UN Special Rapporteur Focus on Extractive Industries

University of Arizona October 21, 2011
UA Regents' Professor S. James Anaya serves as the United Nations Special Rapporteur on the Rights of Indigenous Peoples. In his role, Anaya said he will be focusing more heavily on extractive industries, which post a "major and immediate concern of indigenous peoples all over the world." (Photo courtesy of the United Nations)

S. James Anaya, a UA Regents' Professor of Law and Special Rapporteur to the United Nations, announced this month that he would give special attention to extractive industries over the course of his next term.

United Nations Special Rapporteur S. James Anaya is making the impact extractive industries have in and around world's indigenous territories a strong priority over the next three years.

Anaya, a University of Arizona Regents' Professor in the James E. Rogers College of Law, announced his intention during an Oct. 17 presentation to the Third Committee of the United Nations General Assembly during a meeting held in New York.

During the meeting, Anaya presented his third annual report to United Nations member states convened in the Third Committee, which concerns social, humanitarian and cultural affairs.

Anaya placed particular emphasis on extractive industries, those involved in forestry, mining and the production of gas, oil and chemicals.

"The issue of extractive industries is a major and immediate concern of indigenous peoples all over the world," Anaya, also the James J. Lenoir Professor of Human Rights Law and Policy, noted in his most oral statement to the government representatives in attendance.

Such industries, Anaya said, have in the past had "negative and even catastrophic" effects on the social, cultural and political 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," said Anaya, who was involved in drafting the United Nations Declaration on the Rights of Indigenous Peoples.

"I have also examined in my work several cases in which disputes related to extractive industries have escalated and erupted into violence," he continued. "I have seen that, in many areas, there is an increasing polarization and radicalization of positions about extractive activities."

Anaya has served in the United Nations position since 2008. His initial appointment was for a three-year term, but Anaya has since received a second appointment, which will run through May 2014.

In addition to addressing extractive industries, Anaya also discussed his activities since his initial appointment.

In monitoring the conditions of indigenous peoples around the world, Anaya examines and produces reports on situations in various countries and investigates accusations of human rights violations.

He also promotes good practices by assisting governments and indigenous peoples develop legal and policy reforms, and produces studies on issues of common concern to indigenous peoples worldwide.

In carrying out his work, Anaya has traveled to countries such as Australia, Brazil, Botswana, the Russian Federation, Finland, the New Caledonia and elsewhere, drafting reports and lending his expertise around issues related to indigenous peoples.

Anaya assisted Ecuador with the enactment of its new constitution in 2008 and has since has monitored its implementation and also offered input to the country's government on new legislation. In 2010, he completed a comparable analysis for Colombia.

In another example of his work, Anaya submitted a report in April 2009 to the Chilean government in light of its constitutional reform process that emphasized the obligation to adhere to international norms.

In November 2010, he visited the Republic of Congo, becoming the first independent expert designated by the United Nations to study the condition of the indigenous peoples in that country. Anaya later reported on his visit, noting that the then-adoption of new laws was important in recognizing the rights of certain marginalized groups.

Today, Anaya is calling for a more common understanding about "key issues" such as the human rights impacts and standards related to extractive industry activities between indigenous peoples of the world and governments, private companies and others.

During his presentation to the General Assembly, Anaya said government and corporations must more readily develop mechanisms and processes to involve indigenous peoples in decisions affecting them, from the initial development of projects through their completion.

Another official who presented at the the meeting underscored the importance of Anaya's key points.

"Let us not forget that the majority of the world's indigenous peoples continue to live in deplorable conditions, with shorter lifespans and higher rates of infant and maternal mortality," Daniela Bas, who directs the Division for Social Policy and Development, Department of Economic and Social Affairs, noted in a release issued by the United Nations.

In closing his report, Anaya emphasized: "Although I am encouraged by positive developments in many places, I remain concerned about the reality of ongoing

Statement of UN Special Rapporteur 2011

Scroll through statement below

Letter to the United Nations

The following is an edited copy of a letter sent to the secretary-general of the UN
Letter by Colin McKinnon-Dodd | Source: ABC - The Drum 25 October 2011

Dear Mr Ban Ki-moon,

As an elder of the Yamatji people of Geraldton, Western Australia, I respectfully and enthusiastically beckon you to investigate a particular long-term problem and lead a corrective process.

The problem is worldwide and concerns the regular exploitation by mining companies of indigenous peoples who are manipulated into leaving their lands in return for grossly inadequate royalty payments.

Indeed all over the world, negotiations between miners and indigenous people are not done on a level playing field. Mining companies, who are abundantly resourced with teams of top lawyers and the best available expertise, continue to strategically take advantage of indigenous people at the negotiating table. There is no more lopsided business negotiation process than this.

The usual consequence of each mining agreement is that mining companies generate extraordinary profits by extracting minerals from Aboriginal lands while the traditional people, removed to allow the mining, are paid a pittance and left in dire poverty. In my country Australia royalty shortfalls that should be paid by miners, are instead paid as welfare and 'sit-down money' by governments.

I'm calling on you and the United Nations to investigate and ultimately recommend a standard UN mandated royalty rate for mining companies to pay indigenous people who agree to allow mining on their homeland. I'm not merely calling for a standard rate for Aboriginal people of Australia, but for indigenous people all over the world. Indeed I cannot fathom why the idea has not been discussed until now.

What is the fair and reasonable rate? In my opinion the standard rate should not fall below 5 per cent of total pre-tax revenues. At present there is such a variation in royalties that traditional groups can receive 10 or a hundred times less than they should for the same riches.

This idea has been triggered by the disgraceful offer by Fortesque Metals Group to pay four cents in every thousand dollars to the Yindjibarndi people of the Pilbara in Western Australia to mine their lands; that amounts to a minute 0.004 per cent.

It is no secret that mining companies have been indulging in appalling business practices for a long time. One of their common and insidious strategies is to demand confidentiality clauses in the final contract as a condition for receiving royalties. Undesirable consequences of this include denying traditional people the right to know their entitlements and avoiding the creation of any precedents for future negotiations with other groups. Indeed the mining industry would be outraged and highly resistant to a UN-mandated standard royalty rate; justice will never suit everyone.

I concede that this issue should have been resolved by politicians long ago, but there is something wrong here as well. Politicians around the world consistently roll-over to the demands of the mining industry and allow massive profits to go overseas without guaranteeing that the Aboriginal people making the sacrifices receive a fair proportion of returns. Indeed this letter has been necessitated by the failure of politicians to honour the responsibility of their jobs and protect their own people.

Mr Secretary-General, by publicising what you perceive to be an acceptable standard royalty rate, you would uniquely contribute to the preservation of indigenous peoples around the world. Ultimately this is about fairness, human decency and functional business practices.

I genuinely hope that you feel suitably motivated to begin the corrective process.

Yours sincerely,

Colin McKinnon-Dodd