Land Rights (Tribal and Indigenous Peoples) (Extractive Industries)

The Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR, Court) are the two principal and autonomous organs of the Organization of American States, whose mission is to promote and protect human rights in the American hemisphere.

IACHR document (30 December 2009) – Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources, norms and jurisprudence of the Inter-American Human Rights System is here.

The IACtHR press release of its decision (2012) in Sarayaku v Ecuador is here.

The IACtHR, Court decision (2007) in Saramaka v Suriname is here.

These judgements address the rights of indigenous peoples when faced with commercial projects on their ancestral lands.

In summary, the Inter-American human rights system addresses the rights of indigenous communities in the following manner.

The Inter- American Commission decides petitions on the merits, issues precautionary measures, holds thematic hearings, and publishes reports concerning indigenous peoples throughout the hemisphere.

It has also refers various matters to the Inter-American Court for binding resolution. In response, the Court issues provisional measures and judgments with respect to indigenous rights.

There is no Court derived definitive and exhaustive definition of indigenous peoples, although self-identification is stressed, and the Court identifies as significant (for the purposes of determining who if any will have rights): peoples who own “social, cultural and economic traditions different from other sections of the national community,” who “[identify] themselves with their ancestral territories,” and who “[regulate] themselves, at least partially, by their own norms, customs, and traditions.” (Saramaka related to tribal peoples)

Saramaka’s interpretations permit commercial projects that do not “fully extinguish” a way of life, or that do not endanger the “very survival” of a people. But observers identify this is at variance with the Court’s radical affirmation of Article 21 (American Convention) as a self- determination principle “calling for [a people’s right] to freely determine and enjoy their own social, cultural and economic development.” They also conflict with earlier case law, which, inter alia, required special measures of protection to achieve a vida digna for indigenous populations.

In Sarayaku the State had granted a communal property title to the Sarayaku (Kichwa indigenous people of Sarayaku, Ecuadorean Amazon), but it had reserved a number of rights, including rights to subsurface natural resources. Ecuador then signed a contract with a foreign company to initiate oil exploration.

In this case, the Court found the State responsible for violating rights of the community of Sarayaku, their ancestral lands and cultural identity, for not granting effective legal protection, and for having placed their life and personal integrity in danger in the presence of seismic explosives within their territory.

The Sarayaku judgment key elements:

– Article 21 protects rights to communal property
– the indigenous community itself suffered the collective property violation
– the Sarayaku, as a group, experienced other rights violations as well.

NB: In previous judgments, the Court had only found violations “to the detriment of the [individual] members” of a community, even if the right to communal property was breached. Such a formulation recognized the Convention’s Article 1, the central provision that obligates States Parties to respect and ensure the treaty’s rights to “all persons subject to their jurisdiction”—”person” defined as “every human being.”

In this sharp break with the past, the Sarayaku Court has apparently adopted a wider definition of “person,” following the views of bodies such as the U.N. Committee on Economic, Social and Cultural Rights.

– Article 1 of the ICCPR and ICESCR (international treaties in the area) no longer serves as a reference point, despite the fact that Ecuador had already ratified both treaties. NB: the Court avoided the term ‘self-determination’ altogether.

– The judgment acknowledged Saramaka’s three safeguards: effective participation, reasonable benefits, and the impact assessment.

NB: it did not examine the concept of benefits, also the Court’s standard on consent was ignored. Saramaka had held that, in specific circumstances, the “effective participation” of the indigenous community actually required the group’s consent for a project to move forward.

Sarayaku devoted a great deal of attention to the baseline of effective participation: the state obligation to consult indigenous populations before projects begin. Saramaka had already asserted that this constituted a “right to consultation” for communities whose traditional lands were threatened. The Court in Sarayaku noted that Ecuadorian law “fully recognized this right.” Sarayaku then surveyed regional law on this subject, and recognized its status in international instruments such as the ILO No. 169. The Court’s assessment sought to establish the right to consultation not only as a norm protected in the American Convention, but also as a “general principle of international law.”

The above text is informed by analysis found here.

Athabasca Jackpine Mine Expansion Update (Canada)

The information set out below is informed by:
(A) Shell Canada here;
(B) the Athabasca Chipewyan First Nation (ACFN) request filed January 3, 2014 of the Federal Court to review the Crown’s December 2013 decision to approve the Joint Review Panel report and decision to authorize Shell’s Jackpine Mine Expansion project proposal, and declare the decision invalid and unlawful, here; and
(C) the article by Catherine Lyons and Joseph Hoffman of Goodmans LLP here.

The Jackpine Mine Expansion is a potential future development of Athabasca oil sands mining leases in northern Alberta that extend to the north of the current Jackpine Mine, operated by Shell on behalf of the Athabasca Oil Sands Project owners, Shell Canada Energy (60%), Chevron (20%) and Marathon Oil Canada (20%).

The regulatory application was submitted in 2007 and describes a potential 100,000 barrels per day oil sands mining expansion, including additional mining areas, associated processing facilities, utilities and infrastructure.

In October 2012, a public hearing held in Fort McMurray, Alberta, gave interested individuals and organizations an opportunity to ask questions about the Project and to provide their views to the Joint Review Panel.

The Joint Review Panel for the Jackpine Mine Expansion Project is an independent federal-provincial body, mandated by the Canadian Minister of the Environment and the Chairman of the Alberta Energy Regulator (formerly Alberta Energy Resources Conservation Board) to assess the environmental effects of the proposed project and ultimately decide whether it is in the public interest.

In July 2013, the Joint Review Panel issued its Decision Report, deeming the Jackpine Mine Expansion Project to be in the public’s interest and recommending it for approval. The Decision Report made 88 recommendations, however, to mitigate the adverse impacts identified.

In December 2013, the Federal Minister of Environment issued a Decision Statement, setting out the conditions with which Shell must comply during the development, operation and reclamation of Jackpine Mine Expansion. This Decision (issued December 6) is the first to be made under the Canadian Environmental Assessment Act, 2012 S.C. 2012 c. 19, s. 52 (“CEAA 2012”), and is issued alongside referral to the Federal Cabinet.

In his consideration of the report of the Panel, the Federal Environment Minister held that the Project would likely cause significant adverse environmental effects. This determination triggered the provisions of the CEAA 2012, requiring a referral to Federal Cabinet. The Federal Cabinet subsequently determined that the significant adverse environmental effects are justified in the circumstances. The Project could therefore proceed subject to conditions set out by the Environment Minister in the Decision Statement. Generally, the conditions can be classified as:

1. preserving plants, aquatic and terrestrial wildlife;

2. implementing environmental mitigation measures;

3. considering Project effects on First Nations;

4. submitting annual reports; and

5. establishing plans for closing Jackpine Mine.

If Shell Canada does not comply with the conditions set out in the Decision Statement, it will face compliance and enforcement action. This may include financial penalties of up to $400,000 per day if convicted for a continuing offence.

A final decision to proceed with the Project would come in the form of a Final Investment Decision by the Athabasca Oil Sands Project joint venture owners, Shell (60%), Chevron (20%) and Marathon (20%).

The Project is within ACFN’s traditional lands. It is part of the ACFN application to the Federal Court that it participated in the various processes relating to the Project over the course of six years, including lengthy regulatory hearings before a Joint Review Panel, and it consistently and repeatedly raised its concerns about the Project with Canada and sought meaningful protection for its Treaty 8 rights, as promised by section 35 of the Constitution Act, 1982.

ACFN assert that (the nation of) Canada breached its duties to consult and accommodate ACFN with respect to the Project and the manner in which the Project will impact ACFN’s constitutionally protected section 35 rights. In addition, the process, and mitigation offered, was inconsistent with the requirements of the federal Species at Risk Act, the Migratory Birds Convention Act, as well as international agreements and conventions to which Canada is a signatory.

In addition, ACFN assert Canada did not implement many central recommendations of the Joint Review Panel, and with very limited exceptions did not implement ACFN’s proposals either. Also Canada did not provide concrete and equivalent alternative accommodation to address the serious impacts of the Project.

In addition, ACFN assert the Federal Cabinet in approving the project, provided no reasons nor explanation at all for why the significant adverse impacts of the Project were justified.

Environment Legislation Amendment Bill 2013 (Australia)

The Environment Legislation Amendment Bill 2013:

(a) addresses the implications arising from the Federal Court’s decision in Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694 (the Tarkine case ); and
(b) amends the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act ) to provide additional protection for turtles and dugong which are listed threatened, migratory or marine species (‘listed’ turtles and dugong) by increasing the financial penalties for various offence and civil penalty provisions; and
(c) amends the Great Barrier Reef Marine Park Act 1975 (Cth) (the GBRMP Act ) by providing additional protection for protected species under the GBRMP Act, if those species are in the Genus Dugong (dugong); or the Family Cheloniidae (marine turtles); or are the species Dermochelys coriacea (leatherback turtles).

Amendments relating to approved conservation advice

Schedule 1 of the Bill provides that a failure by the Minister to comply with a requirement to have regard to any relevant approved conservation advice for specified decisions and instruments under the EPBC Act made prior to 31 December 2013, does not invalidate those decisions and instruments. The requirement to consider approved conservation advice under the EPBC Act is not altered by the amendments. The objective of Schedule 1 of the Bill is to address the implications arising from the Tarkine case.
Schedule 1 of the Bill will apply to decisions and instruments made prior to 31 December 2013 to provide certainty for decisions and instruments made by the Minister under the EPBC Act before that date. This will not limit the rights of proponents under the EPBC Act.

Amendments relating to turtles and dugong

Schedule 2 of the Bill amends the EPBC Act and the GBRMP Act to provide additional protection for dugong and turtle populations from the threats of poaching, illegal trade and illegal transportation. The amendments increase the financial penalties for various offences and civil penalty provisions relating to listed dugong and turtles. These amendments will deter persons from committing offences or breaching civil penalty provisions by imposing increased penalties in respect of the illegal killing, injuring, taking, trading, keeping or moving of turtles and dugong.

The Bill’s Explanatory Memorandum (revised) is here.

The Bill is in the Senate (the second house) and is expected to be presented to the Governor-General for assent in 2014 – it’s progress may be followed here.

Queensland Coal and Coal Seam Gas Assessments and Approvals (Australia)

Queensland coal and coal seam gas projects are regulated by the (Queensland) State Development and Public Works Organisation Act 1971 (SDPWO Act).

The SDPWO Act is administered by the Coordinator-General and the relevant minister. The Coordinator-General acts, with wide-ranging powers, to plan, deliver and coordinate large-scale infrastructure projects. Information posted by the Queensland Department of State Development, Infrastructure and Planning about the activities of the Coordinator-General is here.

Information on assessments and approvals under the auspices of the Coordinator-General is here.

Proponents of projects of economic, social and/or environmental significance to Queensland may elect to prepare an environmental impact statement (EIS) that is evaluated by the Coordinator-General. These are termed Coordinated Projects.

One or more of the following characteristics will be evident:
– complex approval requirements, involving local, state and federal governments
– significant environmental effects
– strategic significance to the locality, region or state, including for the infrastructure, economic and social benefits, capital investment or employment opportunities it may provide
– significant infrastructure requirements.

But, the Coordinator-General is not bound to declare a project to be a coordinated project merely because it satisfies one or more of these characteristics. Any declaration made is under the State Development and Public Works Organisation Act 1971 (SDPWO Act).

Remember also that a memorandum of understanding exists between Queensland and the Australian Government surrounding the matter of ‘one stop shop’ at state-level for environmental approvals. My earlier post on this is here.

NB: Proponents of projects may be required to prepare an environmental impact statement (EIS) in Queensland under either the:
– State Development and Public Works Organisation Act 1971, or
– Environmental Protection Act 1994, or
– The Sustainable Planning Act 2009.
These are Queensland state laws.

If stipulated in the terms of reference, the EIS must also include a social impact assessment. The social impact assessment identifies the social impacts directly related to the project and proposes strategies to capitalise on social opportunities and to avoid, manage, mitigate or offset the predicted detrimental project.

The Coordinator-General may make one of two types of coordinated project declaration –
– requiring an environmental impact statement (EIS)
– not requiring an EIS – before making this declaration, the Coordinator-General must be satisfied the appropriate environmental impact assessments will be carried out under other legislation (e.g. Environmental Protection Act 1994 or Sustainable Planning Act 2009).
The Coordinator-General may also independently declare a coordinated project if he thinks it is justified.

Information on Coordinated Projects is found here.

Information on Coordinated Projects that are current EIS projects is here.

The Carmichael Coal Mine and Rail Project, for example, is a Queensland Coordinated Project with a current EIS in progress – information is here.

Deep Drilling Amendment Proposed for EIA (Ireland)

A review of the transposition of the European Environmental Impact Assessment (EIA) Directive in Irish law, as relevant to the Marine Planning and Foreshore section of the Department, has identified that amendments to the relevant legislation are required to ensure that Point 2(d) of Annex II of the Directive (which refers to deep drillings) is adequately transposed.

The relevant legislation includes the Planning and Development Act, the Planning and Development Regulations 2001 and the Foreshore Act. As the amendments will give effect to EU law, an amending regulation under the European Communities Act 1972 is appropriate. An amendment to each of these pieces of legislation is considered appropriate.

The purpose of the amendments is to bring any deep drilling, except drilling for investigating the stability of the soil (the exception permitted by the EIA Directive) into the legislative framework. All deep drilling requiring either planning permission or a foreshore consent will have to be screened for EIA on a case by case basis by the relevant competent authority (i.e. the planning authority/An Bord Pleanála in the case of planning applications, or the Minister in the case of foreshore consents). EIA will be mandatory in respect of such deep drilling unless the screening process determines otherwise.

The Irish Department of the Environment, Community and Local Government is inviting submissions on the recently published draft European Union (Environmental Impact Assessment) (Planning and Development) Regulations which will make these amendments.

The draft Regulations are here.

Public consultation expires 17th January 2014. Information about the consultation is found here.

Environment Protection and Biodiversity Conservation Act 1999 (Australia)

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the Australian Government’s core piece of environmental legislation which commenced 16 July 2000. Information about the EPBC is found here. We posted earlier about the EPBC water trigger.

The EPBC Act enables the Australian Government to join with the states and territories to deliver a national level scheme of environment and heritage protection and biodiversity conservation. The EPBC Act has the objective to focus the Australian Government interests on the protection of matters of national environmental significance, with the states and territories having responsibility for matters of state and local significance.

Following a change of government, a ‘one stop shop’ for environmental approvals that will accredit state planning systems under national environmental law, to create a single environmental assessment and approval process, is being pursued. This one stop shop policy aims to simplify the approvals process for businesses, lead to swifter decisions and improve Australia’s investment climate, while maintaining high environmental standards.

On 16 October 2013, the Minister for the Environment, the Hon Greg Hunt MP, announced that the Government had approved the framework for achieving the one stop shop. This includes a three-stage process with each of the willing jurisdictions, comprising:

– signing a Memorandum of Understanding;
– agreement on bilateral assessments and updating any existing agreement with the state; and
– negotiation of approval bilateral agreements within 12 months.

Memoranda of Understanding have to date been formed with New South Wales and Queensland. The status of current proposals and agreements reached, together with the associated documents is found here.

Queensland has extensive coal resources. The Kevin’s Corner and Alpha coalmines are two of a series of developments planned for the coal-rich Galilee basin area of central Queensland. GVK’s press release on the proposed Kevin’s Corner coal mine is here.

Per the Guardian news article on legal action being considered by environmental groups – Carbon emissions from coal mined at Kevin’s Corner are estimated at 58m tonnes a year – more than the entire annual emissions of Denmark. Construction is set to start in 2015, with the first coal mined in 2018.

Environmental Impact Assessment (EIA) Directive

The European Parliament has today voted on the European Commission’s proposal for a revised EIA Directive.

Following today’s vote in the European Parliament on the revised Environmental Impact Assessment Directive, EU Environment Commissioner Janez Potočnik said:

“I welcome the outcome of today’s vote on the Commission’s proposal for a revised Environmental Impact Assessment Directive. This paves the way for much-needed changes that will modernise the current directive, in line with the REFIT agenda, improving its effectiveness and streamlining related administrative processes. Fundamentally, it’s a vote of confidence in what has always been one of the foundations of EU environment policy, a key piece of legislation that ensures the concerns of citizens are taken into account when important new developments are needed. We will now be carefully examining the proposed amendments. I look forward to working closely with the Parliament and Member States to ensure progress is made towards adopting the revised directive as soon as possible.”

Per the European Commission’s webpage on this – the proposed revised EIA Directive is intended to lighten unnecessary administrative burdens and make it easier to assess potential impacts, without weakening existing environmental safeguards. “The quality of the decision-making process will be reinforced, current levels of environmental protection will be improved, and businesses should enjoy a more harmonised regulatory framework. The changes are also forward looking, and emerging challenges that are important to the EU as a whole in areas like resource efficiency, climate change, biodiversity and disaster prevention will now be reflected in the assessment process.”

Pilliga Gas Project (Australia)

The Federal Minister for the Environment, Australia, has ruled the Santos’ plan to explore for coal seam gas (CCG) in the Pilliga is not a “controlled action” under the federal Environment Protection and Biodiversity Conservation Act. This means the new “water trigger” in the Environment and Biodiversity Protection Conservation Act is not invoked (Santos already has state NWS permissions), and a full environmental impact study is not required.

In June, Santos itself made a referral under the federal Environment and Biodiversity Protection Conservation Act seeking federal clearance for the program.

In July, the federal Environment Department confirmed it had received 3,800 submissions concerning Santos’ planned development, the vast majority of which opposed the project. Here is the web presence of one of the campaign groups.

Here is the ABC news article on the Federal Minister’s decision.

Conditions are:

(1) If the threatened Pilliga Mouse, Regent Honeyeater or Koala are found in pre-clearance surveys, no construction is to take place during their breeding season.

(2) Staff and contractors must attend an induction by an ecologist;

(3) The groundwater must be monitored; and

(4) There must be log book records kept of flora and fauna.

The Minister’s decision allows for the felling of up to 400 hollow-bearing trees and the removal of up to 235 Cobar Greenhood Orchids.

Per the ABC news article – Santos says it’s pleased to learn its activities in the Pilliga do not impact water resources or other Commonwealth matters of national environmental significance. Spokesman, Sam Crafter, says the Commonwealth’s decision allows Santos to drill 15 new wells and turn on existing pilots already built by the former operator, Eastern Star Gas.

Windfarms (UK)

Judicial Review is upheld in relation to a decision of the Scottish Ministers dated 4 April 2012 to grant consent for the construction and operation of a 103 turbine Viking Wind Farm in Central Mainland, Shetland.

This lengthy Opinion is the first time a petition for Judicial Review of a decision to grant planning permission for a wind farm development has been successful.

The Opinion (ruling) identifies that the decision by the Scottish Government Ministers to grant planning permission was unlawful:
(a) the Scottish Ministers had failed to follow the EU Wild Birds Directive (as respects a rare bird, the whimbrel),
(b) the applicant (for planning permission) did not have a licence to generate electricity.

Here is a short guide to Judicial Review in Scotland.

Here is the Shetland Times news article on the ruling.

Changes to Clean Water Act CAFOs (US Iowa)

The USA EPA has reached agreement with the Iowa Department of Natural Resources (IDNR) for it to make changes to Iowa’s Clean Water Act (CWA) permit and compliance program for concentrated animal feeding operations (CAFOs).

Included in this agreement are IDNR’s commitments to:

* carry out a comprehensive survey of all large CAFOs and medium animal feeding operations that currently don’t have CWA wastewater discharge permits and identify those that discharge to natural water and have failed to comply with the permit application or other Iowa requirements,

* inspect all permitted NPDES CAFOs within five years following an agreed upon inspection procedure,

* issue timely wastewater discharge permits to all CAFOs determined to discharge to local waterways.

Also, Iowa’s CAFO rules will be changed to align with the federal CWA.

Further information is found in the USEPA Press Release.