Netherlands, Norway and Spain). At the level of international relations, we observe that serious application of already existing international conventions and legislations such as ILO169 can improve both the global struggle against poverty and environmental conflicts, as long as they are ratified and upheld by policies at the national level. But can be encouraged in developing countries, if European Union members sign ILO Convention 169 and ensure its application by private investment funds and corporations registered in the EU, if decide to invest in areas inhabited by indigenous communities. ENTITLE researchers have offered a broader conceptual understanding of indigeneity (see Barca 2014). Such an understanding would extend the application of ILO169 from tribal peoples [Article 1a], peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country [Article 1b], to also include local and traditional social collectives whose social and economic sustenance depends upon the management of a territory, according to their collective customs. Thus, all of these socially and economically diverse but institutionally recognised indigenous peoples shall have the right to decide their own priorities for the process of development [Article 14, 1.]. Land of indigenous territories which was a focus point of the ENTITLE research projects constitutes the fundament of the social and cultural fabric for indigenous peoples (e.g. in Brazil s Amazon) and tribes (e.g. agro-pastoralists in Ethiopia) and issue that must be more widely accepted by the international community, as the Convention indeed also holds that the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. 6

7 ILO Convention 169 and Rights in Ethiopia and Brazil Signing ILO169 internationally and upholding it nationally The Brazilian Constitution of 1988 and ILO169 An insight from our research for instance by comparing Ethiopia and Brazil shows that investment and development projects unequally affect the social, ecological and economic conditions of indigenous peoples. Therefore, we propose a broad interpretation of ILO169, to extend the rights of consultation and respecting rights of development according to the specificities of each community affected. A major different, however, between the two research contexts is how they approach indigenous rights, territorial claims, indigeneity and compensation at the national level, politically and institutionally. Considering that Brazil has ratified ILO169, while Ethiopia has not, the following in depth analysis discusses the different policy implications of this for indigenous rights. Brazil has signed ILO169. During Brazil s Military Dictatorship (1964-1985), Indians were the victims of the 'economic miracle'. According to a report published by Brazil s National Truth Commission last December, at least 8,000 indigenous individuals were killed during this period. Many of these killings were due to indigenous resistance to infrastructure development projects such as roads and dams. That is one of the reasons why the Brazilian Constitution of 1988 enshrines the right to protected indigenous territories, and why the country signed ILO169. The Brazilian Constitution forbids the displacement of any indigenous group from their territory, unless in case of a natural disaster, and within this scenario Congress must approve this displacement and guarantee that the displaced people be allowed to return to their lands as soon as possible [Article 231]. Additionally, any local group whether indigenous or traditional populations like rubber tappers that will have their territory and life affected by any project, especially by hydroelectric dams, must be consulted before the project is approved [Article 231, paragraph 3]. International agreements like ILO169 are supposedly enshrined with a post-colonial mentality. They are meant to provide legal protection to move beyond this dark past. Although Brazil is a signatory to ILO169, there is no formal procedure to ensure this consultation process. Indigenous groups are demanding the application of ILO160 Ethiopia s right for selfdetermination and sovereignty does not apply to minorities. Some indigenous groups from Brazil, such as the Munduruku and the Kayapo, have already requested the application of ILO169 to European corporations investment affecting their territories, mainly dam building. The Munduruku and the Waiampy have written a protocol of procedures to be consulted. They argue that an effective consultation, following ILO169, is one in which those concerned have an opportunity to influence the decision-making process (Milanez 2015). Ethiopia has not signed ILO169. The Ethiopian Government argues that indigenous rights are inscribed within the national constitution and so does not see necessity to ratify an international convention. Its ethnic-federalist constitution grants self-determination and sovereignty rights to the nations, nationalities, and peoples of Ethiopia [Articles 39 and 8 respectively]. This phrasing only applies to entire administrative Ethnic-Regions and majority ethnic groups (for example Oromia, Somali, Afar, Gambella or the Southern Nations and Nationalities Regions), not the minority ethnic groups inhabiting these Regions. The right to self-determination is politically volatile in Ethiopia, as it may lead to secession of entire Ethnic-Region. Therefore rights to self-determination of minority ethnic groups (incl. indigenous and tribal communities) are marginalised and unlikely to be legally activated under the national constitution. 7

8 Concerning large-scale land investments, the Ethiopian constitution is ambiguous, stating that land is common property of the nations, nationalities, and peoples of Ethiopia. At the same time ownership of land and natural resources is vested in the state and the peoples of Ethiopia [Article 40]. The lack of recognition of tribal (e.g. pastoralist) land-use and the absence of the recognition, demarcation and protection of indigenous territories is a concern for peoples who only have constitutional use-rights to land. The state has an ownership-right and can prioritise large-scale investments in land over indigenous and tribal territorial claims, which it routinely does for instance by identifying investment zones in Gambella, Benishanguel Gumuz, South Omo and Oromia on supposedly unused land even though such land is often used by agro-pastoralists. In Ethiopia affected communities rarely have recourse to legal protection The Ethiopian constitution does grant prior consultation for affected communities, stating that all persons have the right to participate in national development and, in particular, to be consulted in respect to projects affecting their community [Article 43.2]. But without ratified international conventions such as ILO169, affected communities rarely have recourse to international legal protection. Rather than consenting to and partaking in development projects, affected communities most often experience land investments projects as forced development by dispossession (Wedekind 2016). Moreover, most actions by activists on matters of land and indigenous rights are repressed without any legal protection, as the most recent case of the arrest of the arrest of indigenous activist such as Omot Agwa against land dispossession in Gambella shows. It is also striking that in comparison to Brazil, in Ethiopia legal action against unconstitutional investment projects (i.e. without prior consultation and proper compensation, etc.) are mostly absent, except for a few rare legal cases supported by international campaigns. RECOMMENDATIONS FOR POLICY-MAKERS Policy Implications and good examples from Brazil Our research findings confirm that RAI could be made more effective and supportive, in combination with internationally legally binding mechanisms such as the ILO169. Our research indicates that although Brazil has ratified ILO169, indigenous peoples themselves demand that the rules of the convention are seriously applied on the ground and upheld in accordance with the national constitution. In Brazil, a good example to follow is the Munduruku Protocol. Here is an indigenous community that is voicing its own concerns, through its own forms of collective organisation and public communication, advancing core ideas encompassed within the ILO169. Our research has been concerned with the question of why the state and international institutions are not listening to them. The Munduruk Assembly could become an example to further enhance representation and visibility of indigenous communities. The Muduruku Protocol is inspired in the Wajãmpi Protocol, the first consultation protocol elaborated by an Indigenous community in order to enforce ILO 169. Two challenges have emerged in the process of writing the protocols: Indigenous peoples have to decide and reach internal agreements as they take collective decisions and give legitimacy to those decisions, a form of representation, such as who can speak for them. 8

9 Ratifying ILO169 in Ethiopia would enhance minority rights If EU members ratify ILO169, this would be an important signal to their corporations. In contrast, evidence from Ethiopia suggests that while the national constitution grants rights to self-determination and development to its peoples, the rights of minority ethnic groups are rarely upheld. Ratifying ILO169 would provide and international check and balance to uphold Ethiopia s progressive ethnic-federalist constitution without infringing Ethiopia s national sovereignty, thus providing rights to minority tribal and indigenous communities. Rather than focusing its capacities primarily on identifying land suitable for investments (so called investment zones ), The Ethiopian state could also recognise and demarcate indigenous territories in consultation with indigenous communities. This would ensure that investments do not infringe indigenous and tribal livelihoods and that the communities are consulted and compensated. This is to guarantee that the right for development, which exists in the Ethiopian constitution, is not enforced topdown by the developmental state onto indigenous and tribal peoples, but that tribal and indigenous communities are consulted in processes of development. The fact that most European states have not yet ratified the Convention increases the vulnerability of indigenous populations worldwide. We therefore propose that the European Union advises its countries to ratify ILO169. This would be an important signal for corporations registered within the EU to adhere to the basic rule or prior consent before signing contracts for investment deals with the responsible governments. It should be made furthermore legally possible for European member states to pursue corporations registered in the EU, should evidence emerge that they fail to comply with the core tenants of the convention during their investment endeavour. RESEARCH PARAMETERS The ongoing research project by Felipe Milanez in Brazil looks to the opposite side of the conflicts within mega-development projects, aiming to co-produce a cartography of environmental resistance in a form that highlights and investigates challenges to democratic territorial existence. In his political ecology of extractivism, activists epistemologies are taken in to account to explain: I. How has the accelerated economic growth model pursued by Brazilian governments in the first decade of the 21 st century affected the country s environmental politics and democracy itself? The ongoing research project by Jonah Wedekind on Ethiopia looks specifically at failed agro-fuel investments in land in Ethiopia; investigating the role of the Ethiopian federal state in mobilising land and labour for foreign investors. The research methods was based on over 10 months of field work, interviewing government officials, investors, affected communities in Ethiopia. By excavating and telling the histories and trajectories of various agro-fuel investment projects this research project attempts to explain: I. How the Ethiopian state shapes and is shaped by the trajectory of agrofuel investment projects located in Ethiopia s frontiers. II. Why large-scale investment projects in Ethiopia fail; And how their failure shapes the social-ecological relations between the state, capital and labour in Ethiopia s frontiers. 9

10 Further reading Abbink, J. et al (2014) Land of the Future: Transforming Pastoral Lands and Livelihoods in Eastern Africa. Halle/Saale: Max Planck Institute for Social Anthropology. [Available Online: http://www.eth.mpg.de/pubs/wps/pdf/mpi-ethworking-paper-0154]. Barca, S. (2014) Making ourselves indigenous: on conservation ethics and the commons. IN: Entitleblog. [Available Online: http://entitleblog.org/2014/12/10/making-ourselves-indigenous-on-conservationethics-and-the-commons/]. Bassi, M. (2014) Federalism and Ethnic Minorities in Ethiopia: Ideology, Territoriality, Human Rights, Policy. DADA Rivista di Antropologia post-globale, 4(1), 45-74. [Available Online: http://www.dadarivista.com/singoli-articoli/2014- Giugno/02.pdf]. Cambou, D. (2015) Addressing the Rights of Indigenous Peoples in the Development of Ethiopia. IN: Brems, E. Van der Beken, C. and Solomon, A.Y. (eds.) Human Rights and Development: Legal Perspectives from and for Ethiopia. Leiden: Brill. Martinez-Alier, J. (2002), The Environmentalism of the Poor: A study of ecological conflicts and valuation. Edward Elgar: Cheltenham. Meza-Cuadra, S.; Salazar, K.; Rodriguez-Garvito, C.; Pombo, R.J. (2014) Ask the Experts: Consulta Previa. Interview IN: Consulta Previa and Investment, Spring 2014, American Quarterly. [Available Online: http://www.americasquarterly.org/content/ask-experts-consulta-previa]. Milanez, F. (2015) Decolonization and the Munduruku Protocol: It s time to listen and to respect, IN: Entitleblog. [Available Online: http://entitleblog.org/2015/03/18/decolonization-and-the-munduruku-protocol-itstime-to-listen-and-to-respect/]. Strecker, I. (2014) Implications of the International Investors Code of Conduct: The Case of the South Ethiopian Rift Valleys, IN: Mulugeta, G.B. (ed.) A Delicate Balance: Land Use, Minority Rights and Social Stability in the Horn of Africa. Institute for Peace and Security Studies: Addis Ababa University, pp. 38-65. [Available Online: https://www.africaportal.org/dspace/articles/delicate-balanceland-use-minority-rights-and-social-stability-horn-africa]. Wedekind, J. (2015) A Short History of The Enclosures in Ethiopia: imperialist, socialist and developmentalist land grabs, IN: Political Ecology for Civil Society. ENTITLE, European Network for Political Ecology. [Available Online: http://www.politicalecology.eu/news/item/manualngo]. PROJECT IDENTITY Coordinators Prof. Dr. Giorgos Kallis (project coordinator), giorgoskallis@gmail.com Dr. Christos Zografos (project manager), christos.zografos@uab.cat Institute for Environmental Science and Technology (ICTA), Universitat Autònoma de Barcelona, Spain (http://icta.uab.cat/) 10

11 Consortium Institute for Environmental Science and Technology (ICTA), Universitat Autònoma de Barcelona, Spain (http://icta.uab.cat/) Centre for Social Studies of the University of Coimbra, Portugal (www.ces.uc.pt) The University of Manchester, UK (www.sed.manchester.ac.uk) Lund University, Sweden (www.keg.lu.se) Humboldt University of Berlin, Germany (www.resource-economics.huberlin.de) Harokopion University of Athens, Greece (www.hua.gr) Bogazici University, Turkey (www.econ.boun.edu.tr) University of Chile, Chile (www.fau.uchile.cl) Environment and Management, Spain (http://ent.cat/) Centro di Documentazione sui Conflitti Ambientali, Italy (www.cdca.it) Friends of the Earth Middle East, Israel Jordan Palestinian Territory, Occupied (foeme.org) Duration May 2012 April 2016 Website Author(s) of this brief http://www.politicalecology.eu/ Prof. Dr. Felipe Milanez (researcher) fmilanez@gmail.com Jonah Wedekind (PhD researcher) j.wedekind@hu-berlin.de 11