Indigenous peoples, Consultation and Mining: Lessons from the Supreme Court of India

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It is a pleasure to welcome Dr Jérémie Gilbert as a guest poster on ‘Rights as Usual’. Jérémie is a reader at the University of East London and the author of  Indigenous Peoples’ Land Rights under International Law – From Victims to Actors  (Transnational Publishers, 2006). This post is his.

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On the 19^th of April, the Supreme Court of India rendered a significant decision  touching upon the connection between governments, corporations and the rights of local communities in the context of mining. The ruling of the court came after years of legal, administrative and political tinkering over a mining project in the Indian State of Orissa.

The mining project is planned to supply bauxite to Vedanta Aluminium, a unit of Vedanta Group and India’s largest producer of the metal. The project involves the clearance of forest land to allow mining, and touches directly the Niyamgiri Hills, which are part of the traditional land of the Dongria Kondh, a local tribal community.

Back in 2007, the Supreme Court had given clearance to Vedanta to mine but on the condition that the exploitation of the mine would be undertaken under a purpose-built conglomerate which would include the state government, the Orissa Mining Corporation (OMC) and Sertlite, a listed subsidiary of Vedanta Resources, which was to have a 49 per cent stake in the conglomerate. The aim was notably to ensure that the local population would receive a proper “Rehabilitation Package”.

However, following this clearance by the court, two national statutory supervising bodies warned that plans by Vedanta did not respect the environmental planning and were potentially harmful to the local tribal population. Based on these reports, the Ministry of Environment and Forests (MOEF) rejected the clearance for the mine. This decision was based on the fact that the mining would mean clearance of forest land in the Niyamgiri Hills, an area essential for wildlife and the residence of tribes like the Dongria Kondh.

The case before the judges in the Supreme Court concerned a demand by the Orissa Mining Corporation (OMC) to quash the decision of the MOEF and allow the mining. Some of the arguments raised by the applicant are relevant not only in the specific context of the case but also globally, as they touched on issues that have arisen throughout the world when it comes to mining on indigenous peoples’ lands.

The applicant submitted that in the proposed mining area there was no human habitation, an argument often raised by companies when mining is not taking place right where people actually live, but in the vicinity. Another argument raised by the mining company’s lawyer was that while the legal framework regarding the local community offers some protection to individual and community rights, it does not make any reference to religious or spiritual rights. Lastly, the applicant also submitted that the State Government has full ownership over the minerals and deposits beneath the forests and that the local indigenous community could not raise any ownership rights on minerals or deposits beneath the forest land.

Again, this is an argument often raised globally as governments frequently claim their fundamental and absolute ownership of all the mineral resources within their territories. On this issue, while the court acknowledged that the power of the state remains intact when it comes to ownership over natural resources, the judges stressed that consultation of the local authorities and consent of local communities are also vital. Regarding the other claims, the judges highlighted that while the community was not directly living on the concerned land, this land was nonetheless an important part of their culture as it represented a spiritual landmark for the community. As such the judges ruled that the community rights to practice their religion should be protected and considered before the mining was allowed.

Overall, the Supreme Court has not ruled out the possibility of mining, instead the judges have insisted on the importance of the inclusion of the tribal peoples into the decision. Hence the court has ruled that the decision will now rest with the local indigenous communities through the decision of the local council. The court said that the issue of religious rights must be settled by the local Gram Sabha. The Gram Sabha, or Panchayats, are local self-governments established at the village level which shall be consulted before making the acquisition of land for development projects, and before re-settling or rehabilitating persons affected by such projects. In this instance, the judge said that the Gram Sabha should give its views in three months. In turn, this decision will be reviewed by the ministry of environment and forests (MoEF) and a final decision will be taken within the following two months.

The judgement, written by K S Radhakrishnan, further ordered that the state government, as well as the ministry of tribal affairs, government of India, help the Gram Sabha to settle individual as well as community claims. A judicial officer has been put in charge to make sure that the decision of the Gram Sabha is taken independently and uninfluenced either by the project proponents or the central government, or the state government.

The decision is significant not only for India but also globally as it touches on the important issue of the rights of the local communities to be consulted whenever mining is taking place in the area where they live. Significantly, the decision of the judges to make the consultation and the consent of the local population a requirement before the government gives its consent for mining is based not only on specific Indian laws but also on international law. The judges referred to the International Labour Organization (ILO) Convention on Indigenous and Tribal Populations (Convention no. 107), the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Convention on Biological Diversity, and the Rio Declaration on Environment and Development (Agenda 21) to highlight the necessity to respect and promote the inherent rights of indigenous peoples to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands.

This judgement is also an interesting lesson on the potential role of the judiciary within the triangular relationship between governments, corporations and local indigenous communities in the context of mining. In this case the judiciary acted as a fourth independent supervisory partner which over the last few years has been monitoring the process to make sure that all the parties were receiving a fair hearing.

Dr Jérémie Gilbert, Reader, University of East London.

Kiobel v. Royal Dutch Petroleum Co: Overcoming the Collective Hangover

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Shell oil spill at Goi, Ogoni Land, Niger Delta. © Alison Dilworth/Friends of the Earth, April 2005

So this is it. After years of speculations about this case in the human rights community, the United States Supreme Court finally rendered its decision in the Kiobel et al. v. Royal Dutch Petroleum Co. et al. case on 17 April. They dismissed the applicants’ claims and ruled in favour of the corporate defendants.

To say that this decision was awaited would be an understatement. The Internet suddenly went crazy, with dozens of reactions from academics, NGOs, journalists and even businesses. All of these reactions were usefully compiled by the Business and Human Rights Resource Centre on a special page. The agitation on Twitter, which continues 2 days later, further reinforces the idea that the Kiobel case was an exceptional one.

This case could have provided us with answers to a variety of fascinating questions, such as whether corporations are subjects of international law and, linked to that, whether they can commit international crimes; and whether companies need to share the intent of the main perpetrators in complicity claims, or whether passing a “should have known” test is enough.

In the end the Court decided to limit the case to only one question: whether and under what circumstances the Alien Tort Statute allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. Asking the question, of course, is already anticipating the answer they were going to give, at least in this specific instance. The answer is that following the presumption against the extraterritorial application of statutes, only in the rarest of circumstances will courts have jurisdiction, under the ATS, over matters which fall under the jurisdiction of another sovereign state. In other words, the ATS is unlikely to ever provide a legal avenue for victims of human rights violations committed by rogue states with the complicity of business.

This very short opinion (only 14 pages!) is disheartening for the human rights community because many had hoped that the ATS would continue to provide at least a potential remedy for victims of gross human rights violations committed with the complicity of corporations. There are now several initiatives at the international level to encourage corporate accountability in the field of human rights, such as for example the UN Guiding Principles on Business and human Rights and the OECD Guidelines for Multinational Enterprises. But these are soft law initiatives and arguably there is nothing like the fear of a court case to make any organisation change.

So, what next? How do we cure the collective hangover we seem to have suffered from in the past two days? Here are my views and suggestions:

1. The United States are not the only country in the world. While US Courts won’t exercise jurisdiction under the ATS, other countries might be more open to these types of cases against corporations.

2. Even within the US, the Alien Tort Statute is not the only statute that could be used to bring human rights claims against corporations. Also, new legislation could be adopted, as the Supreme Court itself seems to suggest in the very last sentence of the decision.

3. Let’s remind ourselves that “extraterritoriality is not a black and white issue, but a question of degree” (Zerk, 2010). And also that jurisdiction is an adjudicative, as well as a prescriptive (legislative and regulatory) matter. The US Supreme Court has refused to assert direct extraterritorial jurisdiction over a set of events that had occurred abroad. It does not mean that everything happening abroad is outside the reach of US law and regulation. As I have argued in more detail in my recent piece in the Journal of Business Ethics, there are a variety of measures that states can adopt to reach out to, and impose some degree of control over, what companies registered on their territories do abroad, including engaging in human rights violations. These measures range from selective purchasing laws to reinforced reporting requirements, to name but a few.

4. Let’s continue to use the UN Guiding Principles as a basis for engagement with business. It is crucially important we keep the momentum on this and encourage states to mainstream the principles.

Launch of Report on Free, Prior, Informed Consent for Indigenous Peoples & the Mining Industry

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What: Launch of advocacy research report on Free, Prior, Informed Consent for indigenous peoples & how it applies to the mining industry

Where: Barnet Town Hall, Middlesex University, The Burroughs, Hendon, London, NW4 4BT, United Kingdom (Tube: Hendon Central, Northern Line)

When: 6pm – 2nd May 2013

Speakers: Will include Professor James Anaya, the UN Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, ex-Chairperson of the UN Permanent Forum on Indigenous Issues (& Director of Tebtebba Foundation), as well as representatives of industry and indigenous peoples

Details: The project is seeking to persuade leading multinational mining companies to adopt the principle of FPIC in their policies and fully comply with it in practice in all of their operations, so as to increase compliance with respect for indigenous peoples rights’. The advocacy paper will allow for better informed dialogue between mine-affected indigenous communities and the industry. It will draw on case studies to illustrate positive and negative experiences from which lessons can be derived, and will make recommendations based on the findings. The launch will present the findings of the report, and allow interested members of the public – as well as a number of assembled overseas visitors – to debate the issues in it.

For now only a summary of the report is available. I will post a link to the report as soon as it is available, so watch this space.

Refreshments will be available. Please send confirmation if you are planning to attend to [email protected]

This event is organised by the project consortium, including PIPLinks, Middlesex University Law School, ECCR & the Missionary Society of St Columban.

Business and Human Rights Conference in West Virginia University – Call for papers

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My colleague Professor Jena Martin Amerson is organising a conference on  “Business and Human Rights: Moving Forward, Looking Back” to be held at her home university, West Virginia University (USA), on 23-24 September 2013.

The call for papers, which can be found here, states that “the conference will examine the United Nation’s recent work on business and human rights issue, an area that has grown substantially in the last ten years.” They plan to publish the papers in an edited book after the conference.

Equality and Human Rights Commission – A Guide to Business and Human Rights

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The Equality and Human Rights Commission has just issued A Guide to Business and Human Rights – How Human Rights Can Add Value to Your Business. The guide is aimed at British businesses and specifically Small and Medium Enterprises (SMEs). It provides simple answers to key questions such as “What are human rights?” and “Why are human rights important for your business?”. It also includes a useful list of human rights relevant to business and a directory of useful contacts.

This short, practical guide draws on research carried out by my colleague Dr Jérémie Gilbert (University of East London) and I, which found a particular gap in the support available to smaller businesses to understand what is meant by business and human rights and what they can do to ensure respect for human rights. Our report can be found here.