Protecting the rights of tribals
Even as bilateral investment treaties are strengthened, domestic legislation must be implemented
Recently, Ras Al Khaimah Investment Authority (RAKIA), an Emirati
investor, initiated an investment treaty arbitration (ITA) claim against
India under the India-UAE Bilateral Investment Treaty (BIT), seeking
compensation of $44.71 million. This claim arose after a memorandum of
understanding (MoU) between Andhra Pradesh and RAKIA to supply bauxite
to Anrak Aluminum Limited, in which RAKIA has 13% shareholding, was
cancelled, allegedly due to the concerns of the tribal population in
those areas.
Similarly, in 2014, Bear Creek Mining Corporation
initiated an ITA against Peru under the investment chapter of the
Canada-Peru Free Trade Agreement, claiming violation of the investment
obligations due to the withdrawal of mining concessions, allegedly as a
result of the protests by indigenous peoples. These cases present an
opportunity to evaluate the impact of the obligations of the host states
under BITs on the rights of the tribal people.
Protection under law
The
United Nations Declaration on the Rights of Indigenous People (UNDRIP),
adopted in 2007, for which India voted, recognises among other things
indigenous peoples’ rights to self-determination, autonomy or
self-governance, and their right against forcible displacement and
relocation from their lands or territories without free, prior and
informed consent. In addition to the UNDRIP, there is the International
Labour Organisation (ILO) Convention concerning Indigenous and Tribal
Peoples, 1989 which is based on the “respect for the cultures and ways
of life of indigenous peoples” and recognises their “right to land and
natural resources and to define their own priorities for development.”
India is not a party to this, but it is a party to the ILO Convention
concerning the Protection and Integration of Indigenous and Other Tribal
and Semi-Tribal Populations in Independent Countries, 1957 which is
outdated and closed for ratification.
At the domestic level, the
Constitution provides autonomy to tribal areas in matters of governance
under the Fifth and Sixth Schedules, which is further fortified by the
Samatha
v. State of Andhra Pradesh & Ors
(1997) judgment where the Supreme Court declared that the transfer of
tribal land to private parties for mining was null and void under the
Fifth Schedule. The framework for protection of the rights of tribal and
indigenous people is further strengthened by the Recognition of Forest
Rights Act, 2006 which protects the individual and community rights of
tribal people in forest areas and their right to free and prior informed
consent in event of their displacement and resettlement.
Investment promotion
While
the legislation for the protection of the rights of tribal people are
in place, they are regularly flouted as has been highlighted by the Xaxa
Committee report of 2014. Instead of ensuring that tribals are not
ousted from the land to which they are historically and culturally
connected, the state becomes more concerned about fulfilling contractual
obligations towards the private investor. This means that
constitutional and legal principles are discarded. This is evidenced by
the increasing number of MoUs being signed by natural resources-endowed
states with investors for facilitation of developmental projects. For
instance, Chhattisgarh and Jharkhand have reportedly entered into 121
and 74 such MoUs, respectively, with various private players as of 2014.
All this materially alters the role of the state vis-à-vis the tribal
people as the state prefers economic expediency at the cost of the
rights of tribal people.
For
economic development, states invite investments not only from domestic
investors but also from foreign players whose interests are not only
protected under domestic laws but also under the BITs. The purpose of
BITs is to give protection to foreign investors while imposing certain
obligations on the host state. For instance, if a development project
involving a foreign investor in tribal areas leading to acquisition of
tribal land is met with protest, there may be two possible scenarios.
One, the State government due to socio-legal and political pressures may
yield to the demand of the tribal people to the detriment of the
foreign investor, which is what has happened in the case of RAKIA. Two,
assuming that the government continues with the project, the judiciary
may order the cancellation of permits given to the foreign investor,
which is what happened in the case of Vedanta in 2013 (
Orrisa Mining Corporation Ltd v. MoEF and Ors
). In both cases, foreign investors may drag India to ITA claiming
violation of obligations under the BIT, such as fair and equitable
treatment or indirect expropriation. This perceived threat of ITA
against the state may compel the latter to refrain from implementing
tribal rights in the development project area.
Conflicting interests
A
recent report of the UN Special Rapporteur on the Rights of Indigenous
Peoples recognises three main reasons for the serious impact that
foreign investments have on the rights of indigenous people: failure to
adequately address human rights issues of tribal people in BITs; the
perceived threat of ITA for enforcement of investor protection; and
exclusion of indigenous people from the policymaking process.
What
then are the possible options available to India to tackle these
issues? First, none of the 80-plus BITs signed by India contains even a
single provision on the rights of tribals. Even the 2015 model Indian
BIT does not contain any such provision. Thus, to avoid ITA cases by
foreign investors, the government’s approach should be to include
provisions relating to the protection of indigenous people in BITs.
There are many examples from around the world: Canada, in many of its
BITs, has several exceptions to protect the rights of indigenous people.
The Trans-Pacific Partnership agreement also incorporates the rights of
the Maoris from New Zealand. Since India is going to renegotiate its
existing BITs, it should create a special exception for taking
regulatory measures for protecting the rights of tribal people, in which
case it should have a textual basis in the BITs to derogate from
investment protection obligations under BITs.
Second,
the strengthening of BITs must go hand in hand with the implementation
of domestic legislations for the protection of the rights of tribals,
where the state does not consider tribals as impediments in the
development process. Third, as far as possible, tribal people should be
given representation even in investment policymaking.
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