2. Free, Prior, and Informed Consent in Africa: An emerging standard for extractive industry projects
By Emily Greenspan
OXFAM AMERICA RESEARCH BACKGROUNDER
3. 123s and FPICs: New human rights report has all the community consent essentials
April 26, 2016 Posted by Emily Greenspan
The Inter-American Commission on Human Rights doesn’t pull any punches in its latest report on natural resources and the rights of indigenous communities to them.
Indigenous communities have the right to say “no” before large-scale projects begin, the Inter-American Commission on Human Rights says in its latest report. The Commission – a body of the Organization of American States tasked with promoting and protecting human rights in the Americas – just launched a new report looking at human rights protections for indigenous peoples’ and afro-descendent communities’ around natural resource projects. The report delves into the issue of Free, Prior, and Informed Consent (FPIC), leaving little room for FPIC naysayers to argue over the fundamental tenets of the principle.
With this report, the Commission reaffirms its position as a real thought leader on community consultation and consent related to oil, gas, and mining projects, weighing in on some of the more hotly debated questions related to FPIC implementation. Governments and companies looking to put FPIC policies into practice should pay close attention to this guidance. This includes many of the world’s largest companies, who are members of the International Council of Mining and Metals and bound by its FPIC requirement. Here’s what the Commission has to say about what FPIC should mean in practice:
Effective FPIC implementation requires governments and companies to avoid the use of manipulative or coercive tactics when they engage with communities. The report underscores this point, reminding readers that “there should be no coercion, deception, or any kind of force used” in consultations with communities. However, the Commission goes farther, also considering whether communities are actually obligated to engage in dialogue at all. What if communities decide against a project and choose not to engage in consultations – are they obligated to invest their time in these processes? The report answers with a clear ‘no’, stating that the Commission “…is directed to ensure that indigenous and tribal peoples can decide if they wish or not to initiate a consultation process.”
How early in project development should community consultation and consent processes begin? The Commission states that this should happen much earlier than it typically does – before concessions have been awarded. On the issue of granting project licenses without consultation, the report states:
…the [Latin America] region is plagued by a constant structural problem that relates to the granting of concessions, authorizations and permits of all kind without complying with indigenous peoples’ right to consultation and, where appropriate, free, prior and informed consent. With an alarming frequency, the Commission receives information about plans or projects of various kinds that affect the rights of indigenous and tribal peoples, who, nonetheless, are neither consulted, nor has their consent been obtained in the cases where it is required.
An informed community consultation process will facilitate the sharing of objective, accurate, and easily understood information about potential projects, including associated risks. The Commission’s report highlights the need for “full and precise information on the nature and consequences of the process on the peoples and communities consulted.” It specifies that the information provided be “sufficient, accessible and timely.” Additionally the report notes that in some circumstances states should provide independent technical assistance to indigenous peoples.
Fundamentally, communities must be able to give or withhold their consent to a project prior to the commencement of all activities. The report looks closely at the requirement for government to secure “consent” (as opposed to mere consultation), examining when this is mandatory. It cites the well-known Saramaka People v. Suriname case which found that “regarding large-scale development or extraction projects that would have a major impact within [the indigenous] territory, the State has a duty, not only to consult with the [indigenous peoples], but also to obtain their free, prior, and informed consent, according to their customs and traditions.” Using this decision as a starting point, the Commission goes further to examine what constitutes “large-scale.” For example, without a doubt, extractive industry projects fit the bill. The report states that “certain activities could be considered prima facie as large-scale, such as those related to large-scale mining, oil and gas exploration.” The Commission also notes that “large-scale” may refer to the impacts of the project and not just the project’s size. States must consider “human and social impacts of the activity” when examining whether a project qualifies as large-scale and therefore requires community consent.
With its discussion of FPIC, the Commission lays out in black and white its views on how states should be putting the principle into practice. Yet governments have struggled to implement FPIC in practice throughout the region, despite a few important policy gains in countries like Peru and Chile. It’s time for governments to heed the Commission’s good advice and up their game on FPIC policy and implementation.
Subject(s): Mining; Mining Law; Canada; Free Entry
The public is becoming more concerned with the environmental impacts of mining, and the privileged access that the mining industry receives. The allocation of mineral tenures, or the law of free entry, is a key structural issue that contributes to the preferential treatment enjoyed by the mining industry. The original purpose of free entry laws was to encourage mining activity; the underlying philosophy was that mining was the best use of land. In exchange for obtaining resource development and a “taming of the wilderness,” the government did not interfere with miner activity. Although times and values have changed dramatically, the system remains in place and in use. Its application in the 21st century is, however, inequitable and poses great risks for the environment. Structural reforms must be achieved in order to ensure that mining does not unduly harm our environment and our communities, and to place mining on a level playing field with other industrial land uses.
5. Fighting Free Entry: Ending mining’s privileged access to land
By Joan Kuyek
OTTAWA, ONTARIO–In Ontario, Aboriginal organizations and landowners may be about see an end to the province’s archaic “Free Entry” system, the system that governs the allocation of mineral tenure in most jurisdictions across Canada.
Free Entry allocates rights to mineral tenure (the right to explore and potentially extract minerals on a tract of land) through claims staked on a first-come, first-served basis. It guarantees the claim-holder the exclusive right to develop a mine on the land, if economically viable minerals are found.
Free Entry applies to all Crown lands, most of which are First Nations traditional territory. It also applies to private properties, because mineral rights belong to the Crown, not to the surface-rights holder.
Canada is one of the few countries with this system of mineral tenure. In December 2007, the Environmental Commissioner of Ontario stated, “This century-old system continues to rely on principles that are no longer reflective of modern planning or resource management.”
The Ontario Court of Appeal has called the Mining Act “a remarkably sweeping law,” which allows no role for communities in deciding when and how mineral exploration will take place.
In British Columbia, mineral claims can be staked online, with the click of a mouse from anywhere in the world.
A number of Supreme Court decisions under Section 35 of the Constitution, which recognizes existing Aboriginal treaty rights, reinforce the right to meaningful consultation and accommodation of Aboriginal interests. The Mining Act is in direct conflict with Section 35.
Mineral staking entails the creation of a third-party interest on lands of Aboriginal use and occupation. First Nations are demanding to be consulted and accommodated before claims are staked.
They insist that they need to evaluate the potential effects mining and mineral exploration are likely to have on other uses of the land before they allow it to go ahead. For this consultation to be meaningful, it has to acknowledge the right of the Aboriginal government to say, “No.”
In November 2005, an official press release from the Nishnawbe Aski Nation (NAN, which represents 49 First Nations in Ontario’s North), stated:
“We are facing a multitude of First Nation grievances triggered by mining exploration that could at any time lead to an explosive conflict. A number of NAN First Nations have declared moratoriums on mining exploration and development. The immovable object of mining company shareholders and Mining Act assessment requirements will one day meet the irresistible force of Treaty rights with predictable consequences. At issue is the so-called Free Entry system. The ownership of the land itself is in dispute.”
Communities fight back
In British Columbia, the Takla Lake First Nation has prevented Imperial Metals’ access to its exploration site on Bear Mountain for more than three months. Bear Mountain is sacred to the First Nation. Two watersheds, the Driftwood and Bear, originate on the mountain’s slopes. Both are headwaters for endangered salmon runs. ”We’ll protect it with all our might,” councillor Victor West told The Tyee in August.
In the northwest of the province, sacred headwaters in Tahltan Territory have also been off-limits to mining exploration for more than three years, due to blockades enforced by elders in the community. There have been a number of arrests of community members, including Lillian Moyer, a great-grandmother.
In New Brunswick, landowners in Turtle Creek and Cambridge Narrows say they are experiencing increased pressure while prospecting and that many landowners are “infuriated” by uranium prospecting tags in their properties. Tracy Glynn and Craig Johnson, both New Brunswick residents, wrote in the Times & Transcript, “This represents a violation of their property and their rights as landowners in the province – these New Brunswick citizens are perfectly justified in raising concerns over the implications of these tags for the future of their land.”
They have been supported by New Brunswick First Nations in their demands for change.
In Quebec, a new coalition, Pour que le Québec Ait Meilleure Mine (a play on words, as “mine” also means “appearance”), is advocating for an end to “Free Mining,” which allows for universal access and first-come, first-served mineral licensing. The coalition is also pushing for a number of changes to the Mining Act, including improved closure bonding, which would require companies to guarantee funds to pay for mine closure in order to prevent abandonment.
Similarly, property owners and First Nations in Ontario have been demanding changes to the Mining Act. In spring 2008, seven leaders from the Ardoch Algonquin and the Kitchenuhmaykoosib Inninuwug (KI) First Nations were jailed for contempt when they refused to acknowledge a court injunction to open their traditional lands to mineral exploration.
There was a huge public mobilization and outcry, and the leaders were released in May. However, the Ardochs still have a multi-million-dollar default judgment against them from the mining company, the company has asked leave to appeal the release of Bob Lovelace to the Supreme Court, and the trial court is still seeking costs from that hearing from the non-status community.
By July 14, the Ontario Premier was forced to address the reform of the Mining Act. In a news release, he stated:
“Our plan will ensure that mining potential across the province is developed in a sustainable way that benefits and respects communities. We will ensure that our mining industry remains strong – but we also need to modernize the way mining companies stake and explore their claims to be more respectful of private land owners and Aboriginal communities. The Ontario government believes exploration and mine development should only take place following early consultation and accommodation of Aboriginal communities.”
Consultations on the Ontario changes continue, although many First Nations argue that the process is moving too fast and does not provide them with time or resources for the communities to study the proposed reforms.
As provincial governments are feeling more and more pressure to reform how mining is carried out across the country, non-governmental organizations are beginning to lead the way.
A report prepared by Eco-Justice and the Canadian Institute of Environmental Law and Policy was released in early October. Endorsed by a collaboration of many well-respected NGOs, the report provides a model for the changes, including agreement from First Nations before staking can take place, a permitting system and environmental assessment for each stage of mining, and an end to self-assurance for mine closure. The report states:
“As a world leader in mining production and exports, Ontario’s mining industry should also be a world leader in promoting and engaging in sustainable, responsible mining practices. The Ontario government must play a lead role in ensuring that such sustainable, responsible practices are adopted, especially given that Ontario’s mining laws and policies are used as a model for developing nations where Canadian mining companies operate.”
Joan Newman Kuyek is a writer and researcher living in Ottawa, and is the former National Coordinator of MiningWatch Canada.
The free entry system is based upon the following premises:
•Mining prevails over private property interests.
•Mining is the highest and best use of Crown lands.
•All Crown lands are open for staking and mineral exploration unless they are expressly excluded or withdrawn by statute.
•Mining prevails over Aboriginal land rights.
•Mineral tenures are appropriately granted on a “first come, first served” basis.
•Mineral potential is so valuable that it warrants leaving the staked area essentially unregulated and potentially unusable for other resource interests.
6. End Mining’s Privileged Access to Land! Communities Across Canada Outraged by the Free Entry System
Across Canada, communities and Aboriginal governments are saying they have had enough when it comes to the privileged access mining has to land under the existing system, which grants “free entry” to prospectors and mining companies under the assumption that mining is the “highest and best” use of land.
In Ontario, British Columbia, Quebec and the Northwest Territories, communities are organizing to end the free entry system.
In December, in the Ontario Superior Court in Thunder Bay, Kitchenuhmaykoosib Inninuwug (KI) leadership stated that they would rather be jailed for contempt of court than allow Platinex Inc., a junior mining company, to drill on their customary homelands.
Neal Smitheman, of law firm Fasken Martineau, representing Platinex, threatened to bring in armed guards to protect the drillers. Back in February 2006, Platinex already had brought in a British mercenary to protect its mining activities.
The company has sued the First Nation for $10 billion for protecting their customary homelands. The First Nation then filed a counter suit challenging the constitutional right of Ontario to grant mineral rights on their lands without meaningful consultation. Defending their rights against the company has brought the First Nation to the brink of bankruptcy, but they continue to fight.
KI enjoys the support of the Independent First Nations Alliance and the Nishnawbe Aski Nation, which represents 47 First Nations in northern Ontario. At least ten of these First Nations have moratoriums on mineral development in their territories.
In southern Ontario, the Ardoch and Shabot Obaadjiwan Algonquin First Nations have been trying to stop Frontenac Ventures, a tiny private company, from exploring for uranium on their traditional territories. Non-native families are also concerned about staking and exploration in the area, and have organized the Community Coalition Against Mining Uranium. All are demanding changes to the Ontario Mining Act.
On December 4, 2007, Gord Miller, the Environmental Commissioner of Ontario (ECO), added his voice to the cries for change to the Mining Act, saying, “[t]his century-old system continues to rely on principles that do not reflect modern land use planning nor does it adequately safeguard environmental values.” He continued, “[t]he ECO believes that this system is reactionary and fails to determine upfront where mineral development may be inappropriate… The ECO believes that Ontario’s Mining Act and its assumption of free entry for mineral development impedes comprehensive land use planning.”
The Iskut First Nation have been fighting incursions on their traditional territory by mining companies and coal bed methane development for over four years. In December, they won an interim injunction from the BC courts which upheld their right to keep Shell off their lands. Elder Lillian Moyer is still awaiting a court hearing on a contempt of court charge stemming from a blockade of bcMetals in September 2006.
The Takla Lake First Nation ordered prospectors off their traditional territory in September 2007. In a news release dated September 9, 2007, they stated, “Takla states it has been left with no other options to address the gold-rush that is taking place throughout the Territory and to protect Takla’s rights and Territory.”
Chief Dolly Abraham stated, “This is out of control. B.C. allows on-line staking and hands out permits to anyone who asks. Mining companies are given permits to build roads and drill in sensitive areas of our Territory. Until there is joint planning and meaningful consultation and accommodation, we will be forced to take action to protect ourselves.”
Non-native communities are also in an uproar.
Near Vernon, Rob Westie and his neighbours organized the B.C. Landowner Rights Organization in 2006 to protest free entry and the internet staking system in place in B.C., after their lands were staked by a local prospector. Examples of B.C. properties recently affected by the Mineral Tenure Act’s free entry policy:
In 2003, a company that mines clay for kitty litter entered Kamloops property belonging to the Bepples family to begin mining. The story was front page news locally for weeks.
In 2005, large areas of the Sechelt Peninsula were staked by aggregate miners who wanted to build an enormous gravel pit. Local home owners organized to try to stop the pit.
Also in 2005, a coal mining company staked the Yorston ranch, which had been in the family outside of Quesnel since 1903. The Tyee reported: “The Yorstons have 300 beef cattle, a corn maze for the summer and a picture-perfect garden. The house was built in the 1920s and Lenore’s daughter put a chicken coop out back. The land has been farmed since the 1870s.”
Families living in the Outaouais area of Quebec have organized the West Quebec Coalition Against Uranium Mining (WQCAMU) after their farm, homes and cottages were staked in a uranium rush. A call for submissions on a proposed Quebec Mineral Development Strategy in fall 2007 resulted in stinging commentary about free entry and demands for change from many groups across the province, including CREAT (Conseil Régional en Environnement en Abitibi-Témiscamingue) in Rouyn Noranda, WQ-CAMU and EcoJustice.
The EcoJustice submission stated: “The Mining Act is articulated in an opaque and confusing manner, making it difficult for Québec residents, property owners and municipalities to stay informed of how the law governs their land. Based on our analysis, it is unclear how this statute interacts with other Québec laws. This lack of clarity has resulted in a legitimate concern that the Mining Act prioritizes mining rights over individual and community rights by: 1) superceding the right to privacy afforded by the Civil Code of Québec; 2) contradicting the inviolability of an individual’s home and the right to peaceful enjoyment and free disposition of property as provided for by the Quebec Charter of Human Rights and Freedoms; and 3) circumscribing the power of municipalities to protect the health and welfare of residents in accordance with the Municipal Code of Quebec and the Cities and Towns Act.”
In December, 2007, the Mackenzie Valley Environmental Impact Review Board (MVEIRB) asked the Minister of Indian and Northern Affairs to end free entry on some lands in the NWT.
According to a Canadian Press story of December 17:
“It’s a system that doesn’t fully acknowledge that there are other rights of equal or perhaps greater importance,” said David Livingstone, Indian and Northern Affairs director of renewable resources and environment for the N.W.T., who spoke in favour of such a recommendation at hearings on the project.
It’s almost impossible to establish a protected area or create a land claim on land with pre-existing mineral dispositions on it, Livingstone said. “Once mineral rights are acquired, they tend to set the foundation for the discussion (for the land).
“We’ve reached a point now in the context of aboriginal rights that aboriginal people are in some cases saying ‘Hold it now, we’re not sure we want mining in this area. If you’re acquiring mineral rights, you’re setting off on that path before we’ve had a chance to really discuss the long-term consequences of that.’”
Historically, mineral rights have trumped all other uses, unless surface land is specifically withdrawn from staking, for a park, and urban development or some other special use.
The mineral rights belong to the provincial government in most parts of Canada south of the 60th parallel. In some older parts of Canada, the mineral rights are still attached to the surface lands. However, because mining taxes have to be paid on these rights, over time many of them have reverted to the Crown.
North of 60, most of the mineral rights belong to the federal government. The exceptions occur where the mineral rights were specifically awarded to a territorial or Aboriginal government through a land claims process.
The process for allocating mineral rights is usually enshrined in the provincial Mining Acts, and in the North, the Territorial Lands Act (Canadian Mining Regulations).
A Free Entry Primer
In 2004, West Coast Environmental Law published an excellent primer on the free entry system, available online as “Undermining Our Future: How Mining’s Privileged Access to Land Harms People and the Environment”. There is also a handy 2-page summary: “Mining’s Privileged Access to Land: A Free Entry Backgrounder.”
7. Kenya’s Civil Society & Extractive Industries: Buying into Neoliberalism?
It is astonishing that after over a century of resource extraction on the African continent, accompanied by a bloody colonial history, decades of war in mineral-rich countries like the DRC and the gradual impoverishment of communities living in resource rich areas, civil society in Kenya does not interrogate extraction from a historical and informed perspective.
Civil society organizations are often tasked with the difficult and painstaking work of advocating on behalf of, or in solidarity with, communities engaged in battles with some of the world’s most powerful companies and governments. While many have worked tirelessly, prioritizing the views of the communities they work with, others have found their niche within the now dominant neoliberal economic framework, unable or unwilling to challenge the basic underlying principles of this framework.
In November of last year, civil society organizations hosted a seminar on the extractive industries in Kenya. Titled Kenya’s New Natural Resource Discoveries: Blessing or Curse? and organized with the aim of addressing potential opportunities, challenges, impacts and policy implications of Kenya’s newly discovered resources, including oil, this was a rare opportunity to have an open and informed debate about the implications of mining, oil and resource extraction in the country.
Kenya extracts soda ash, limestone, gold, cement and gemstones but its resources are not exploited on a scale comparable to neighbouring Tanzania, Uganda or the Democratic Republic of Congo. However, the recent discovery of commercially viable oil reserves in Turkana [http://www.businessdailyafrica.com/Kenya-joins-oil-producers-league/-/539546/1933304/-/item/0/-/iwn2qz/-/index.html], the impending arrival of a new port and oil refinery on the island of Lamu, enormous rare earth and titanium deposits found in Kwale [http://allafrica.com/stories/201307222058.html], and discoveries of gold in Narok and Migori [http://www.businessdailyafrica.com/Kenya-eyes-billions-in-gold-revenue-from-Narok-mines/-/539552/1217462/-/cp53xaz/-/index.html] have caught the eye of new investors, hungry to turn a handsome profit from the country’s untapped resources.
One would think that these discoveries would signal alarm for the civil society organizations whose objective is presumably, to advocate for the rights of communities living on or around these deposits of wealth. Combined with a myopic and simplistic vision of development embodied in “Vision 2030” [http://www.vision2030.go.ke/] and promoted by the current conservative government of Uhuru Kenyatta, the future of Kenya’s marginalized communities living in resource rich areas is precarious to say the least.
Perhaps civil society organizations do not understand the urgency of the looming changes that are coming to this country. Aside from Tax Justice Network Africa’s highly relevant analysis on illicit financial flows and transfer pricing during the extractives conference, and a few sensible points and analysis raised by participants from Ghana and other countries, the framework of the conference seemed to pander to the very same neoliberal agenda that has enabled and perpetuated a decades old colonial pillage of resources across the continent.
The conference began, astonishingly, with an introduction by the Kenyan Chamber of Mines, a body formed in the year 2000 whose stated purpose is to ‘represent the interests of Kenya’s miners, exploration companies and mineral traders.’ Its representative mentioned briefly that a company called Aviva Mining, now owned by African Barrick Gold, is embarking on an exploration project along Ndori Greenstone Belt in Western Kenya [http://www.africanbarrickgold.com/exploration-development/kenya/west-kenya-jv.aspx].
Not a single person batted an eye at the mention of African Barrick Gold, a company among the five largest in Africa and majority owned by Canadian mining giant, Barrick Gold. In July of last year, the London legal firm, Leigh Day, announced [http://www.leighday.co.uk/News/2013/July-2013/Tanzanian-villagers-sue-London-based-African-Barri] that it would be suing African Barrick Gold and North Mara Gold Mine Limited, on behalf of villagers from North Mara, Tanzania, for liability in the deaths and injuries of local villagers.
According to Leigh Day, “the claims relate to incidents occurring over the last three years, including one in which five young men were shot and killed on 16 May 2011.” African Barrick Gold earlier came under scrutiny for a toxic chemical spill into River Thigithe in North Mara, which reportedly had serious health impacts on the villagers living in the area [http://www.miningwatch.ca/fr/node/6356]. Clashes between villagers and police at the North Mara gold mine have continued in 2014 [http://allafrica.com/stories/201401210128.html] and, at African Barrick Gold’s Buzwagi Gold Mine, villagers complain that their water sources have been contaminated and their homes destroyed by the mine [http://www.aljazeera.com/indepth/features/2014/01/tanzania-gold-rush-housing-crush-201412011841529140.html].
Despite North Mara’s proximity to Kenya, only a few kilometres from the border, no mention was made of these recent events. Nor was there any mention of the messy and complex history of the titanium project in Kwale district, in Kenya, where a company called Tiomin initially wanted to mine the mineral on land occupied by villagers in Maumba and Nguluku in 2005. At the time, villagers were infuriated at the crumbs offered in compensation for the land they would lose. Now in the hands of a company called Base Resources, the titanium project is scheduled to begin extraction in 2014, [http://www.reuters.com/article/2014/01/01/kenya-baseresources-idUSL6N0KB0YC20140101] ‘after being delayed since 2006 due to financing constraints, environmentalist protests, compensation disputes with local farmers and government red tape.’
In DRC, among the wealthiest countries in the world, a decades-old conflict fueled by reserves of minerals worth $24 trillion dollars [http://www.un.org/apps/news/story.asp?NewsID=39986#.UuT_RPZRW1s] has devastated the country. During a presentation about communities seeking to benefit from a mine operated by Anglogold Ashanti in Mongbwalu, nothing was said of the company’s alleged dubious connections with a rebel group that carried out an attack on Mongbwalu in which hundreds of people were killed between 2002 and 2003 [http://www.hrw.org/sites/default/files/reports/drc0505_0.pdf].
AngloGold Ashanti has also recently come under scrutiny [http://www.aljazeera.com/indepth/features/2013/05/2013515161130258616.html] for allegations that the security officers deployed around its gold mine in Geita, Tanzania, have killed a number of people including a 16 year old boy and villagers scavenging through the company’s mine dumps for remnants of gold. In Colombia, near the la Colosa mine owned by Anglogold Ashanti, two activists were assassinated last year for their alleged opposition to large-scale mining projects in the area [http://nacla.org/blog/2013/11/12/leader-opposed-colombian-mining-project-murdered].
Resistance Here and Elsewhere
Lest we forget out history, it is important to remember that mining and resource extraction were pillars of the colonial enterprise on the African continent. Those who are today celebrated for their role in resisting imperial domination were wholly opposed to the siphoning off of resources to the colonial metropolis: Patrice Lumumba, assassinated in 1961 following his staunch opposition to the Belgian-backed secession of mineral rich Katanga state [http://www.theguardian.com/global-development/poverty-matters/2011/jan/17/patrice-lumumba-50th-anniversary-assassination]; Author, playwright and activist, Ken Saro-Wiwa, executed in 1995 with eight other Ogoni activists by Abacha in Nigeria, for mobilizing against oil giant, Royal Dutch Shell [http://www.theguardian.com/business/2009/may/27/ken-saro-wiwa-shell-oil]; and many other ordinary people who have given their lives to fighting against injustice.
Julius Nyerere, Tanzania’s first president, argued in favour of leaving the country’s resources in the ground until Tanzanians themselves developed the skills to mine them for the benefit of the country.
Elsewhere in the world, individuals, communities and even governments have started taking more concerted action against multinational mining companies whose forays into various countries invariably result in devastating social and environmental consequences. In 2010, the government of Costa Rica denied a subsidiary of Canadian company Infinito Mining a concession to build an open-pit gold mine in a tropical forest. The country is now facing a $1 billion lawsuit for having rejected the company’s plan [http://www.miningwatch.ca/news/canadian-mining-company-infinito-gold-seeks-extort-1-billion-costa-rica].
Last year, Romanian citizens took to the streets in the thousands to protest a controversial mining project by Canadian company Gabriel Resources Ltd. which would have razed mountaintops to extract silver and gold [http://www.aljazeera.com/indepth/features/2013/11/stopping-europe-biggest-gold-mine-20131117102859516331.html]. The country’s parliament finally voted against the project in November.
From Romania to South Africa to Papua New Guinea, and even Turkana, communities are rising up, mobilizing against the layered and varied injustices that accompany large-scale mining practices.
But here in Nairobi, it’s business as usual. A few civil society organizations are advocating to leave the minerals in the ground. Others have mentioned the first and foremost principle of Free, Prior and Informed Consent of communities [http://www.culturalsurvival.org/news/none/oxfam-guide-free-prior-and-informed-consent], and its relevance to those who are willing to fight for their lands, who dare to say no. But there was little to no serious engagement with these questions during the discussion.
Instead, we talked about Corporate Social Responsibility as a progressive solution and the World Bank’s redress mechanisms for human rights abuses. It is a given, without the consent, for instance, of those in Turkana who staged protests against Tullow Oil in 2013 [http://allafrica.com/stories/201310290098.html], that extraction will go ahead. We are not asking “Should we mine or extract? Should communities have to relocate from their ancestral lands for a mining project? Should this be our vision of development? What do those communities say?” We are already asking, “What can we do to make it better? How can we make this new enterprise nice and clean? How can we engage with companies and convince them to be responsible?” Rather than having communities from Kwale, Turkana, North Mara, Geita or the Niger Delta give testimonies about their very real first-hand experiences with large-scale mining and oil companies, we listen to NGO representatives who have flown in from other countries.
It is astonishing that after over a century of resource extraction on the African continent, accompanied by a bloody colonial history, decades of war in mineral-rich countries like the DRC and the gradual impoverishment of communities living in resource rich areas, civil society in Kenya does not interrogate extraction from a historical and informed perspective.
Of course, many have not been at the frontline of resistance. Yet at the very least, the voices of communities who find themselves suddenly sitting on top of a gold mine or an oil well, communities whose livelihoods will be threatened by companies churning out billions of dollars of profit every year, should not be drowned out by a sanitized and watered down perspective that fits within a framework of business as usual.
January 31 2014
© CODESRIA 2014
9. Obama: Into Africa
President Obama is definitely “into” Africa. Unfortunately that has translated into holding the door open for U.S. multinationals to do what outsiders have done for centuries: extract the continent’s wealth.
By John Feffer, August 6, 2014.
President Obama is definitely “into” Africa. As much as possible in a world riven by multiple crises, the president has made the continent a focus of his policymaking. Turning his own Kenyan heritage into a personal bridge to the region, he has visited Africa three times as president – in 2009, 2011, and 2013. He has touted his administration’s multi-billion initiatives such as Power Africa to bring electricity to millions of homes, a fellowship program for young African leaders, and the continuation of efforts to fight HIV-AIDS and other infectious diseases.
At a time when criticism is mounting about the way the president is handling the rest of the world, Africa is shaping up to be Obama’s major play for a legacy.
This week, to better position this effort, Obama welcomed delegations from 51 African countries to Washington for an unprecedented summit. As part of its press blitz, the White House released a fact sheet that detailed all the State Department’s high-profile programs including support for democracy in Nigeria, an expansion of civil society activity in Liberia, and an open government initiative in Sierra Leone. Many of these initiatives are indeed admirable, and I can imagine State Department staffers grumbling that the media focus on Ebola and Boko Haram has left no space for these more upbeat stories.
But don’t be fooled by all the talk of Obama’s special relationship with the continent or all the snazzy new entrepreneurial initiatives or the commitment to democracy reflected in his statement in Ghana a few years ago that “Africa doesn’t need strongmen, it needs strong institutions.” Most of U.S. policy toward Africa, alas, is business as usual. Yes, the President is “into Africa.” But more often that has translated into facilitating the entry of U.S. businesses into Africa so that they can do what outsiders have done for centuries: extract the continent’s wealth.
Strip away all the modern PR and prettified palaver and it’s an ugly scramble for oil, minerals, and markets for U.S. goods. Everyone wants a piece of Africa: drooling outsiders, corrupt insiders, cynical middle men. “We kind of gave Africa to the Europeans first and to the Chinese later, but today it’s wide open for us,” General Electric chief executive Jeffrey Immelt said at the summit, inadvertently providing a compact definition of neo-colonialism. And for all the talk of good governance and transparency, the political status quo of “guided democracy” with a sprinkling of genuine dictators provides the presumed stability and secure access to resources that the U.S. government, the Pentagon’s Africa Command, and businesses like General Electric value.
First, let’s dispense with the nonsense that China is the only country that behaves with no scruples when siphoning everything of value from Africa. The State Department’s Johnnie Carson provided an unvarnished U.S. perspective in a Wikileaks cable: “China is a very aggressive and pernicious economic competitor with no morals.” Well, It’s true that China has developed a reputation for dealing with dictators like Robert Mugabe in Zimbabwe, failing to hire local workers or purchasing local materials, and engaging in horrendous labor rights abuses in the mines it runs.
But China’s relationship is evolving. It is Africa’s leading trade partner, and a million Chinese are living in Africa. “A growing number of Africans say the Chinese create jobs, transfer skills and spend money in local economies,” writes the rarely China-friendly Economist. “African democracy has so far not been damaged. China turns a blind eye to human-rights abuses, but it has not undermined democratic institutions or conventions.”
The United States, meanwhile, presents itself as Africa’s ethical friend. It likes to point to the Dodd-Frank Act to prove that U.S. businesses are scrubbing their supply chains of unethical purchasing. The Act requires companies to disclose their payments to governments and contains specific provisions requiring producers to make sure that they’re not buying “conflict minerals” from armed groups in Congo.
But the first requirement hasn’t been implemented, and the second provision has produced decidedly mixed results. “The first round of conflict mineral investigations was due June 2, but only 6 percent of audited companies satisfied adequate compliance standards,” reports one watchdog organization. “Worst of all, of the nearly 1,000 enterprises that submitted reports pertaining to conflict minerals, 94 percent failed to validate their suppliers’ sourcing tactics.”
Dodd-Frank, in any case, affects only a small fraction of U.S. business dealings with Africa. Let’s look at the larger category of foreign direct investment (FDI). For all the high-minded talk, the United States and China have exactly the same record when it comes to FDI and governance. Both receive a score of -.1 in a Brookings index that puts Japan on top in terms of directing FDI toward more accountable governments (.5) and France at the bottom (-.3) for basically not giving a merde. In other words, both the United States and China basically go where the return on investments is most promising, regardless of political environment.
Then there’s the question of arms sales. No doubt China’s deliveries to Sudan and Zimbabwe are unacceptable, and its sales of small arms definitely fuel conflicts in the region. But according to a Norwegian study of the period 1989 and 2008, the United States provided more military assistance in dollar value to dictators in Africa than China did. In the last few years, the United States has made sales to the following unsavory governments in Africa: Algeria, Cameroon, Chad, Egypt, Equatorial Guinea, Niger, and Nigeria.
Since 2001, writes Nick Turse this week in China, America, and the New Cold War in Africa, “the United States has steadily increased its military footprint, its troop levels, and its missions on the continent — from night raids in Somalia and kidnap operations in Libya to the construction of a string of bases devoted to surveillance activities across the northern tier of Africa.” The State Department alone devoted $15 billion to security operations in Africa from 2005 to 2012, while the Pentagon has lavished a larger but unknown sum on its counter-terrorism operations in Mali, Niger, Nigeria, and elsewhere. The results have been less than inspiring: coups, collapsed states, and burgeoning terrorist organizations. China, meanwhile, has built roads, made friends on all sides of conflicts, and positioned itself for the long game.
The Obama administration wants us to understand that, like China, it is transforming relations with Africa. “We do believe we bring something unique to the table,” national security advisor Ben Rhodes said last week. “We are less focused on resources from Africa and more focused on deepening trade and investment relationships.”
That sounds nice. But it’s not actually true. The leading trade partner for the United States in Africa is Nigeria, and the leading U.S. import is oil. In 2013, the United States imported from Africa $26.3 billion in crude oil, $3.2 billion in precious stones, and nearly $1 billion in ores like titanium. That represents 77 percent of all imports. The remainder is largely raw materials such as cocoa beans, rubber, and unroasted coffee beans.
Of course, trade is a two-way relationship. As the U.S. Trade Representative Michael Froman said at the summit, “The United States has benefitted from AGOA [the Africa Growth and Opportunity Act] as well, not just from the stability that comes with increased global prosperity, but also from the market opportunities that accompany Africa’s rise. Since 2000, U.S. exports to sub-Saharan Africa have increased fourfold, from $6 billion to $24 billion. Last year, these exports helped support nearly 120,000 American jobs.” In an ideal world what’s good for Africa is also good for America. But too often, these economic deals preserve the same old inequitable relationship.
Consider the new agricultural initiatives. At the summit, the United States announced billions of dollars more in agricultural assistance to Africa. Although some of the funds will go to support local farmers growing food for domestic consumption, like sorghum, most of the money comes in the form of pledges by corporations like Coca Cola to source from Africa. Farmers make up two-thirds of the workforce in Africa. The challenge is to make their farming more sustainable. Tying farmers into volatile market relationships with immense multinationals is a spin of the roulette wheel, not a sure way of lifting Africa out of its dependency on the outside world.
Because of its “resource curse,” Africa’s oil and minerals and coffee beans have profited a narrow elite that has served as the middlemen to outsiders. This curse has undermined democracy and embedded corruption into the very circulatory system of the continent. If we were really “into Africa,” we would work to ensure that these resources benefit the largest number of Africans possible.
Some of what the Obama administration has done points in the right direction. But it is overwhelmed by the more powerful plays of the Pentagon and the multinationals. The president should be reining in these powerful players rather than opening the door wider for them to get into Africa. Only if this happens can the resource curse become a resource blessing. It’s the rare country like Norway that has accomplished this feat. But if Obama can help make this happen for Africa, his legacy would indeed be secure.
From the BHRC summary:
GPF, Brot für die Welt and MISEREOR have released a working paper that gives an overview of the debate from the early efforts to formulate the UN Code of Conduct to the current initiative for a binding Treaty on Business and Human Rights. It particularly focuses on the responses by TNCs and their leading interest groups to the various UN initiatives, specifies the key actors and their objectives. In this context it also highlights features of the interplay between business demands and the evolution of the regulatory debates at the UN. This provides an indication of the degree of influence that corporate actors exert and their ability – in cooperation with some powerful UN member states – to prevent international binding rules for TNCs at the UN. The report says: “By giving corporate actors privileged access to decision-makers in the UN, through multi-stakeholder bodies like the Global Compact LEAD or the Global Compact Human Rights Working Group, their viewpoints and interests have become even more prominent in the mainstream discourse – and calls for legally binding instruments for TNCs even more sidelined.”
11. Justin Trudeau
Prime Minister Designate of Canada
October 23, 2015
Dear Mr. Trudeau,
An opportunity for stronger action and renewed leadership to protect human rights at home and abroad
On behalf of the more than 300,000 Canadians who are supporters of Amnesty International we are writing this Open Letter to congratulate you on your election victory this week and to share our initial recommendations for what we hope will be a significantly strengthened approach by your government to respecting and upholding human rights, domestically and globally.
We are heartened by many of the specific commitments you have made and general positions you have offered, both before and during the recent campaign, with respect to numerous pressing human rights challenges. We look forward to engaging with you and your government as you move to implement the legal and policy reforms that are sorely needed to end violations, address longstanding injustices in the country and position Canada for human rights leadership on the world stage.
In recent years Amnesty International has, in our yearly Human Rights Agenda for Canada as well as numerous submissions to various UN human rights bodies and experts, drawn frequent attention to our growing concern that Canada’s record and reputation as a reliable human rights champion has deteriorated sharply.
We have pointed to obstructive and often polarizing positions taken internationally on such human rights concerns as Indigenous peoples, conflict in the Middle East, women’s rights and the death penalty. We have expressed regret that the attention and assistance given to addressing human rights challenges in Africa has diminished considerably and that Canadian foreign policy has become increasingly, often singularly, dominated by trade and economic considerations. We have highlighted troubling domestic developments in such areas as the rights of Indigenous peoples, refugee protection, gender equality, national security, corporate accountability and shrinking space for advocacy and dissent in the country.
We make this approach to you with a sense of urgency and great expectation. We see considerable need but also tremendous opportunity. As such, we urge that from the outset, as you begin to set priorities, develop programs and set the tone for your government, you commit to a number of essential core values and principles aimed at advancing a strong human rights agenda.
– Unwavering respect for the universality of all human rights
– Gender equality leadership in words and action
– A strong commitment to global cooperation and international mechanisms and standards to ensure human rights protection
– Determination consistently to put human rights first in responding constructively to international crises
– Unhindered space for robust advocacy and dissent
– A new collaborative relationship with Indigenous peoples, grounded in full recognition of and respect for their inherent rights
– Active and engaged dialogue with civil society
– Decision-making grounded in fairness, justice and access to information
– Consistency between domestic action and global advocacy
As a clear indication of change and a new approach we urge you to move forward quickly on a number of commitments you have already made and to take other steps that will send an early signal that your government will be adopting a different approach to human rights, in Canada and abroad. Our suggestions involve measures which do not necessitate law reform or require action by Parliament.
We offer the following twelve steps that can be taken immediately, even before the 42nd session of Parliament opens.
– Work with Indigenous peoples to convene an independent public inquiry into the alarming levels of violence faced by Indigenous women and girls in Canada, and do so in a way that lays the ground for development of a comprehensive national action plan to address this shameful national human rights crisis.
– Take a new approach to government dealings with Indigenous peoples – including decisions regarding pipelines, mines, dams and other development projects and levels of funding provided for such essential programs as child protection, safe water, education and adequate housing – by applying the framework of the UN Declaration on the Rights of Indigenous Peoples and upholding crucial rights with respect to meaningful consultation and free, prior and informed consent.
– Take immediate steps to resettle 25,000 Syrian refugees to Canada by the end of 2015 through government sponsorship and chosen on a non-discriminatory basis. Build on that domestic action by actively working for a coordinated, generous and rights-based global response to the Syrian refugee crisis.
– Restore the cuts to the Interim Federal Health Program that provides health care for refugees and refugee claimants, including by withdrawing the current appeal pending before the Federal Court of Appeal.
– Ensure that policies and programs currently underway to promote maternal, newborn and child health and to end early and forced marriage include funding and other support for the full range of sexual and reproductive rights services.
– Draw on your influence and stature as Prime Minister in advocating directly and personally for the rights of Canadians and individuals with close Canadian connections who are experiencing grave human rights violations in other countries including Raif Badawi in Saudi Arabia (whose wife, Ensaf Haidar, you met in January of this year), Huseyin Celil in China, Bashir Makhtal in Ethiopia and Salim Alaradi in the United Arab Emirates.
– Right past wrongs that have been committed in the name of national security, beginning by redressing the serious human rights violations, including torture and ill-treatment, which the Supreme Court of Canada has confirmed in the case of Omar Khadr and a judicial inquiry has catalogued in the cases of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin.
– Launch a process of public consultation with experts to identify reforms needed to ensure that the Anti-Terrorism Act, 2015 is consistent with Canada’s international human rights obligations and that national security agencies are subject to meaningful review and oversight.
– As you assess the recently concluded Trans-Pacific Partnership and formulate Canada’s position on this major new trade deal, take steps recently recommended by UN experts to ensure that the agreement does not negatively impact on the enjoyment of human rights as enshrined in legally binding instruments, or constrain the ability of Canada and other parties to the TPP to meet their human rights obligations. One step in that direction would be to establish an
– Extractives Sector Ombudsperson with the power to investigate and recommend sanctions for companies that fail to respect human rights in their business relationships.
– Announce an early intention to ratify two important UN human rights treaties, the Arms Trade Treaty and the Optional Protocol to the UN Convention against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, and initiate consultations with respect to other UN and regional human rights treaties and Optional Protocols that Canada has not ratified.
– Set clear and concrete human rights goals associated with your participation in upcoming international meetings including the G20 Summit in Turkey, the APEC Summit in the Philippines, the Commonwealth Heads of Government Meeting in Malta and the United Nations Climate Change Conference in France.
– Signal a commitment to convene the first federal, provincial and territorial ministerial meeting to discuss human rights since 1988.
We do, of course, have other concerns which we hope will receive early attention and action once the next session of Parliament is underway.
We will, for instance, be bringing recommendations to your government regarding legislative reform in the areas of corporate accountability, national security and human rights, citizenship laws, refugee protection, the rights of transgender individuals, state immunity and consular assistance.
We also look forward to engaging with you as foreign policy priorities are set, including with respect to countries where economic interests clearly currently take precedence over human rights, and entire regions, particularly in Africa, where human rights concerns receive very little high level political attention.
Mr. Trudeau, Amnesty International believes that regard for human rights should be at the heart of government, any government. Earlier this week the Canadian Human Rights Commission looked forward to an end to the “erosion of human rights” in Canada. That erosion has been all the more lamentable as Canada has very often led the world in human rights, both through measures implemented at home and positions advanced abroad. We look forward to working with you to reverse the erosion and restore the leadership.
We would welcome an opportunity to meet with you at your earliest convenience to discuss an approach to domestic and foreign policy that puts human rights first. Arrangements for a meeting can be made by contacting Alex Neve at 613 744 7667, extension 234 or by email at email@example.com.
Amnesty International Canada
Amnistie internationale Canada francophone