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Free, Prior and Informed Consent in Latin America: Key Struggles Defining the Landscape

Recently, Benjamin blogged about the success of indigenous peoples in Bolivia in stopping the construction of a highway through their territory which threatened the environment and the livelihood of indigenous communities.  The marchers had protested against the lack of prior consultation, and the fact that the Bolivian government never sought their consent before beginning the project.  The events in Bolivia come at a time when the issue of “free, prior and informed consent” (FPIC) is on the political agenda of several countries in the region, and at a time when indigenous peoples have had to go to great lengths to ensure that their voices are heard in defending their territory.

In neighboring Peru, the Law for the Right to Consultation was unanimously passed by Congress in September and is vigorously being debated as the government prepares to codify the law. While international law in the form of Convention No. 169 of the International Labour Organization (ILO) requires previous consultation and guarantees FPIC for indigenous populations, governments in countries that have ratified the ILO convention (like Bolivia and Peru) have a long way to go towards codifying those requirements within their national law.

In Ecuador, the indigenous and mestizo peoples of the rural parishes of Victoria del Portete and Tarqui called for a vote (consulta) at the end of September on implementation of the large scale mining Quimsacocha project, owned by Canada's IAMGOLD. The result was that 92% voted to reject the project. Ecuadorian President Rafael Correa called the consulta illegitimate.

Brazil’s controversial Belo Monte dam is yet another example of the conflicts that arise when governments continue to neglect their indigenous populations and do not apply or even recognize indigenous peoples right to prior consultation. At the end of October, the government of Brazil refused . . .

Letting in the Sun: New Shake Ups Over Tar Sands, Dams and Fracking

If you read our blog regularly, you know that we frequently comment on human rights cases and campaigns from all over the world, particularly those involving large energy development projects. For instance, in the last few months we’ve written about campaigns to stop the Myitsone Dam on the Irrawaddy River in Burma, the Xayaburi Dam on the lower Mekong River in Laos, and the Belo Monte Dam on the Xingu River in Brazil.

It’s far more rare, however, that we write about similar developments in the U.S. and Canada, so I wanted to mix things up by calling attention to three pieces of encouraging domestic news that have caught my eye in the last few days…

98 year old dam comes down

Less than two weeks ago, in Washington State, crews blasted a tunnel through the Condit Dam, and the ensuing torrent drained the 92-acre Northwestern Lake in roughly two hours. The environmental consequences of this action are complicated – the release of years of accumulated sediment will hurt some downstream species in the short-term, but 33 miles of vital migratory fish runs have been reopened and the long-term impact on fisheries should be very positive.

The video below, which includes some timelapse segments of the lake draining, is absolutely stunning. The remaining dam structure will be removed in 2012. 

Tar Sands protestors circle the White House

Yesterday afternoon, roughly 12,000 protestors formed a circle around the White House, asking President Obama to stop the Keystone XL pipeline, which would run from Alberta, Canada all the way to the Gulf of Mexico. Opposition to the pipeline has rallied largely around climate change (the Athabasca Oil Sands hold . . .

Victory for Indigenous Marchers in Bolivia?

On October 21, two days after thousands of Bolivia’s indigenous peoples completed their 500 km march to La Paz in protest of the government’s plan to construct a highway through their territory, President Evo Morales scrapped the construction plan, announcing that he would govern by obeying the people.

The massive highway construction project was intended to fulfill Brazil’s dream of having access to the Pacific Ocean and expand their growing economy.  This highway is part of a series of multi-national infrastructure projects of the Initiative for the Integration of Regional Infrastructure in South America (IIRSA).  The proposed highway in Bolivia was set to pass through the Isiboro-Secure Indigenous Territory and National Park (TIPNIS), a protected area and home to several indigenous communities.  The Bolivian government had approved the plan, and the construction appeared to be getting underway. 

In response, the affected indigenous communities and larger indigenous organizations rose up in a march of protest against the project and the government’s treatment of the indigenous populations.  Starting in August, hundreds of protesters set off to march 500 km to La Paz to demand both a halt to the construction and to be adequately consulted before any similar project is undertaken.  The numbers swelled as the march progressed, growing to thousands.  The marchers endured high altitudes and cold weather, and overcame police blockades and violently repressive police tactics in order to reach the capital.

Over two months had passed by the time the marchers finally reached the capital.  During that time, television footage of the peaceful march and police violence caused a national outcry, and led to the resignation of two high ranking government officials—one who was implicated in the violent repression of the demonstrators, and another in solidarity with the protest—and President Morales’s decision to suspend construction of the highway . . .

When indigenous livelihoods clash with public energy demands, who should bend?

Construction on the controversial US$11 billion Xingu River dam construction project — the so-called Belo Monte dam — was temporarily halted by a Brazilian federal judge last month due to concerns over the impact on local fisheries. The judge ruled the dam’s environmental license violates the constitutional rights of indigenous communities and is therefore illegal. An appeal is expected in the case.

Then last week, hundreds of indigenous people, fishermen and riverine community members began to occupy the dam site, located in Para state in northern Brazil, forcing the suspension of construction. Protesters said they would permanently occupy the site and called on allies to join them. After 15 hours, lawyers from Norte Energia and justice officials informed the protesters that a different federal court in Brazil ordered the immediate removal of protestors and prohibited any actions that disrupt Belo Monte's construction; and they informed the protestors that troops were in the area and prepared to act. Our friends at Amazon Watch, who are campaigning to stop the dam, have noted that the risk of a violent confrontation between security forces and indigenous protestors is very high.

The 11,000-plus megawatt (MW) project is the largest hydropower project under construction in the world and will be the world’s third largest if completed under its current design. The project is supported by the Brazilian government, constructed by Norte Energia, a consortium of Brazilin state-owned and private companies, and funded by Brazil’s development bank BNDES. It is widely seen as a major threat to the Amazon and the local indigenous peoples.

The dam has been controversial from the start and efforts within Brazil and through international forums have not resolved the conflicts. Internationally, the Brazilian government has refused to engage with the Inter-American Commission on Human Rights (IACHR). They did . . .

UN Special Rapporteur draws attention to extractive industries and indigenous rights

Last week, James Anaya, the UN's Special Rapporteur on the Rights of Indigenous People, delivered a written report and statement to the UN General Assembly, summarizing the first three years of his mandate and outlining his plans for the next three years. His report and statements highlighted four themes: the UN Declaration on the Rights of Indigenous Peoples, nation states’ duty to consult indigenous peoples, corporate responsibility with respect to indigenous and human rights and, of particular interest to us here at ERI, the impacts of extractive industries operating in or near indigenous territories:

"I have observed the negative, even catastrophic, impact of extractive industries on the social, cultural and economic rights of indigenous peoples. I have seen examples of negligent projects implemented in indigenous territories without proper guarantees and without the involvement of the peoples concerned. I have also examined in my work several cases in which disputes related to extractive industries have escalated and erupted into violence. I have seen that, in many areas, there is an increasing polarization and radicalization of positions about extractive activities."

Among other goals, our work at ERI seeks both to deter human rights abuses performed in the name of "security," and to provide non-violent alternatives to activists and affected communities, and it’s encouraging to see the Special Rapporteur continuing to focus his attention not only on the extractive industries in general, but also more narrowly on the violent abuses that often accompany extractive projects.

An online forum for indigenous rights?

On a more personal note, I was also struck by Anaya's plans to incorporate online forums into his work:

"I intend to launch an online consultation forum organized around specific questions or issues related to extractive industries. Through this forum, indigenous peoples and others will have the

. . .

Another court allows corporate liability for human rights abuses

On Monday, I wrote about the big news that the Supreme Court will hear the Kiobel case, about whether corporations may be sued for complicity in human rights abuses under the Alien Tort Statute (ATS).

Shortly thereafter, in the Sarei v. Rio Tinto case, the Ninth Circuit Court of Appeals became the third federal appeals court to reject Kiobel, and the fourth appeals court to find that corporations may be sued under the ATS.

The Rio Tinto decision was issued by an "en banc" panel of the Ninth Circuit, which basically means a lot more judges (eleven) than the standard three-judge panel, often used in particularly significant cases. A majority of the court not only found that corporations could be sued, but also rejected a number of other arguments commonly made by corporate defendants (such as that the case interferes with US foreign policy).

As Chimene Kietner blogged over at opinio juris, the decision "reads like a virtual catalog of contested questions surrounding the interpretation and application of" the ATS. Chimene's post may be of interest to those who want more info about the specific issues in play but don't want to read 166 pages of opinions. (The majority opinion is only about 50 pages, though!)

Why would the Ninth Circuit act now when it's already known that the Supreme Court will address the Kiobel issue later this year? Impossible to say for sure, but the judges might have wanted to try to influence the high court.

ERI filed two amicus briefs in the Rio Tinto case, which concerns abuses allegedly associated with a mine in Bougainville, Papua New Guinea. . . .

New EU Rule Requires European Oil, Gas, Mining, and Timber Companies to Publish What They Pay

The global movement for transparency in the management of natural resource revenues took a major step forward today as the European Union announced a new directive requiring extractive companies to report their payments to governments on a project-by-project basis.  This EU initiative picks up the momentum started when the U.S. Congress enacted disclosure requirements as part of the Dodd-Frank Wall Street Reform Act.  It also decisively rejects the oil industry’s attempts to block the rising tide of transparency.

The new proposals, which are contained in amendments to the EU’s Accounting  and Transparency Directive, are crucial for a number of reasons.  First, they extend revenue disclosure rules to Europe; between U.S. and European regulators, such rules will now apply to the vast majority of extractive companies in the world.  A new, binding global standard for revenue transparency has effectively been set.

Second, the Directive takes up many of the aspects of the Dodd-Frank provisions that are most crucial to transparency advocates but were hotly opposed by companies.  Specifically, it requires companies to disclose their payments for each extractive project, rather than lumping all their payments together for each country. A group of major oil and mining companies, including Shell, Total, BHP Billiton, and Anglo American, wrote a letter to EU officials shortly before the rules were released, strongly objecting to project reporting.  

The same companies have pushed the U.S. Securities and Exchange Commission (SEC), which is responsible for implementing revenue transparency laws in the U.S., to undermine its Congressional mandate to collect and publish project-level disclosures.  As I wrote last month, while companies argue that this information is sensitive and would be overly burdensome to report, . . .

All eyes on corporate liability at the Supreme Court

As Rick noted in his post last week, the big news out of the Supreme Court is that it will decide whether corporations can be sued for human rights violations under the Alien Tort Statute and the Torture Victim Protection Act (TVPA).

The Kiobel case in particular is generating a lot of interest. Last Friday I wrote a guest post for the blog of the American Constitution Society, and on Saturday I joined Terry Collingsworth of International Rights Advocates for a discussion on WZBC radio in Boston (the segment begins at about 12:25 into the audio file).

There is also an ongoing discussion of Kiobel and of Mohamed v. Rajoub, the TVPA case, at SCOTUSblog, the leading website for Supreme Court-watchers. Anyone can join in the discussion, and we'll be checking in periodically as well.

Mining case is a landmark victory for community rights in Thailand

Shortly after arriving in Thailand this summer, I was dispatched to Kho-ha, a small village in southern Thailand’s Songkhla province, to write a legal memorandum regarding a local mine blasting and causation lawsuit.

For the past several years, Khu-ha has been the scene of a struggle between a socially aware community group and a powerful Thai mining company.  Khu-ha is situated at the base of a large lime-stone mountain called Khoa Khu-ha—a mountain that has been one of Khu-ha’s symbols for centuries, as well as the source of fresh stream water for the village and home to lush greenery and a high number of bats that inhabit its many caves.  

Khoa Khu-ha also happens to be located on a large swathe of public land that the Thai government leased a few years ago to the mining company.  Since that time, the village of Khu-ha has not been the same. As soon as the mining company set up shop, it began blowing up Khao Khu-ha with large quantities of dynamite to extract the limestone.  I arrived in Khu-ha to see a mountain with a gaping crater, the entire center blown away.

A community in jeopardy

But the community of Khu-ha’s injuries aren’t limited to the destruction of their precious Khao Khu-ha.  Many people have suffered property damage from the close-range blasts, health problems due to the mine dust, loss of livelihoods from the mine activities, and loss of the general sense of security that they used to have before the massive explosions began launching dust, large stones, and loud booming blasts into the atmosphere on a daily basis.  

One family owns a duck farm, and as soon as the explosions began, their ducks stopped producing eggs—wiping out their family income.  Another family's house is falling apart, its foundation cracked by . . .

Can corporations be sued for human rights abuses? In 2012, Supreme Court will decide

The Supreme Court today agreed to hear two cases that are critical to our human rights litigation. Both cases, Kiobel v. Royal Dutch Shell, and Mohamad v. Rajoub, consider whether corporations can be sued for human rights abuses. In Kiobel, the question is whether the Alien Tort Statute permits corporations to be sued. A bitterly divided panel of the U.S. Court of Appeals for the Second Circuit held in that case that corporations cannot be sued, no matter how egregious their participation in violations of universally recognized human rights. Three other federal appeals courts have come to the opposite conclusion, finding that corporations can be sued—indeed, two of those decisions came after, and specifically rejected, the holding in Kiobel. ERI had submitted amicus briefs to the Second Circuit in that case.

The question in Mohamad is whether the Torture Victim Protection Act (TVPA) permits suits against organizations, in that case, the Palestinian Authority and the Palestine Liberation Organization, for summary execution and extrajudicial killing. In particular, the question is whether the statutory language, which allows “individuals” to be sued, includes entities or only natural persons. Here again, the Circuits are split on the issue. ERI serves as co-counsel for the Plaintiffs in Bowoto v. Chevron, which raises the question of whether corporations can be sued under the TVPA. We had also asked the Supreme Court to address the issue. Interestingly, however, the Court did not issue any ruling today on that request. We believe the most likely outcome will be that the Court will simply hold onto the case until it decides Mohamad, and then issue a short ruling in Bowoto based on the decision in Mohamad.

Kiobel and Mohamad will be argued together, probably in February or March. A decision is expected by the end of . . .

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