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«GOVERNING THE GLOBAL COMMONS: HOW UNSR ANAYA’S STUDY ON EXTRACTIVE INDUSTRIES CAN INFORM A NEW GLOBAL HUMAN RIGHTS REGULATORY REGIME FOR ...»

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GOVERNING THE GLOBAL COMMONS: HOW UNSR ANAYA’S

STUDY ON EXTRACTIVE INDUSTRIES CAN INFORM A NEW

GLOBAL HUMAN RIGHTS REGULATORY REGIME FOR

TRANSNATIONAL CONSERVATION NGOS OPERATING ON OR

NEAR INDIGENOUS TERRITORIES

Gina Cosentino*

TABLE OF CONTENTS

I. INTRODUCTION

II. INDIGENOUS PEOPLES AND THE DEVELOPMENT OF A GLOBAL VOLUNTARYCOMPLIANCE HUMAN RIGHTS REGIME FOR EXTRACTIVE INDUSTRIES........... 214

III. EMERGENT FRONTIERS IN GOVERNING THE GLOBAL INDIGENOUS “COMMONS”:

THE NEED FOR A GLOBAL REGULATORY FRAMEWORK CLARIFYING THE HUMAN

RIGHTS RESPONSIBILITIES OF CONSERVATION NGOS

A. Indigenous Peoples and Conservation and the “FRESCH” Approach...... 226 B. Conservation-Human Rights Nexus: Conservation NGOs and the Rise of Self-Regulating Coalitions

IV. KEY LESSONS FROM THE UNSR EXTRACTIVE STUDY ON HUMAN RIGHTS

RESPONSIBILITIES, PRACTICE, AND PRINCIPLES RELATING TO INDIGENOUS

PEOPLES IN DUE DILIGENCE PROCESSES

A. Participation, FPIC, and Self-Determination and Indigenous-led Models 243 B. Due Diligence, Safeguards, and Impact Assessments

C. Indigenous Recognition and Tenure

V. CONCLUSION: CONSERVATION NGO RESPONSIBILITY IN A POST-UNSR

EXTRACTIVE STUDY ERA

I. INTRODUCTION Those who live in high biodiversity areas and in fragile ecosystems1 often face resource development pressures from the natural resource extraction industry (e.g., oil, gas, and mining), infrastructure and energy development, and agribusiness. They also face similar pressures from transnational conservation * Visiting Scholar at the Institute for the Study of Human Rights at Columbia University. Gina Cosentino was also the former Director of Indigenous and Communal Conservation at The Nature Conservancy and a senior advisor of Government Relations and International Affairs to a former National Chief of the Assembly of First Nations. Her comments reflect hers alone.

For a review of the concept of ecosystem fragility, see Christer Nilsson & Gunnell Grelsson, The Fragility of Ecosystems: A Review, 32 J. APPLIED ECOLOGY 677, 677-92 (1995).

210 Arizona Journal of International & Comparative Law Vol. 32, No. 1 2015 non-governmental organizations (CoNGOs) wanting to conserve or safeguard biodiversity. Such is the case for many of the world’s Indigenous peoples.

Indigenous peoples are on the frontlines of ecological change and face mounting pressures from competing wants and uses of their lands and natural resources stemming from this “resource rush.”2 They are also disproportionately affected by human rights violations resulting from improper natural resource and infrastructure development or conservation practices and policies that fail to account for the rights of Indigenous peoples in their operations. This has led to, among other things, food and water insecurity, dislocation and dispossession, restricted access to their territories, loss of livelihoods and culture, impoverishment, chronic social conflict, and exacerbated effects of climate change. More still, Indigenous peoples often lack the necessary financial resources, political saliency, and the technical or other capacity to effectively respond to these complex challenges to their collective and individual human rights, especially the right to determine and develop priorities and strategies for the development, use, or conservation of their lands, territories, and other resources.

The “worldwide drive to extract and develop minerals and fossil fuels” has led to “ever more widespread effects on Indigenous peoples’ lives,” Professor James Anaya, former United Nations Special Rapporteur on the Rights of Indigenous Peoples (UNSR) noted in his seminal thematic report on Indigenous peoples and extractive industries.3 Indigenous peoples account for five percent of the world’s population, but they own, occupy, or have claim to a quarter of the planet that represents eighty percent of the world’s remaining biodiversity.4 As a result, Indigenous territories have become hotspots for activities related to natural resource exploitation and biodiversity conservation. As the global demand for See, e.g., Andrew C. Revkin, Can Peru Control the Murderous Resource Rush on Its Forest Frontiers?, N.Y. TIMES (Oct. 10, 2014), http://dotearth.blogs.nytimes.com/ 2014/10/10/can-peru-control-the-murderous-resource-rush-on-its-forest-frontiers/; Martin Lukas, Indigenous Rights Are the Best Defence Against Canada’s Resource Rush, GUARDIAN (Apr. 26, 2013), http://www.theguardian.com/environment/true-north/2013/ apr/26/Indigenous-rights-defence-canadas-resource-rush; Aqukkasuk, The Arctic Resource Rush, Enviros and Inuit Poverty, ALASKAN INDIGENOUS (Aug. 3, 2013 9:35 PM), https://alaskaIndigenous.wordpress.com/2013/08/03/arctic-resource-rush-enviros-and-inuitpoverty/. For a view of how the resource rush can induce economic development in Africa, see Ngozi Okonjo-Iweala, Fulfilling the Promise of Sub-Saharan Africa, MCKINSEY Q., June 2010, at 1, 3-4, available at http://www.mckinsey.com/insights/economic_studies/ fulfilling_the_promise_of_sub-saharan_africa.





Special Rapporteur on the Rights of Indigenous Peoples, Extractive Industries and Indigenous Peoples, 1-2, U.N. Doc. A/HRC/24/41 (July 1, 2013) (by S. James Anaya) [hereinafter Extractive Industries & Indigenous Peoples].

CLAUDIA SOBREVILA, WORLD BANK, THE ROLE OF INDIGENOUS PEOPLES IN

BIODIVERSITY CONSERVATION: THE NATURAL BUT OFTEN FORGOTTEN PARTNERS 5 (2008).

See also Gina Cosentino, World Indigenous Day: Harnessing the Power of the Five Percent, NATURE CONSERVANCY (AUG. 8, 2013), http://blog.nature.org/conservancy/2013/ 08/08/world-Indigenous-day-harnessing-the-power-of-the-five-percent/.

Governing the Global Commons 211 more food, water, energy, and other commodities continues to rise, the rights of Indigenous peoples to their lands, territories, and natural resources are often ignored or downplayed by courts, governments, industry—and at times, environmental organizations who seek to safeguard nature—when they clash with economic development, aid policy, trade objectives, or conservation goals.

“Green” forms of energy, such as hydropower, solar, wind, and biofuels, also involve the exploitation of Indigenous peoples’ territories that can lead to adverse environmental and social impacts. However, conservation actors, which include governments, intergovernmental agencies, transnational conservation nongovernmental organizations and their funders (e.g., foundations, multilateral financing institutions, and philanthropic donors) are increasingly targeting Indigenous territories to safeguard essential ecosystem services (i.e. the “services” nature provides, such as food, climate stability, and water) and manage human impacts on nature given their biologically significant value. Conservation strategies include, but are not limited to, creating protected areas, influencing public policy and corporate practices, restoring wildlife and habitat, climate change mitigation and adaption, and managing resource-use such as fisheries, agricultural lands, and forests through a range of strategies to maintain the health of the environment, economy, and human well-being to meet present-day and future needs. However, these and other conservation practices, which have been at times rights-blind and often measure the “value of nature” in market-based terms, have sometimes led to a clash in values and approach to conservation, leading to adverse impacts on the lives and well-being of Indigenous peoples as well as their rights to land, territories, and natural resources.

States bear the primary duty to protect human rights, as affirmed by the Guiding Principles on Business and Human Rights: Implementing the United Nations Protect, Respect and Remedy Framework (the “Guiding Principles”) adopted by the United Nations in 2011 as the global standard on corporate social responsibility.5 Corporations and other non-state actors such as non-governmental organizations (NGOs) also have an independent responsibility to respect and comply with internationally recognized human rights and standards and to exercise due diligence to ensure their activities do not contribute or violate Indigenous peoples’ rights even if domestic laws fall short of the global standard.

This includes, at minimum, the International Bill of Human Rights, International Labour Organization’s (ILO) Fundamental Principles of Rights at Work, as well as relevant international human rights instruments pertaining to Indigenous peoples such as the United Nations Declaration on the Rights of Indigenous Peoples (U.N. Declaration), Indigenous and Tribal Peoples Convention (ILO 169), Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Guiding Principles on Businesses and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011) (by John Ruggie) [hereinafter U.N. Guiding Principles].

212 Arizona Journal of International & Comparative Law Vol. 32, No. 1 2015 the Convention on Biological Diversity (CBD), and others.6 Lastly, both States and companies have a shared responsibility to provide effective remedies and mechanisms of redress for human rights infringements.7 Despite the growing acceptance and recognition of corporate social responsibility, a lack of clarity over what corporate responsibility means vis-à-vis Indigenous rights impedes effective implementation of the Guiding Principles and the U.N. Declaration. In part this is due to a general lack of understanding of, respect for, or recognition of Indigenous rights by some businesses, civil society organizations, or States, which fuels further conflict and intensifies human rights violations of Indigenous peoples.8 Adding to this, Professor Anaya asserts that the prevailing model of extraction on Indigenous territories, one that is led and controlled by extractive businesses, primarily benefits others, such as the businesses themselves and governments, thereby exacerbating social and environmental harms.9 In addition, this model of extraction has shown to contribute to the violation of Indigenous peoples’ human rights, impacts their livelihoods and traditional modes of subsistence, “erodes the basis of their selfdetermination and, in some cases, endangers their very existence as distinct peoples.”10 Since the activities of extractive industries was identified by the Rapporteur “as one of the most significant sources of abuse of the rights of Indigenous peoples worldwide” during his first mandate,11 his top priority in his final term as Rapporteur was to clarify and develop standards, guidance, and good practices to assist implementation and operationalization of the standards affirmed in the U.N. Declaration on the Rights of Indigenous Peoples, other international human rights instruments, and the U.N. Guiding Principles on Business and Human Rights. Indeed, as Professor Anaya notes, the “growing degree of awareness and assumption of responsibility on the part of States and corporate actors,” created an “historical opportunity” to develop an international human rights regulatory regime with respect to corporate social responsibility to Indigenous peoples.12 What is particularly innovative about his work in this context is the applicability of this responsibility and accountability framework to the similarly situated field of environmental conservation.

Report of the Special Rapporteur on the Rights of Indigenous Peoples, 55-56,

59, 81-85, U.N. Doc. A/HRC/21/47 (Jul. 6, 2012) (by S. James Anaya) [hereinafter 2012 Report]; Extractive Industries & Indigenous Peoples, supra note 3, 52. See also U.N.

Guiding Principles, supra note 5, princ. 12.

See U.N. Guiding Principles, supra note 5, princs. 27-31.

Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, 81, U.N. Doc. A/HRC/15/37 (July 19, 2010) (by S. James Anaya) [hereinafter 2010 Report].

Extractive Industries & Indigenous Peoples, supra note 3, 4.

Special Rapporteur on the Rights of Indigenous Peoples, Extractive Industries Operating Within or Near Indigenous Territories, 80, U.N. Doc. A/HRC/18/35 (July 11, 2011) (by S. James Anaya) [hereinafter Extractive Industries & Indigenous Territories].

Id. 82.

Extractive Industries & Indigenous Territories, supra note 10, 84.



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