Extractive Industries, Land Rights and Indigenous Peoples in Africa:

International Standards, Best Practices and Opportunities

Dr. Christopher Kidd Consultant Working Group on Indigenous Populations/Communities in Africa No. 31 Bijilo Annex Lay-out, Kombo North District, Western Region, P. O. Box 673, Banjul, The Gambia Tel: (220) 441 05 05 /441 05 06 Fax: (220) 441 05 04 E-mail: au-banjul@africa-union.org; Web www.achpr.org

History
African Commission on Human and Peoples Rights
Established under Article 45 of the African Charter on Human and Peoples Rights in 1981.

Inaugurated on 2 November 1987 in Addis Ababa, Ethiopia.

Secretariat has subsequently been located in Banjul, The Gambia since 1989.

Mandate
Article 45 of the Charter sets out the mandate of the Commission. Promotion of human and peoples rights The Commission carries out sensitisation, public mobilisation and information dissemination through seminars, symposia, conferences and missions. Protection of human and peoples rights The Commission ensures protection of human and peoples rights through its communication procedure, friendly settlement of disputes, state reporting (including consideration of NGOs shadow reports), urgent appeals and other activities of special rapporteurs and working groups and missions. Interpretation of the Charter The Commission is mandated to interpret the provisions of the Charter upon a request by a state party, organs of the AU or individuals.

Composition
Eleven elected commissioners on six-year terms Med Kaggwa currently Commissioner

Additionally Special Mechanisms that investigate and report on specific human rights issues Special Rapporteurs Committees Working Groups Working Group on Indigenous Populations/Communities in Africa Working Group on Extractive Industries, Environment and Human Rights Violations

Study Outline
Extractive Industries, Land Rights and Indigenous Communities/Populations
To examine the impacts of extractive industries on indigenous peoples rights to land and natural resources; To map out the extent to which extractive industries are affecting indigenous peoples in Africa; To evaluate the extent to which States are promoting, protecting and fulfilling indigenous peoples rights to land and natural resources in relation to extractive activities and large scale development projects, including the rights to free, prior and informed consent, in line with their obligations under international and regional instruments; To evaluate the extent to which extractive industries are held accountable for the negative impacts generated by their activities, and adhere to the different international standards; To identify some good practices by States and extractive industries; To make recommendations to State parties, extractive industries, the African Commission on Human and Peoples Rights, indigenous peoples communities, international financial institutions and civil society organizations for the promotion, protection and fulfillment of indigenous peoples rights to land and resources in Africa.

Study Work Plan

Opportunity to provide guidance to the African Commission, state parties, extractive industries, indigenous peoples and civil society. Provide a framework to support engagements between indigenous peoples, extractive industries and state parties.

Desk-based policy review In-country visits to Uganda, Cameroon, and Botswana Uganda: focus on the Karamoja region

Report made public (April 2014) Stakeholder validation conference (June) African Commission ratification (October)

Indigenous Peoples
African Commission on Human and Peoples Rights
a) their culture and way of life differ considerably from the dominant society, to the extent that their culture is under threat of extinction; b) the survival of their particular way of life depends on access to lands and natural resources; c) they suffer from discrimination as they are being regarded as less developed and less advanced than other more dominant sectors of society; d) they often live in inaccessible regions and are often geographically isolated; e) they are subject to domination and exploitation within national political and economic structures. WHY indigenous peoples
IP typically suffer from denial of rights and disregard for their livelihoods Predominantly hunter gatherers and pastoralists

Extractive Industry Models

Indigenous model [Preferred] IP establish and implement their own enterprises to extract and develop natural resources But IP limited in capacity and resources Prevailing model [Undesirable] Extractive Industry, with State backing, controls and profits from the extractive operation Growing move away from this model State, third party led model [Compromise] Identify the conditions for resource extraction on indigenous territories by States or third party business enterprises that are fully respectful of indigenous peoples rights Need for supporting frameworks

Anaya (2013), Report of the Special Rapporteur on the rights of indigenous peoples: Extractive industries and indigenous peoples, UN A/HRC/24/41

Free, Prior, Informed Consent

Free should imply no coercion, intimidation or manipulation;

Prior should imply consent has been sought sufficiently in advance of any authorization or commencement of activities and respect time requirements of indigenous consultation/consensus processes;

Informed should involve consultation and participation by affected indigenous peoples, which includes the full and legally accurate disclosure of information concerning proposed developments in a form that is both accessible and understandable to them

Consent Consultation and participation are crucial components of a consent process. Consultation should be undertaken in good faith. Indigenous peoples should be able to participate through their own freely chosen representatives and customary or other institutions. This process may include the option of withholding consent.

Founding Principle FPIC is dependent on clear recognition and protection of indigenous peoples rights, particularly to lands, territories and resources traditionally owned or otherwise occupied and used

International Standards
United Nations Guiding Principles on Business and Human Rights: Implementing the United Nations Protect, Respect and Remedy Framework (Ruggie Framework) UNDPs Strategy for Supporting Sustainable and Equitable Management of the Extractive Sector for Human Development UN Deceleration on the Rights of Indigenous Peoples International Council on Mining and Metals Good Practice Guide: Indigenous Peoples and Mining Rio Tinto Human Rights Guide (UNDRIP, FPIC)

Opportunities

Opportunity to inform States, extractive industry and indigenous peoples of existing frameworks and best practices. Opportunity for the study and the African Commission to be informed by states, extractive industry and indigenous peoples.

Christopher Kidd drchriskidd@gmail.com