Article from: OGEL 4 (2011), in Editorial
Indigenous People and Resources Development - A Rapidly Changing Legal Landscape
The legal significance of the interaction of resource development and indigenous peoples has increased over recent years. There has been considerable jurisprudence and regulation in the area, both internationally and within many countries, making it timely for an OGEL special issue to examine the contemporary state of the law. We summarise the articles in this special issue at the end of this editorial but first provide a broader overview.
Disputes and conflict over resource use and management, and their relationship with indigenous peoples, occur in many countries. While these disputes and conflicts take widely different forms in countries with different legal systems and in different stages of development, almost every territory on the planet with valuable natural resources has seen displacement or disruption of indigenous peoples. And with increasing market demand, the search for natural resources increasingly impacts indigenous cultures. The problems arise not only in places where minerals are extracted but also where energy developments (e.g., dams and hydro-electric development , forestry management for timber  and also greenhouse gas responses ) impact indigenous lives and land-use. The conflicts have had drastic ramifications not only on the parties directly involved but also at broader societal levels with serious cases involving protests, blockades, incarceration, property damage, kidnapping, riots and loss of life. 
Laws and legal responses to the interaction of resource development and indigenous peoples are nothing new,  but the extent thereof and level of attention thereto has greatly increased. Some of this attention is due, no doubt, to increased awareness and publicity through globalisation and internet use. But there also seems to be something more - something of greater acceptance and responsiveness to the concept of indigenous rights. Over the last decades we have seen increased support from industry for the proposition that, at a minimum, some accommodation needs to be found directly between extractive industries license holders and groups recognized as indigenous in the jurisdictions in which they work. This has been encouraged vigorously by non-governmental organizations (NGO's) and other representatives of indigenous groups. In the absence of a comprehensive legal framework, but understanding the practical need to find a balance between competing interests, various ad hoc approaches have developed. That is the focus of this issue: analysis of trends in such accommodations from a variety of perspectives.
The indigenous-resources interaction is one aspect of the ever-present question in most extractive industries operations: the balancing of broader benefits against local impacts. And the crux is: how is that balance determined and who is involved in the process? Resources development brings benefits both to local indigenous populations and also to the broader society/nation,  but negative impacts from such development are frequently suffered in large part by the local indigenous group. A further complexity is that it is not simply a matter of finding a balance for contemporary interests or proposals for future development. There are often historic actions with significant implications for today, as various cases demonstrate. 'Legacy' issues exist in many countries and mining/petroleum operations are particularly susceptible because of their long life-span. In South Africa in 2003, the Constitutional Court ruled that diamond operations, which had begun in the 1920s and 1930s, were now subject to prior indigenous interests which had been excluded under earlier racially discriminatory laws and practices.
It is not only indigenous groups that have concerns about the impacts of extractive industry operations; others are also responding to these issues. National human rights bodies in various countries have published concerns that the impact of some mining operations on indigenous people breach human rights standards. More s ignificantly for resource companies, the impact of some operations on indigenous people and the environment  have influenced investors to withdraw money from resources projects (including the Norwegian Government pension fund,  Joseph Rowntree Trust, the Church of England and Dutch pension manager PGGM ). It is also claimed that business value is lost where a company gives insufficient attention to environmental, social and governance issues including the impact of operations on indigenous people.
Increasing international attention to indigenous-resources interaction 
There are various UN bodies and mechanisms which address resource-indigenous issues, both at a broad level (e.g., in relation to sustainable development  or racism ) or as part of a focus on indigenous issues. The UN's Permanent Forum on Indigenous Issues is the highest-level indigenous-specific international body involving governments, and in 2009 it held an International Expert Group Meeting on Extractive Industries. The report of that meeting  addresses the role of companies, indigenous organisations, governments and UN agencies; outlining recommendations for each. In 2010 the Permanent Forum invited the world mining industry to propose sites considered good indigenous practice for further study by the Forum.
In addition to the Permanent Forum, indigenous issues are also addressed through other inter-governmental bodies such as the International Labour Organisation and the UN's Human Rights Council, which has two specific mechanisms: the Expert Mechanism on the Rights of Indigenous Peoples  and the Special Rapporteur on the Situation of human rights and fundamental freedoms of indigenous people . The UN's human rights secretariat, the Office of the High Commission for Human Rights, also addresses indigenous-resources issues.
It is useful to review some basic workings of international law relevant to understanding indigenous-resources issues. The usual process of creating human rights standards  involves governments negotiating, through UN bodies, the basic terms which, if agreed, become a declaration adopted by the UN's General Assembly (e.g. the Universal Declaration of Human Rights in 1948 (the "UDHR"), the UN Declaration on the Elimination of All Forms of Racial Discrimination in 1963, and the UN Declaration on the Rights of Indigenous Peoples in 2007 (the "UNDRIP")). At that point, these standards are a resolution of the General Assembly and so have no legally binding status  and while they may have moral force, the generality of their wording alone might keep them from being enforced as law -- it isn't always clear exactly what is required of whom. Normally, however, the UN bodies use a declaration's text as the basis on which to develop a treaty which provides the specific detail that the declaration's text avoided, and is couched in the understanding that it will only bind those countries which subsequently join it (by ratification, accession or succession). Some court decisions have made reference to Indigenous treaties which are not binding on the country,  while other judges indicate there is no significance or role for treaties which the nation has not joined or implemented domestically,  or which have not commenced. Once a treaty becomes operative (e.g. when it receives a minimum number of ratifications) it is binding on those countries which have joined it, and the earlier declaration is usually forgotten. However some declarations maintain a currency. What we have, in the UNDRIP, is the initial declaration and no current proposal to move further.
These various international fora contribute to the development of international standards about indigenous people and resources projects that eventually become enshrined in international law. For example, the fore-runner of the UN Human Rights Council's Expert Mechanism was the body that first negotiated and wrote what became the UNDRIP. The International Labour Organisation drafted the only international treaty on indigenous rights, the 1989 Convention concerning Indigenous and Tribal Peoples in Independent Countries or 'ILO 169' and its forerunner ILO 107. Accordingly, familiarity with the work and output of these bodies can help develop awareness of likely future directions and developments. While some commentary suggests UNDRIP will become customary law, binding on all states,  two key barriers (among others) currently exist. First, it was specifically noted by various countries when UNDRIP was passed that it did not represent customary law. Second, there is a lack of consensus around the meaning of significant phrases in UNDRIP. The governments which initially voted against UNDRIP (Australia, Canada, New Zealand, United States) have removed their oppositional vote, but still emphasise the reasons which informed their original opposition.
There is, nonetheless, growing international support and recognition for indigenous rights, with opposition to UNDRIP being withdrawn,  and increasing numbers of countries joining the ILO's treaty on indigenous rights, ILO 169. Of course, as with all areas, a government's ratification of a treaty doesn't necessarily result in any improvements at the national level,  and indigenous treaties are no different.
Regional human rights bodies are engaging with indigenous-resources issues. In 2010, the African Commission on Human Rights ruled that government approval of a tourism reserve violated indigenous peoples' rights  - the first time the Commission has recognised indigenous peoples rights over traditional land. The inter-American human rights mechanisms, established under the American Convention on Human Rights,  have produced considerable jurisprudence on indigenous and resources issues. Decisions confirming and protecting indigenous rights have been delivered by the Inter-American Court  and Commission on Human Rights.
International funding and development agencies have various policies and approaches to indigenous issues. The World Bank has a policy on indigenous peoples,  and has previously withdrawn from projects/negotiations because of concerns over government policy towards indigenous peoples which contravened the Bank's 'safeguard on indigenous peoples'.  The Asian Development Bank has several operational 'safeguard' policies guiding its involvement in projects, addressing Involuntary Resettlement (1995) and Indigenous Peoples (1998), which were reviewed in 2009.  The European Bank for Reconstruction and Development has a more general social and environmental policy, bolstered by a 2010 guidance note on indigenous people.  The International Finance Corporation's (IFC) ombudsman process is being used by indigenous people to examine the impacts of IFC-funded projects. 
In addition to the universal international standards, there are also regional legal standards being developed on indigenous people and rights across several countries. Examples include the Nordic Saami Convention being negotiated with indigenous people and the governments of Sweden, Finland and Norway , and the proposed American Declaration on the Rights of Indigenous Peoples from the Inter American Commission on Human Rights.
There are also transnational legal aspects, with court cases in countries where resources firms are headquartered prepared to examine the firm's operations in other countries. The United States Court of Appeals recently allowed a case to proceed dealing with the impact of Occidental Petroleum operations on indigenous people in northern Peru. In 1995, an Australian company was found to have breached Australian law in its agreements and negotiations in Papua New Guinea.
There are a range of fora in which the law of indigenous-resources interaction arises within countries. Often the most public face will be in national politics (e.g., Peru has recently seen a divergence between the Parliament and President over legal protection of indigenous interests and its impact on resource development ). Where political dialogue is unable to provide resolutions, there is increasing recourse to courts. This has seen local courts and tribunals either modifying or halting resource development because of impacts on indigenous people (e.g.. in Colombia,  Malaysia,  Philippines,  Australia,  the United States ).
Court decisions are not always able to provide a lasting resolution, with matters sometimes being further agitated after a decision. In India, a 2008 Supreme Court decision which approved a project  was followed by a Government commission which reviewed the proposal and recommended against its development. In 2007, an Australian court decision nullified government approval of open-cut mining operations,  which was overturned by parliamentary legislation less than a week later. 
Some governments have used independent commissions/panels to investigate and report on proposed developments and their impact on indigenous people. This can enable the issue to be addressed with more transparency (e.g., by a public report against specified terms of reference) and principles rather than simply responding to the dominant political force of the time. Recently, in India, this saw the proposed bauxite mine in Orissa being rejected by the Indian Government  after an independently commissioned panel report negatively on its impacts.  The company and the provincial Government are now challenging the central Government's decision. In Canada, the Government established an independent panel to assess a proposed gold-copper mine's effect on Aboriginal rights/rights  and decided not to allow the project to proceed as currently proposed because of its impacts.
Understandably, governments respond to the particular legal framework in which they operate. Thus, in Canada, where there are legal obligations about consultation in relation to impacts on indigenous treaty and aboriginal rights, the Canadian government released a policy framework for consulting with First Nations and Métis communities on decisions or actions that may impact Treaty or Aboriginal rights '. In Australia, where there is a national law requiring notification and an obligation to negotiate in good faith, the government issued implementation guidelines. The Colombian government, after ratifying the ILO treaty on indigenous rights, is 'drafting a bill to facilitate free, prior, and informed consultation of Indigenous and Afro-descendant Peoples'. While examples from other countries are informative, care must be taken to remain aware of differences in approach which reduce the applicability of the precedent elsewhere (e.g., in Canada the government has a duty of consultation which cannot be delegated to a company,  while in Australia the system usually sees the government as a bystander while the company and indigenous group endeavour to reach an agreed outcome ).
Resources companies are seeking recourse in local courts  and international arbitration  to challenge local and national indigenous developments and legal positions. Equally, indigenous groups are using domestic and international law to challenge government and company developments and proposals.
Company and industry initiatives
There have been a variety of multi-stakeholder processes in different extractive resources sectors, which have addressed indigenous-resources interaction. While these multi-stakeholder processes do not directly produce legal results themselves, they are significant in influencing law reform and also identifying non-binding standards with considerable significance for resources companies. Examples of multi-stakeholder processes at the international level include the Mining Minerals and Sustainable Development process in 2001/2,  the World Commission on Dams from 1998-2000,  the Forest Stewardship Council,  and Roundtable on Sustainable Palm Oil  . Some have ongoing processes while others were a 'one-off' review and report, with recommendations being taken up by other bodies. Multi-stakeholder processes have also occurred within countries, like Canada's Whitehorse Mining Initiative  and Australia's Mining Certification Evaluation Project  .
Indigenous issues have also been addressed in industry guides and mechanisms: the International Council on Mining and Metals released a practice guide on indigenous peoples and mining  and industry codes are being used to address indigenous impact.
In recent years, many companies have given greater recognition and rights to indigenous peoples. Rio Tinto is one example, with its 2009 annual report stating that it 'operates in a manner consistent with the UN Declaration on Indigenous Peoples and sovereign obligations. We respect the land connection of indigenous communities and work with them on their land in a spirit of reciprocity, transparency and recognition of their culture'.
For decades, the international legal standards used in framing indigenous rights were the amorphous concepts of self-determination,  the right to development  and effective participation . However there has now been crystallisation of a more definite concept: free, prior, informed consent, or "FPIC". FPIC is essentially the idea that activities (including mining/exploration) which would affect an indigenous group should not occur without the group's consent. A 2005 UN report described elements of FPIC: 
- no coercion, intimidation or manipulation;
- consent being sought before any authorization or commencement of activities;
- information is provided covering the nature, size, pace, reversibility and scope of any proposed project;
- a preliminary assessment of the likely economic, social, cultural and environmental impacts;
- the indigenous group's full and equitable participation (including the participation of indigenous women, as well as participation of children and youth, as appropriate); and
- the process may include the option of withholding consent.
The elements of FPIC are essentially derived from ILO 169 and UNDRIP and focus mainly on the state's obligations (as compared to a company's obligations) in respect of indigenous people. It is becoming common to see FPIC referred to as a basic standard or right and call on governments and companies to establish structures to implement it. Various international jurisprudence refers to FPIC, with decisions that on occasions including statements like "States are not meeting their obligations to obtain FPIC before handing concessions to private parties". FPIC is being referred to in legislation and judicial decisions,  in determining when it is required and how it should operate: "[T]he Inter-American Court's interpretation of when consent processes should occur for development projects - [is] when there is substantial or major impact". 
FPIC has existed for some time in various international structures like the international guidelines on impact assessment,  and in procedures of international financial agencies. It is also used in various multi-stakeholder processes including the World Commission on Dams, the Roundtable on Sustainable Palm Oil, and Forest Stewardship Council.  Some governments are advocating use of FPIC, and this has also been promoted by the European Union.
Various resources companies are committing themselves to gaining consent, as detailed in a comprehensive 2010 report on the area  which summarised the consent policies of De Beers, Rio Tinto, Anglo-American, Repsol, Occidental, Xstrata and ConocoPhillips. The report observed that the specific wording and action of each company varied widely  and that generally mining companies are incorporating FPIC but that is less common with oil/gas operators. Nestle recently adopted guidelines, about sourcing palm oil, which ' specify that the palm oil Nestlé purchases will...[s]upport the free prior and informed consent of indigenous and local communities to activities on their customary lands where plantations are developed'.
There are a range of other FPIC complexities which will no doubt be addressed, if not by practice, then by commentators and courts over the coming years.
- The central question is how to determine whether FPIC occurred before an existing development or initiative is undertaken. And, as FPIC becomes more clear, we are starting to see the development of cases questioning whether existing projects were developed with FPIC.
- The relation between (a) FPIC determined by a group and (b) the rights and situation of any person within that group. And the same dilemma exists at a broader level: what happens where there is a national consultation process with indigenous people that results in a legal structure that not every group has agreed to? Various situations exist in New Zealand and Australia around the difficulty of negotiating at a national or regional level and what that means for individuals/groups at the local level.
- Is it possible for a group to give FPIC in state of poverty and desperation? This is becoming a significant question in the placement of toxic and nuclear waste.
- What should happen in relation to areas where there are indigenous groups who have previously indicated they want no contact with outsiders? Should any activity/contact occur to determine whether FPIC can be reached? In Brazil, protected areas have been made which suspends all activity, while in Peru the government and oil companies propose to continue their activity.
While there is no shortage of bad practice and seemingly intractable problems, there are also examples and structures which provide good bases for progress. We identify some of these below, as well as issues deserving greater attention.
a) Agreement and agreement-making
Agreements and agreement-making merit closer attention. In many places today, resource development on indigenous lands only occurs after agreement (among stakeholders, including the government, corporate developers and the impacted indigenous groups). This is clearly better than historical practices where the development was simply imposed by legislative or executive authority. But the fact of an agreement, without more information, tells us almost nothing about the parties' relationship or obligations. If and when information from an agreement becomes publicly available, any objective assessment of the relevant arrangement should consider information such as: what was the price, what were the terms, was it fair (and who is to say), did a party get a better deal than others have, what were your other options, and so on. Despite the centrality of resource-indigenous agreements, we know little about what goes on and what the deals contain. 
The question of achieving an agreement is one thing, but just as important is the implementation process. The various claims and cases about parties not fulfilling their contractual obligations  suggest more attention is needed to implementation. Similarly, there appears to be limited research regarding whether the process of negotiations does or should provide some benefits to the indigenous group (e.g., through research, capacity building etc) because the outcomes are not certain. This issue requires greater study.
It is difficult to determine, with any objectivity, when arrangements are adequate. Historically, many things have been deemed 'acceptable' and implemented through law that, when viewed in hindsight, are considered egregious by contemporary standards.  Examples abound, such as slavery, segregation, crusades, and eugenics. Where research only examines one side of an issue - e.g., in this context, if only interviewing companies and government; then it is impossible to understand what indigenous people think and would be satisfied with. So we must always remember there are very different perspectives. It is invariably more messy to include these perspectives (e.g., compare land allocation for mining in Australia pre 1992 as opposed to after 1992 when a national indigenous land rights law began) but failure to do so will unlikely result in long term progress. There are critics of multi-stakeholder processes, for example the two year Mining, Minerals and Sustainable Development process being decried for having 'sold out' to the other side. There is perverse reassurance, however, that these criticisms came from both sides - mining industry voices  and NGO groups .
c) Indigenous involvement and participation
There are, of course, different perspectives on the extent and subject matters of indigenous inclusion and much of the argument is not a legal issue. However the policy and political context needs to be understood if one is to have an accurate picture of how a law operates. A complexity with increased indigenous inclusion may be that other communities/groups oppose that occurring. Two implications of this are that: (1) the government may need to do more than simply establish laws and procedures for indigenous inclusion; and (2) there is unlikely to be a universal structure or procedure for how inclusion should be achieved, and instead it will depend on local context.
There are also complexities from the differences between (a) groups that have historical, but not necessarily cultural, connection to land and (b) groups who have a cultural connection to the land. The former groups often enjoy greater legal rights in relation to developments which may impact on the area.  Legal frameworks addressing this issue have different approaches.
- ILO 169 treats these groups as having same rights; and the Inter-American Commission on Human Rights also found in Saramaka that the indigenous rights applied to tribal peoples; and Canadian courts indicate that some first nations' rights also accrue to Metis people.
- In some countries, the domestic law distinguishes between these groups and the rights they hold. For example, the state law in Queensland (Australia) allows indigenous land claims to be made on the basis of 'traditional/customary affiliation', 'historical association' and 'economic and cultural viability', ranked in that order where there are cases with multiple claims of different grounds.
Some commentators advocate that companies apply the same policy to all groups.
It is not simply a difference of theoretical interest. It can cause great difficulty in jurisdictions which have regimes which accommodate different types of connections. For example, in some Australian states there is an aboriginal land rights regime which does not require traditional links to country before a claim can succeed, operating at the same time as a national native title regime which does require traditional connection before a claim can succeed.
d) State or private responsibilities
One of the greatest complexities in this area is how to approach the different roles of the state and private developer. A leading commentator, Professor John Ruggie, has suggested the "protect-respect-remedy" framework for the United Nations' human rights standards,  namely: (1) the state must protect people against human rights abuses by everyone including government and businesses; (2) a business must respect, or avoid harming, people's human rights; and (3) victims should have access to effective remedies, both judicial and non-judicial. It has been suggested by various parties that this framework can assist in indigenous-resources issues. The Ruggie framework has recently been 'fine-tuned' with guidelines giving greater detail on how they can work. This includes, on indigenous issues, specifically that:
- government should p rovide effective guidance to business enterprises (including expected outcomes) on how to respect human rights throughout their operations, 
- business' respect for human rights includes not only the International Bill of Human Rights but also, where circumstances arise, UN instruments on the rights of indigenous peoples ; and
- states should ensure the effectiveness of domestic judicial mechanisms including through particular attention to indigenous peoples who are excluded from the same level of legal protection of their human rights that applies to the wider population.
Overview of OGEL special issue on indigenous people and resources
Much of the above is already covered in a wide range of publications and other available sources, and we have included a bibliography to guide readers of our Special Issue to this material.
Modern natural resource development projects increasingly involve issues related to indigenous peoples' rights. Both international and national legal systems have promulgated considerable jurisprudence and regulation in the area. In keeping with OGEL's mission to provide a dynamic forum for publication, this issue contains articles from authors who have studied and who have practical experience with indigenous rights issues in extractive resource projects across several countries, including projects in Russia, Canada, Australia, Bolivia and Peru (among others).
In addition to geographic diversity, this issue emphasizes analysis of key indigenous rights issues from the viewpoint of a variety of project stakeholders, including indigenous peoples and organizations which represent their interests, international institutions, host governments and extractive resource companies. With respect to indigenous people, the articles detail how indigenous peoples organize themselves, engage in consultation with project developers and host governments, and seek financial and other forms of benefits in exchange for participation in a project. It is the hope of the editors that this issue provides a practical survey of international trends and practices so that such practices can be further studied by academics and practitioners in this area and potentially deployed on future projects.
The following section provides a short introduction to each of the articles in this issue.
- Associate Professor Allan Ingelson's paper "Adequate" Consultation with Aboriginal Stakeholders in Canadian Oil and Gas Development examines two decades of decisions of the Albertan Energy Resources Conservation Board. Professor Ingelson focuses on how these decisions have approached consultation programs delivered by oil and gas project proponents in relation to indigenous residents. The paper provides insight into the elements of consultation practices that can prevent project delays, avoid additional costs associated with delays in project approval, and increase efficiency in the regulation of oil and gas development.
- Dr. Natalia Yakovleva wrote Oil sector developments in Russia and indigenous people. This paper reviews the current provision of state support for protection of indigenous peoples' rights and interests in relation to extractive sector developments in Russia. Using a case study of the Eastern Siberia-Pacific Ocean oil pipeline construction, the paper explores the potential impact of such project on traditional activities of the indigenous communities in the area. The paper investigates the legal provisions for participation of indigenous peoples in decision-making concerning natural resource use on their traditional territories.
- Ramanie Kunanayagam & Kathryn Tomlinson have analyzed agreement-making with indigenous stakeholders across several countries. Their paper, Indigenous Peoples and Extractive Projects: Success Factors in Compensation and Benefit Sharing Agreements, explores different types of compensation and benefit sharing agreements between extractive companies and indigenous groups through three different national and project contexts, Bolivian oil and gas compensation agreements, the Sakhalin oil and gas and indigenous agreement in Russia, and the Argyle mining agreement in Australia. Kunanayagam and Tomlinson explain how successful and effective agreements may provide a private company with a long-term social license to operate and provide affected indigenous groups with long-term sustainable benefits on their own terms. This paper discusses the "success factors" for reaching such agreements.
- Gaston Bilder provides an interesting comparison between Peru and Bolivia in his article Public Consultations of Indigenous Peoples in the Hydrocarbons Industry. The paper describes the regime for the public consultations of indigenous peoples specifically established for the hydrocarbons industry in Bolivia and the regulations existing and proposed in Peru, with the intention of making some suggestions for their possible improvement, based on industry experience.
- The paper Re-conceiving Impact and Benefit Agreements as instruments of Aboriginal community development in northern Ontario, Canada by Peter Siebenmorgen and Dr. Benjamin Bradshaw looks at Impact and Benefit Agreements (IBAs) negotiated between mining firms and Aboriginal communities. The success of some agreements has been limited by the failure of IBAs to identify and thoughtfully address Aboriginal signatories' implicit expectations and interests regarding long-term community development. The article suggests a process for an IBA that is sensitive to the particular socio-economic conditions, cultural interests, and community development expectations of Aboriginal signatories.
- Dr. Bram Noble and Courtney Fidler's paper is Advancing Indigenous Community - Corporate Agreements: Lessons from Practice in the Canadian Mining Sector . This paper notes there has been significant writing about the theory of agreement-making, but less available on the realities, and so examines practical experiences with negotiated agreements and the lessons emerging. The paper examines two Canadian case studies of negotiated agreements. For each case, the authors provide an overview of the mining operation and negotiated agreement. This is followed by a number of lessons and observations based on the experiences of those involved. Although the two cases are very different in nature and scope, the authors identify a number of common lessons that arise from negotiating agreements with a community and the opportunities for improving current practices.
We have also been fortunate to be able to reproduce some material from other sources - previously unpublished, as well as an article from another journal.
- In 2005, Thomas Isaac and Anthony Knox wrote Canadian Aboriginal Law: Creating Certainty in Resource Development. This paper reflects on the jurisprudential and constitutional changes in Canada over the last two decades, as the recognition and definition of indigenous rights entail and their relationship with development proposals. This paper describes the corpus of Canadian law uniquely developed to deal with the fair resolution of issues arising from the conflict between aboriginal and treaty rights and the rights of natural resource developers. It explains the three principal legal developments which are fundamental to introducing certainty into resolution of such conflict, namely: (a) the doctrine of the Crown's duty to consult aboriginal people, (b) the judicial clarification of the related doctrine of the Crown's fiduciary relationship with aboriginal people, and (c) the practice of regulating relations between resource developers and their aboriginal neighbours in contractual documents.
- The 2009 paper Aboriginal Engagement in Resource Development - Industry Leading Practices was written by Intergroup Consultants. The paper represents the culmination of a series of research components intended to lead to an increased understanding of leading practices with respect to Aboriginal engagement in resource development projects across Canada and Alaska. From the beginning, this research was intended to be practice-based. The findings within this document have been drawn from the thoughts and perspectives of individuals engaged in many different facets of resource development and Aboriginal engagement, particularly those with 'hands-on' experience in this subject matter. At the outset, the research process was steered not towards producing a theory-based report derived from academic research and review but rather a document produced by industry and stakeholders to be used by industry and stakeholders.
The final document in this issue is a bibliography of legal and commentary material relevant to indigenous-resources issues. Wherever possible, we have endeavoured to include a URL for any item that is freely available on the internet.
We finish with a comment on Thomas Wälde, OGEL's founding editor and practitioner and academic whose career focussed on the regulation and role of the extractives industry. Thomas was always keen to bring together thinking and people from different perspectives and fields. He urged two of us (Kenneth Culotta and John Southalan) to edit a special issue of OGEL about resources-indigenous issues, notwithstanding that we had never met and had different perspectives on this. We've still never met and still have different perspectives, but hope this issue has done justice to the contributors, the readers, parties involved in indigenous-resources interaction, and to the memory of Thomas Wälde.
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 In-House Counsel, Yamatji Marlpa Aboriginal Corporation; Honorary Lecturer, Centre for Energy, Petroleum and Mineral Law and Policy; Committee member, Australian Lawyers for Human Rights. John gratefully acknowledges comments on the draft editorial by Graeme Neate.
 Partner, King & Spalding LLP.
 Associate, King & Spalding LLP. Angelica Alfaro, an associate at King & Spalding, and Michael Sparks, an associate at Davis Graham & Stubbs LLP, also assisted with editing articles in this special issue.
 Barrionuevo 2010 (describing the Brazilian court decisions on dam building in Para State and its impact on indigenous people); Survival 2010 (tribal peoples and large dams); Finley-Brook & Thomas 2010, ( displacement of indigenous populations for hydro projects in Panama ).
 eg. Salazar 2010a; Santi 2010.
 Marks 2010 (describing concerns about Guyana Government identification of carbon sinks without sufficient attention to the impact on indigenous people of the area).
 See e.g., Burlington Resources v. Ecuador (2010),  (resources company suffering kidnapping, destruction of equipment, death threats); Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation (2008) , ,  & - (indigenous persons jailed for breaching court orders not to impede exploration on their land); IRIN 2010 (indigenous people jailed for traditional use of land); Aljazeera 2010 (blockade of hydroelectric construction).
 The need to integrate indigenous people into decisions about development on traditional lands has been recognised over last 40 years in treaties, declarations, jurisprudence (international and domestic) and state practice: Triggs 2002,, 123.
 See e.g., "Alaska... derives 90% of its revenue from oil and gas. ...[M]any people, including some among the indigenous people, believe Alaska's Arctic Ocean reserves will bring jobs and could help reduce America's dependence on foreign oil. But in [various] Native Alaskan towns, most don't want to risk contaminating the Arctic waters." BBC 2010 ; see also Weber 2010 (indigenous investment in resource development).
 Alexkor Ltd -v- Richtersveld Community (2003).
 See e.g., CHR 2011 (Philippines Commission recommending the government withdraw operating permits from a specified company); AHRC 2002 (Australian Commission's publication of principles developed with indigenous people about resource developments on indigenous land).
 This is not to suggest that indigenous people should be seen as simply part of the environment. Rather, considerable commentary and jurisprudence indicates that environmental impacts are having detrimental effects on indigenous people in that environment.
 See e.g. , NWG Gov 2010 (exclusion of timber and palm oil company from Government Pension Fund Global because of "extensive and repeated breaches of the licence requirements, regulations and other directives governing the company's forest operations in Sarawak, Malaysia and Guyana." The GPFG owned shares worth NOK 8.1 million in the company). More generally, see NWG Gov ud (which relates to environmental divestments for) Actions or omissions that constitute an unacceptable risk of the Fund contributing to: Severe environmental damages: including - Norilsk Nickel (31 October 2009): Barrick Gold Corp (30 November 2008): Rio Tinto Plc. (30 June 2008); Madras Aluminium Company (31 October 2007); Vedanta Resources Plc. (31 October 2007); and Freeport McMoRan Copper & Gold Inc. (31 May 2006).
 Rausing 2010.
 See report in Wheelan 2010 ; see also report on risk in mismanagement of indigenous issues: EIRIS 2007. However these claims are generally based on variance in stock market price, which has its limitations as an accurate measure of a firm's value or expected future. The problem is that stock market prices do not always reflect long-term expected profitability of firms but are influenced by 'whims, fads, fashion and irrational pessimism or exuberance': Singh & o'rs 2005, , 423-426. There is argument that speculation and other influences on the stock market so distort its operation that share value should be little guidance corporate management: Singh & o'rs 2005, , 433; Kay 2003,, 20.
 Although this article focuses on the recent developments on indigenous-resources issues; there are earlier antecedents in this area; see e.g., the 1959 treaty through the International Labour Organisation.
 See e.g., in meetings of the Commission on Sustainable Development, see UN 2011b.
 See e.g., as an issue in the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, see Durban Declaration (2001).
 UN 2009b.
 UN 2010a, " The Permanent Forum recommends that the International Council on Mining and Metals provide a list of at least 10 projects that they recommend as good practices in the involvement of indigenous peoples in mining operations and invite members of the Forum, members of affected indigenous peoples and indigenous experts to visit the project sites for the purpose of reporting back to the Forum at its tenth session. "
subsidiary group established by the Human Rights Council, comprising five
experts, to undertake studies and research-based advice to the Council. More
information available at
 An independent
expert appointed by the Human Rights Council, to investigate and report on
human rights issues of indigenous people. More
information available at
 See e.g. UN 2007b ; UN 2009a.
 For more detail, see ICHRP 2006, partic chs III & V.
 Bleicher 1969, 446. Even the UN Charter does not contain an obligation for UN members to follow a General Assembly resolution - unlike Security Council resolutions which are binding on members: Charter of the United Nations (1945), art 25. Note, however, some declarations may present an expression of international agreement contributing to opinion juris which may support an argument that aspects of the relevant declaration are principles of customary international law, see e.g., Paust 1990, 73.
 eg. 'Australia is not a party to the Convention [ILO 169 on Indigenous Peoples]. But it is an indication of the direction in which international law is proceeding . In the area of human rights particularly, Australian courts should always be prepared to take into account international instruments where they identify precepts of universal application, at least where they are not in conflict with the domestic laws of this country.': Police (SA) v Abdulla (1999),  per Perry J. Even though ILO169 is only formally binding on a couple of countries, it has broader authority: Lehr & Smith 2010, 10.
 eg. There is a 'long settled principle that provisions of an international treaty do not form part of Australian law unless validly incorporated by statute. It has repeatedly been held that the separation of the legislative and executive arms of government necessitates that treaties be implemented domestically under statute. ...The task of ... courts ... is to give effect to the will of ...Parliaments as manifested in legislation. Courts may not flout the will of ...democratic representatives simply because they believe that, all things considered, the legislation would "be better" if it were read to cohere with the mass of (often ambiguous) international obligations and instruments. Consistency with, and subscription to, our international obligations are matters for Parliament and the Executive, who are in a better position to answer to the international community than tenured judges.': WA -v- Ward (2002) ,  &  per Callinan J.
 See e.g. t he treaty regime on racial discrimination (1966), discrimination against women (1979) and treatment of children (1989); which have seen the earlier declarations become forgotten, concerning racial discrimination (1963 Declaration on the Elimination of All Forms of Racial Discrimination), women (1967 Declaration on the Elimination of Discrimination against Women) and children (in the 1924 Geneva Declaration of the Rights of the Child and the 1959 Declaration of the Rights of the Child).
 Davis 2008, 467, and also personal communication to J Southalan by UN official, October 2009.
 UNDRIP (2007).
 ILO 169 (1989).
 ILO 107 (1957). See e.g., art 11 "The right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognised". This treaty is no longer open for ratification but is still in force for a number of countries which have not ratified ILO 169.
 'Over time, it is likely that the Declaration [UNDRIP] will start to "harden," ...[Non-binding standards] become customary international law and thus binding on States. With regard to the Declaration on the Rights of Indigenous Peoples, that process is just beginning': Lehr & Smith 2010 , 11-12. See also Davis, who reviews other writing and observes that some experts 'argue that there is already a distinct body of customary law that accords with the indigenous right to demarcation, ownership, development, control and use of the lands they have traditionally owned or otherwise occupied and used': Davis 2008, 467.
 UN 2007a, 12 (AUS), 13 (CAN) and 15 (NZL).
 See e.g. , '[T]he parties that drafted the Declaration remain deeply divided on the meaning of its language, making it difficult to rely on preparatory papers to divine the meaning of various phrases in the Declaration. ... States and indigenous groups remained divided regarding the meaning of much of the language that is in the Declaration.': Lehr & Smith 2010, 19 ; see also Davis 2008, 464; and the statements by Australian, Canadian and NZ Governments about the uncertainty as to what UNDRIP's provisions on indigenous consent require at a domestic level: UN 2007a, 11 (AUS), 13 (CAN) and 14 (NZI).
 For example:
- Canada's 2010 'support' of UNDRIP states that UNDRIP is 'non-legally binding', 'does not reflect customary international law', and 'does not...change Canadian laws': CAN Gov 2010a . In 2007 Canada raised concerns about UNDRIP's 'provisions dealing with land, territory and resources; free, prior and informed consent when used as a veto...and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties': UN 2007a . 'These concerns remain...[and] Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework': CAN Gov 2010a.
- Australia's 2009 statement on UNDRIP explained that the government has voted against the document in 2007 but now supports it. However the government stated that UNDRIP 'is non-binding and does not affect existing Australian law', and that there is 'continuing international debate about the meaning of 'free, prior and informed consent': Aus Gov 2009.
- The US President's announcement of support for UNDRIP stated that the Declaration is 'not legally binding or a statement of current international law'. The statement also specifically noted how FPIC will be approached: '[T]he United States recognizes the significance of the Declaration's provisions on free, prior and informed consent, which the United States understands to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken': US Gov 2010a.
 "The United States was one of only four States that voted against the Declaration upon its adoption. The others, Australia, Canada and New Zealand, each reversed their positions and endorsed the Declaration through formal pronouncements since the General Assembly vote. The United States now joins these other countries in making opposition to the Declaration a thing of the past.': UN 2010c. This was in response to President Obama's statement the day before: 'in April, we announced that we were reviewing our position on the U.N. Declaration on the Rights of Indigenous Peoples. And today I can announce that the United States is lending its support to this declaration.": US Gov 2010b.
 Twenty two countries have ratified ILO 169, with 35% of these having done so since 2002: ILOLEX 2011.
 See e.g., Hathaway 2002,; Goodman & Jinks 2003 ; Neumayer 2005,.
 Santi 2010 (concerns about " forcing the [Ecuadorian] government to respect the international agreements it has signed, such as those with the International Labour Organization (ILO) on indigenous rights, declarations from the United Nations, the Inter-American Convention on Indigenous Rights").
 Endorois Council -v- Kenya (2010).
 ESCR Net 2010.
 Am Cnvtn HR (1969)
 See e.g., Awas Tingni -v- Nicaragua (2001) (the American Convention's property rights protected indigenous traditional rights to land and limited the government's ability and procedures to grant concessions to third parties); Saramaka People -v- Suriname (2007) (large scale development or investment which will impact cultural territory of indigenous/tribal peoples, should only occur with their free, prior and informed consent); Yakye Axa v Paraguay (2005) (a government must adopt adequate measures to ensure that indigenous communities has effective use and enjoyment of their traditional land).
 See e.g., Maya People -v- GTM (2010) (government directed to suspend mining on a project alleged to have commenced without the free, prior, informed consent of the effected indigenous community); Yanomami -v- Brazil (1985) (the impacts on an indigenous group from mining and road construction was a breach of the state's obligations to protect indigenous human rights); IACHR 2010 ( IACHR application questioning Ecuadorian Government allowing 'an oil company to carry out activities on [an indigenous] community's ancestral territory without prior consultation, placing the population at risk... The case also refers to the denial of judicial protection and due process to the Kichwa people of Sarayaku).
 World Bank 2005.
 FPP 2010.
 Safeguard Policy Statement.
 EBRD 2010.
 Henao 2010b ( Peruvian indigenous group filed a complaint with the ombudsman of the World Bank's International Finance Corp (IFC) against an oil company, accusing it of polluting the group's ancestral land and rivers in the Amazon. )
 Swedish Government representative in UN 2010b.
 Proposed ADRIP (1997)
 ERI 2010.
 Dagi -v- BHP (1995) - this decision was overturned on other issues on appeal but the contempt finding (i.e., the Australian company has illegally interfered with Australian court proceedings through its activities in Papua New Guinea) was not changed: BHP -v- Dagi (1995) at 120-121.
 Carroll 2010: "In May, [Peru's] congress passed a bill codifying parts of the UN convention on indigenous peoples in an attempt to calm tension after clashes between indigenous groups and security forces last year which left more than 30 dead. [President] Garcia...said the legislation would damage the economy and refused to sign it. He sent it back to congress earlier this week on the eve of a recess, meaning it will be months before it can be revived. The president said the bill would slow down Peru's development of minerals and hydrocarbons. 'The law approved by congress goes beyond the UN convention because it doesn't just include tribal communities in the Amazon but also peasant communities,' he said. 'So if you want to build a road or gas pipeline and the locals say 'no', then there is no road or electricity.' "). For further detail on the proposed law, see Salazar 2010a.
 LAHT 2010.
 SustainableBusiness.com 2010.
 Oceanagold Inc -v- Judge Panay (2010), affirmed in Oceanagold Inc -v- Judge Panay (2010). For more information about case, see LRC-KsK 2010.
 Holocene P/L -v- Martu People (2009). For more information about the case, see Southalan 2009,.
 South Fork Band v. Dept Interior (2009) ; for more recent details on the case, see Schneider 2010
 TN Godavarman v. India (Sterlite Industries) (2008) ; see further description in Chauhan 2010.
 Saxena & o'rs 2010.
 Lansen v NT Minister for Mines (AUS) (2007).
 ABC 2007.
 Ind Gov 2010.
 Saxena & o'rs 2010.
 Mishra 2011.
 CAN Gov 2010b.
 CAN Gov 2010c.
 See e.g., SK Gov 2010.
 See e.g., WA Gov 2008.
 NSI 2010.
 eg. Can Gov 2011; Beckman v. Little Salmon/Carmacks First Nation (2010), .
 eg. Aus Gov 2007; Griffin Coal v Nyungar People (2005), .
 Mishra 2011.
 See e.g., Burlington Resources v. Ecuador (2010) , - &  (company claims that government failed to provide sufficient protection for operations against indigenous protest); Glamis Gold -v- USA (2009), , ,  &  (company claims that government initiatives for protection of environment and indigenous values was in breach of international investment treaty).
 MMSD 2002, with a specific section on indigenous issues at 152-158. For a comprehensive review of the MMSD process, see Danielson & Digby 2006.
 WCD 2000, with a specific section on indigenous issues at 110-112. For a review of the WCD process after 10 years, see Moore & o'rs 2010,.
 FSC 1996.
 RSPO 2007.
 WMI 1994 and WMI 1994.
 Solomon & o'rs 2006.
 ICMM 2010.
 See e.g., BMF 2010 (supermarket chain lodging complaint against one its suppliers, under the provisions of the Roundtable on Sustainable Palm Oil, about the supplier's impacts on indigenous people).
 Rio Tinto 2009 , 26.
 See e.g., Roy 2001 ; Oguamanam 2004, 204.
 See e.g., Tarantola & o'rs 2008 , 5; Worth 2007, 326; Gibbs 2005,.
 Gen Comm 23 (1994) at  (indigenous communities must have effective participation in decisions that affect the community; especially where culture manifests in a particular way of life assoc with use of land resources); Gen Rec 23 (1997) at [4(d)] (indigenous peoples must have equal rights of effective participation in public life, and no decisions 'directly relating to their rights and interests' should be taken without their informed consent); Gen Rec 23 (1997) at  (where indigenous peoples have been deprived, without free and informed consent, of lands/territories that they owned/inhabited/used, the State must either return land or provide compo/restitution); Ominayak -v- CAN (1990) at  (a development which threatens way of life & culture of an indigenous group breaches the right to enjoy culture under art 27 of the ICCPR).
 Arguably, FPIC also represents a conceptual shift away from earlier standards (self-determination, right to development) which presumed a desire for all to achieve autonomous industrial development.
 UN 2005, 12; a shorter summary of FPIC is provided in ATSISJC 2005 ,187-188.
 Lehr & Smith 2010 , 5 & 9.
 See e.g., APA 2010 ; Griffiths 2010 ; Colchester 2010 ; Koia v Waitangi Tribunal & Attorney General (2011),  (raised before Tribunal, as a ground contesting Government proposed land settlement with indigenous people).
 The Inter-American Court of Human Rights has ruled several times in the past decade (p12) and U.N. Treaty Bodies also have called on States to respect the rights of indigenous peoples to FPIC and to provide for restitution of property taken without consent (p13): Lehr & Smith 2010, 12-13
 See e.g., Bropho v Western Australia (2007), - (judge ruling that, given a group expressly consented to a document and had not alleged " duress or fraud or non est factum", then the consent was effective to bind the group).
 Lehr & Smith 2010, 54.
 Akwé: Kon Guidelines (2004), although these guidelines are voluntary they indicate that governments and companies should establish "a process whereby local and indigenous communities may have the option to accept or oppose a proposed development that may impact on their community.": Lehr & Smith 2010, 14.
 IADB requires FPIC for resettlement, for any funding; 15; EBRD requires "[t]he project proponent must obtain and document consent for activities that are on traditionally used land that would affect the livelihoods, or cultural, ceremonial, or spiritual uses...; would lead to their relocation; or would affect their cultural resources"; 16; IFI's can also put consent requirements into their financial conditions, which make it binding on the particular operation; 14.
 World Commission on Dams, reporting in 2000, stated 'Where projects affect indigenous and tribal peoples, such processes are guided by their FPIC.' [ch 8];  the RSPO [Roundtable on Sustainable Palm Oil, whose]...members are supposed to implement the principles of FPIC...[and] be audited to demonstrate that they received consent from communities -- not only indigenous peoples -- where they operate. The RSPO provides ...evidentiary criteria as part of its certification... is an early attempt to define what consent looks like in practice for a particular industry' (pp16-17);  The FSC [Forest Stewardship Council] also, in slightly less explicit language, requires that member companies show that their wood was obtained with the FPIC of local communities: Lehr & Smith 2010, 16-18
 UN 2010b: Deputy Head of Delegation of the European Union, said "...the effective participation of indigenous peoples in projects relating to their development needs must be based on their free, prior and informed consent."
 Lehr & Smith 2010.
 Lehr & Smith 2010, 51-53.
 FPIC has largely been ignored in many company policies: 'very few companies have policies that incorporate consent, but they will come under increasing pressure to adopt them in the coming years' Lehr & Smith 2010, 50.
 Lehr & Smith 2010 , 5.
 Nestlé 2010 . Like many developments in relation to indigenous-resources issues, this only occurred after a protest against the company's practices, see Lee 2010. A 2009 EIRIS survey noted fewer than 20% of companies have adopted a policy supporting free prior informed consultation for indigenous peoples. See EIRIS 2009, 1.
 Lehr & Smith 2010, 12.
 Andriyanto 2010 ("Papua's Amungme tribe on Monday lodged a new class-action lawsuit against US mining giant Freeport-McMoRan seeking $32.5 billion in material and non-material damages for the alleged illegal acquisition of its ancestral land. The action [is] filed at the South Jakarta District Court...").
 eg. NZ Māori Council -v- Att-Gen (NZL) (2007), -,  & ; Linda Champion (Central West Goldfields People) v Vosperton Resources (2005), -, , , , -, .
 Tauli-Corpuz 2010.
 See, eg, Salazar 2010b; Henao 2010a.
 Ritter 2009, 6.
 See e.g., IRIN 2010 (allegation that a palm oil plantation operator, had broken a profit-sharing agreement signed with the communities in 1997); Minara Resources -v- Ashwin (2007) (court proceedings over company's non-fulfillment of an agreement promising benefits in return for permission to mine).
 O'Faircheallaigh 2004, 307.
 '[I]ndividuals and communities that are favoured in their economic, social and political condition attribute social virtue and political durability to that which they themselves enjoy...even in the face of commanding evidence to the contrary. The beliefs of the fortunate...serve the cause of continuing contentment, and the economic and political ideas of the time are similarly accommodated. There is an eager political market for that which pleases and reassures': Galbraith 1992, 2.
 A report of the situation in Australia following the MMSD process explained that 'rather than building on these considerable accomplishments, key supporters of [organisation which project managed MMSD] decided, for reasons that have never been clear, to withdraw their support from the organization, which then went out of existence. The decision lacked the ideal level of transparency and made it clear that some in the Australian mining industry were simply unable to accept any information that did not ﬁt their rather rigid views': Danielson 2006 , 18; see also report of criticism by mining industry in Nostromo Research 2002 .
 See e.g., Nostromo Research 2002 ; Whitmore 2006, 310.
 See e.g., AI 2010 (describing attacks and threats on indigenous activities for criticising mining affecting their communities).
 Edelman 2009 , 4-9.
 Lehr & Smith 2010, 27-28.
 See Ab Land Act (AUS) , s46 and TSI Land Act (AUS) , s43. Thanks to Graeme Neate for explaining this point.
 Lehr & Smith 2010 , 28.
 UN 2009d.
 UN 2009c, 3 ( 'The Permanent Forum supports the conceptual and policy framework proposed by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises.'; see also Tauli-Corpuz 2010.
 UN 2011a.
 UN 2011a, 8.
 UN 2011a, 14.
 UN 2011a, 23.