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.

Opencast Coal Restoration Consultation (Scotland)

The Scottish Government is presently consulting on restoration activities in the opencast coal sector. The consultation seeks views on more effective regulation to secure restoration at existing and future (opencast) coal mines where coaling is incomplete and for future sites including extensions.

Documents relating to this consultation are here.

Consultation ends 27th February 2014.

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.

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.

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.

Agreement on Nevada Anaconda Tort Case (US)

Residents local to the old Anaconda copper mine in Nevada had filed a class action lawsuit after the federal USEPA investigation determined that uranium, a by-product of the mine, was leaking into groundwater, resulting in “dangerous levels of uranium or arsenic or both” in 79% of wells north of the mine. A US Labour Department review in 2008 also revealed that the clean-up schedule had not been enforced.

The Defendents (the mining company) had moved (in court) to dismiss seven of the ten claims, but the Court had upheld the Residents claim founded in Rylands v Fletcher strict liability. Here is the Court ruling dated 30th August 2011.

Per the ABC news article – Fueled by demand after World War II, Anaconda produced 1.7 billion pounds of copper from 1952-78 at the mine in the Mason Valley, an irrigated agricultural oasis in the area’s otherwise largely barren high desert. The EPA determined over the years that uranium was produced as a byproduct of processing the copper and that radioactive waste was initially dumped into dirt-bottomed ponds that — unlike modern lined ponds — leaked into the groundwater.

BP and Atlantic Richfield, which bought Anaconda Copper Co. in 1978, provided bottled water for free to any residents who want it for several years. But they say uranium naturally occurs in the region’s soil and there is no proof that a half-century of processing metals is responsible for the contamination. Local residents started seeking outside legal help after a new wave of EPA testing first reported by the AP in November 2009 found that 79 percent of the wells tested north of mine had dangerous levels of uranium or arsenic or both that made the water unsafe to drink. One and a half miles away had uranium levels more than 10 times the legal drinking water standard. At the mine itself, wells tested as high as 100 times the standard.

Though health effects of specific levels are not well understood, the EPA says long-term exposure to high levels of uranium in drinking water may cause cancer and damage kidneys.

Per the ABC news article – The companies agree to pay $7 million in property damages and $900,000 to a medical monitoring fund. The final damages will depend on the cost of extending city water supplies to about 200 residents, estimated between $6.5 million and $12.5 million.

UK Coal & Mining Safety Major Fines

UK Coal Mining Ltd (formerly the UK’s largest coal producer, and now in administration) was prosecuted (22nd Oct) in two cases of major safety failings at its Kellingley Colliery in North Yorkshire.

In the first case (safety failings leading to a gas explosion underground at the Kellingley 501 District) – an explosive mixture of flammable gases had accumulated close to the area where miners were working because a safety curtain, designed to keep gases safely behind the coal face, was inadequately maintained. The Mines Inspectorate of Britain’s Health and Safety Executive (HSE) found the curtain was damaged with one section cut and another removed, rendering it ineffective and allowing the explosive methane mixture to gradually move closer to the working area and to potential ignition sources. It was likely ignited initially by sandstone falling on to sandstone. Some 218 miners were safely evacuated. Dozens of further minor explosions took place just behind the coal face as accumulated gas ignited – probably from a residual hanging flame – and then burnt off. It was nearly three weeks before production was able to resume.

In the second case (safety failings leading to a fatality) – a miner was killed when some 15 tonnes of rock forming a section of roof collapsed as a powered roof support was being operated. His death happened just six days after a similar roof fall in the same vicinity of the mine with the same powered roof support in operation. HSE’s investigation identified that UK Coal managers were fully aware of the earlier roof fall, which fortunately hadn’t resulted in any injuries. However, despite the clear dangers posed to workers, no investigation into the failure of the roof support was carried out and insufficient precautions were taken to prevent it happening again. HSE also found the company had not improved the system of monitoring the roof supports to ensure warning signs of ground movement would be picked up quickly. The miner was trapped near to the centre of the roof fall and died from asphyxiation. A second miner was released after being trapped toward the edge of the collapse and allowed home after hospital treatment.

HSE told the court that it was unacceptable for UK Coal to have allowed miners to continue to work in that part of the mine following the earlier roof fall without:
– having carried out an in-depth investigation into the cause
– putting measures in place to prevent a recurrence
– workers being fully aware of the potential dangers, and
– establishing suitable procedures to ensure no one was in the area when the roof support was in operation.

Section 2(1) of the Health and Safety at Work etc Act 1974 states: “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

Fines were against Juniper (No3) Limited, c/o the administrators at Bridgewater Place, Leeds (£50,000 and £200,000 respectively), after a guilty plea (in both cases) to breaches of Section 2(1) of the Health and Safety at Work etc Act 1974. It was agreed that although prosecution costs were properly incurred they would not be awarded so as not to jeopardise any potential payments to the Miners’ Pensioners’ coal allowance scheme, a main creditor against UK Coal’s limited financial assets.

There have been 15 fatalities in mines in Great Britain since 2006, including four deaths at Gleision in South Wales in September 2011, as well this fatality at the Kellingley pit.