BITS AND TRIBAL

BITS AND TRIBAL

This seems to be the first BITS case India is facing over Indigenous Peoples' Rights (using the internationally recognised term, in India the reference is different) and natural resources. Globally more than 50% of such cases are in natural resources. And India-UAE is the most recent BIT, already being used to sue the Indian govt!! 

The UN Special Rapporteur on Indigenous Peoples Rights has been looking into the issue of IIAs and has submitted a few reports to the UN General Assembly.

 UNDRIP is a declaration, not a convention so is weaker but the ILO Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 1957 could be perhaps made use of? India has not ratified the newer version (?) 

We really need to get onto this issue and examine how to help state govts that are trying to protect indigenous peoples rights from MNCs and investment agreement. In the cases outlined below, there are many where states are fighting on behalf of indigenous peoples rights. Case 4 is interesting, where Indigenous peoples groups wanted to join as amicus curiae, made some progress but were finally denied. But that is an option to explore in India, as they can't be direct party. 

Some of the other cases involving Indigenous Peoples Rights: 

(Difficult to find sometimes as govts often use environmental protection argument which is often covered as exception in BITs/IIAs, and not indigenous rights which may not be specifically mentioned in the BITs/IIAs. )

1. Indigenous land:Álvarez and others v. Panama (2015) using Netherlands - Panama BIT (2000) and Central America-Panama FTA.

“Claims arising out of decisions by the Panamanian National Authority of Lands Administration (ANATI) allegedly contradicting prior authorizations and judicial decisions centering on whether the claimants’ investment is located within the indigenous protected area of Ngäbe-Buglé”.

Claim amount: NA. Decision Pending.

2. South American Silver v. Bolivia (2013) using Switzerland - Zimbabwe BIT (1996)

Claims arising out of the Government's issuance of a decree that revoked mining concessions that had been previously granted to claimant's subsidiary concerning the Malku Khota project.

Bolivian Govt. Argued: Actions by SAS led to violent protests by Indigenous communities led govt to revoke license. Argument that Applicable International and Bolivian law instruments require the Protection of Indigenous Communities…

Claim is for 385.7 mln USD. Decision Pending

3. Burlington vs. Ecuador (2008) using the Ecuador-USA BIT (1993)

The claimant could not carry out its planned operations due to violent local opposition to its expropriation and exploration activities. It is suing Ecuador, alleging among other things a failure by the government to protect its operations from local indigenous opposition. The claimant also objects to the government’s measures to increase public participation levels under production sharing contracts.

The case raises major issues about social and environmental consequences of large-scale resource exploitation. It appears to reveal tensions between government duties to protect human and indigenous rights, on the one hand, and obligations to protect foreign investors, on the other. 

Claim: Not known. Decision pending.

(Similar protests in Chevron-Ecuador (I & II) cases)

4. Border Timbers vs. Zimbabwe and Von Pezold and Others vs. Zimbabwe using  Switzerland-Zimbabwe BIT (1996) and Germany-Zimbabwe BIT (1995)

Claims arising out of the Government's compulsory acquisition of claimants' farms and forestry plantations following Zimbabwe's 2000 land reform

On 23 May 2012, the European Center for Constitutional and Human Rights (“ECCHR”) and four indigenous communities of Zimbabwe (the “indigenous communities”) (together, the “Petitioners”) filed a Petition for leave to make submissions as amicus curiae in these conjoined arbitral proceedings.

The indigenous communities cite distinct cultural identity and social history which is inextricably linked to their ancestral lands. They can be impacted by; 

“the determination of rights and access to land inhabited by indigenous communities, which may impede their enjoyment of their internationally recognized rights to land and to consultation in relation to their ancestral lands; and the prejudicing of the particular rights of indigenous peoples under international law to be able to access judicial remedies for human rights violations, because the indigenous communities affected in this arbitration, as non-disputing parties, are not able to participate in or contest the decisions of this Tribunal as of right.”

Application denied 26th June 2012.

************