Memorandum submitted by Survival International
BRITISH COMPANIES
ON TRIBAL
LAND
1. Vedanta Resources plc is a FTSE 100 mining
conglomerate, listed on the LSE with its registered office in
this country. It is about to construct an open pit mine in Orissa,
India which will blast 73 million tonnes of bauxite from
Niyam Dongar, the most sacred site of the Dongria Kondh. The streams
and cultivated land on which the tribe depends for its livelihood
will be polluted by air-borne particulates from the mine, conveyor
and access roads. A timber mafia has already begun to use these
roads to invade Dongria forests and orchards. For months now,
in a last ditch effort to protect their way of life, the Dongria
and their supporters have organised road blocks, mass protests
and other demonstrations against the mine.[130]
Many believe that the tribe will not survive if Vedanta proceeds
with its plans.
2. In December 2008 we filed a complaint
against the company for breaches of the OECD Guidelines for Multinational
Corporations. We would welcome an opportunity to give oral testimony
about the complaint and how it has been handled. In summary we
have alleged that Vedanta has persistently failed to respect the
rights of the Dongria Kondh under international human rights law—particularly
their rights to enjoy their own culture and religion, to equality
before the law, and not to be deprived of their means of subsistence.
We have also identified repeated violations of the Dongria's right
to be consulted about the project under the Convention on Biological
Diversity, the Race Convention and the UN Declaration on the Rights
of Indigenous Peoples.
3. Notwithstanding claims by Vedanta that
the complaint represents a "deeply disturbing interference
in the internal affairs of India," and "shows contempt"
for the Indian Supreme Court which has received petitions about
the mine, the DBERR has recently decided that the complaint is
admissible. An investigation is now under way.[131]
4. We have also drawn the attention of Vedanta
Directors to their duty under section 172 of the Companies
Act 2006 to "have regard to the impact of the company's
operations on the community and the environment, [and to] the
desirability of the company maintaining a reputation for high
standards of business conduct". We have reminded them that
Section 417 requires the company to inform shareholders in
its 2009 Business Review that an adverse finding under the
OECD procedures might harm its reputation; and of the significant
costs that the company can expect to incur to protect its property
and personnel against the protests to which we have referred.
5. Another group with which we are closely
involved are the Kalahari Bushmen, whom we helped win a landmark
case in the Botswana High Court against their eviction from the
Kalahari Desert. In December 2006 the Court ordered that
they should be allowed to return to their settlements. As and
when world markets recover, however, a diamond mine will almost
certainly be built on their territory and will bring new threats
for the Bushmen. Unless Gem Diamonds Ltd—another LSE listed
FTSE 100 company in which the mining rights are vested—can
be persuaded to enter an impact and benefits agreement with the
affected communities, they may be forced from their homes again.
6. In other sectors the problems are of
a different order but are no less acute. Most recently we have
crossed swords with a television production company, also British,
which trespassed on tribal lands in South America to make a reality
TV programme. The film crew unwittingly brought disease with them,
and are said to have left several Indians dead in their wake.[132]
NO EFFECTIVE
CONTROL
7. There is no doubt that British companies
frequently exert an enormous impact on indigenous peoples in developing
countries, and that their activities escape effective regulation
in both the host country and the United Kingdom.[133]
8. In the host country, governments often
fail to enact the domestic legislation required to give effect
to the human rights covenants they have ratified. Even if the
legislation is in place there may be no independent judiciary
to enforce it, and indigenous communities almost always lack the
financial or human resources to litigate.
9. In the United Kingdom, many organisations
at least make the right noises. New codes of conduct and human
rights policies appear almost daily.[134]
The Equator Principles call on companies to "respect and
preserve the culture, knowledge and practices of Indigenous Peoples".
The International Council on Mining and Metals has committed its
members, many of whom are major British companies, to "respect
the rights and interests of indigenous peoples under international
human rights laws." Rio Tinto has agreed not to mine on aboriginal
land without the consent of the community, even if this "may
sometimes result in our not exploring land or developing operations
when legally permitted to do so." The bank that advised Vedanta
on its stock exchange listing, JP Morgan Chase, is one of several
which have pledged not to fund projects on tribal lands unless
they are preceded by a "free, prior and informed consultation"
of the affected groups.
10. These are encouraging developments,
but most voluntary codes offer no effective redress if things
go wrong; and the companies most likely to violate indigenous
rights are the least likely to subscribe to a code in the first
place.[135]
Vedanta may incur reputational damage if the OECD finds against
it, but the company cannot be compelled to put right the damage
it has done, or even to adjust its future conduct. Nor is there
any obvious way of bringing to book a company or its directors
for breaches of sections 172 or 417 (which may explain
why the Vedanta board has not troubled to reply to our letters
on the subject).
11. The UK Government also makes the right
noises. It voted for the UN Declaration on the Rights of Indigenous
Peoples, and accepts that these peoples "have suffered many
historic injustices and continue to be amongst the poorest and
most marginalised peoples of the world." It has yet to introduce
any practical measures, however, to ensure that British companies
do not add to these injustices.
12. One of the Business Principles of the
ECGD, for example, is that it "will ensure that our activities
take into account the Government's international policies, including
those on sustainable development [and] human rights"; but
no sanction is available if the recipient of an export credit
guarantee operates on indigenous land without prior consent.
13. In theory an indigenous community might
sue an English company here for a negligent act or omission abroad.
Negligence in remote areas may be difficult to establish, however,
and it can be even more problematic to prove that it is the actions
of the English parent that have driven its local subsidiary. Cases
could take years to come to trial.
THE WAY
FORWARD
14. If real progress is to be made new means
must be found to hold British companies liable in this country
for the violation of indigenous rights abroad. Professor Ruggie
has himself referred with apparent approval to the "increasing
encouragement at the international level, including from the treaty
bodies, for home States to take regulatory action to prevent abuse
by their companies overseas." Interestingly the example he
gives is a request made by the UN Committee on the Elimination
of Racial Discrimination to Canada, to "take appropriate
legislative or administrative measures to prevent adverse impacts
on the rights of indigenous peoples in other countries from the
activities of transnational corporations registered there."
15. What sort of measures might the UK introduce?
It could and should follow the lead of the Dutch Parliament which
in 2001 approved proposals to enable financial assistance
to be withdrawn from companies which fail to comply with the OECD
Guidelines. The UK ought also to consider whether to remodel its
national contact point along Dutch lines, so as to encourage a
more obviously independent investigation of complaints. It should
often be possible, and desirable, for the NCP to hold public hearings.
16. In France, listed companies are required
by law to report on the compliance of their foreign subsidiaries
with "fundamental" ILO conventions. A similar provision
could easily be introduced here, especially for ILO Convention
169 on Tribal and Indigenous Populations. Shareholders are
entitled to know whether and how their companies respect the rights
of the indigenous communities with which they come into contact.
They ought especially to be able to satisfy themselves that the
company has not undermined indigenous rights to "ownership
and possession of the lands which they traditionally occupy"
[Article 14(1)], and "to be consulted with a view to ascertaining
whether and to what degree their interests would be prejudiced,
before any programmes are undertaken for the exploration or exploitation
of mineral resources pertaining to their lands" [Article
15(2)].
17. The Environmental Information Regulations
2004 already recognise the public's right to environmental
information, and do not confine the right to information about
activities with an environmental impact in the UK. But the Regulations
would be more effective if British companies were required to
deposit with a public authority in this country impact assessments
of projects of which they or their subsidiaries were the proponent
and which were likely to affect indigenous peoples.
18. Social and environmental impact assessments
are now a standard requirement in some developing countries, if
only to appease the IFIs. They vary hugely in quality but can
contain valuable material not readily accessible elsewhere. Rarely,
however, are they made available to the indigenous peoples whose
homes or livelihood may be directly under threat. Even if they
are, illiteracy rates in many communities remain high. If NGOs
like Survival were able to obtain these assessments here, they
could explain their significance to the communities in a language
and a form they could readily understand. (Indigenous people may
not be able to read but they can use mobile phones).
19. Without prior access to the impact assessment,
any "consultation" of the community about the project
is likely to prove an empty charade. With it, community leaders
should find it much easier to negotiate with project proponents.
20. These are all modest proposals. We believe
that the UK should go further and ratify Convention 169, as the
European Parliament has urged all member states to do. The Government
has so far declined, ostensibly on the ground that there are no
indigenous peoples in this country.
21. This has not stopped Spain and the Netherlands,
both of which have recently ratified the Convention to ensure
compliance with its provisions by Spanish and Dutch companies
working in indigenous areas. Ratification would fully accord with
the views of the IFC, which has pointed out that:
"If an IFC client is implementing a project
where government's actions mean that the project does not meet
the requirements of the Convention, it can find itself accused
of 'breaching' its principles or of violating rights that it protects.
This has occurred in relation to several IFC-financed projects
in Latin America, and such complaints have sometimes contributed
to troubled community relations and project delays. The implementation
of the Convention in the context of private sector projects (directly
by governments or indirectly by private companies) will support
a more open and inclusive approach to private investment. In this
way, the private sector also benefits from government ratification
and adherence to the Convention."
22. A short enabling Act could require British
companies to "respect" the rights of indigenous peoples
laid down by the Convention, and give them a cause of action here
for a breach of the statutory duty. If necessary the court would
assume jurisdiction only if it was first satisfied that the claimants
were unable to obtain adequate relief in their own country. With
or without this restriction, litigation in the UK would be a rare
event. The mere possibility of a claim, however, would again strengthen
the hand of community leaders in their attempts to resolve disputes
with multinationals.
23. Alternatively an independent commission
should be created to investigate allegations of corporate abuse.
The statute by which it is formed should require British companies
to take reasonable steps to identify and avoid any abuse of indigenous
rights within their sphere of responsibility. In most instances
this will require a company to commission an indigenous peoples
impact assessment before a project is approved. As Professor Ruggie
has observed
"Many corporate human rights issues arise
because companies fail to consider the potential implications
of their activities before they begin. Companies must take proactive
steps to understand how existing and proposed activities may affect
human rights … While these assessments can be linked
with other processes like risk assessments or environmental and
social impact assessments, they should include explicit references
to internationally recognized human rights. Based on the information
uncovered, companies should refine their plans to address and
avoid potential negative human rights impacts on an ongoing basis."[136]
24. It is essential that the "internationally
recognized human rights" which the company is required to
respect should specifically include the right of indigenous peoples
to their traditional lands, and their right not to be removed
from them without their prior informed consent. These rights are
unique to indigenous peoples, reflecting the unique relationship
that they bear to their land and territories. Unless their consent
is obtained at all stages of the project lifecycle, indigenous
peoples will be effectively denied their more conventional human
rights as individuals.
25. Affected communities can only consent
to a project if they are informed about its nature, duration and
impact in a culturally appropriate manner. Anthropological or
other expert evidence may be required to determine what is appropriate
in any particular case, and the commission would need to have
the power to call for such evidence where it was required. Provision
would also have to be made to meet the costs incurred by indigenous
communities in making representations to the commission.
CONCLUSION
26. The particular rights of indigenous
peoples are now well established in international law. Over the
last few years many companies have come to recognise that it is
in their own best interests to recognise and respect those rights.
They know that if they fail to do so they risk significant delays,
reputational damage and hugely increased security costs, as well
as the prospect in some cases of future litigation. These risks
can only increase as indigenous groups become better organised
(or, depending on your point of view, more militant).
27. There remain companies, however, that
cling to the view that their investors are concerned solely with
profits, and that they can safely rely upon their superiority
of arms to defeat any indigenous community that confronts them.
They know that local laws will not usually be allowed to stand
in their way. They think they know that UK laws cannot deter them
either. We hope that the JCHR can take effective steps to disabuse
them of this notion.
30 April 2009
130 For details see http://www.survival-international.org/news/4152 In
a recent altercation, Dongria tribesmen apparently resorted to
violence to repel Vedanta personnel from Niyam Dongar. Local tensions
continue to increase. Back
131
The complaint can be accessed at www.oecdwatch.org/cases/Case_165/753/at_download/file
. The initial assessment by the DBERR is at http://www.berr.gov.uk/nationalcontactpoint.
For the background, see www.survival-international.org/tribes/dongria Back
132
See http://www.survival-international.org/news/3166 for
details. Back
133
By "indigenous peoples" we mean people characterised
by a close attachment to ancestral territories, self-identification
as members of a distinct indigenous group, and a subsistence-oriented
production. Back
134
See http://www.business-humanrights.org/Documents/Policies Back
135
Vedanta, for example, is not a member of the IMCC. Nor is Gem
Diamonds. Back
136
Protect, Respect and Remedy: A Framework for Business and Human
Rights [A/HRC/8/5] §61 Back
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