Published online by Cambridge University Press: 20 January 2017
The extractive industry has contributed to the development of international law since colonial times. Contracts between states and extractive companies largely drive this global industry. This essay situates extractive industry contracts involving Indigenous peoples, long term actors who have significantly informed the development of international law, within the context of international law. While these contracts are usually analyzed from domestic perspectives, they are impacted by international norms and, as developing transnational practices, even have the potential to show ways ahead in international law. As regards engagement with Indigenous peoples, contracts, which are typically regarded as private instruments, have significant public ramifications. This is especially the case where states, Indigenous peoples, and transnational corporations (TNCs) are involved and where internationally recognized principles relating to Indigenous rights, notably free, prior, and informed consent (FPIC) are implicated.
1 Webber, Jeremy, The Meanings of Consent, in Between Consenting Peoples: Political Community and the Meaning of Consent 3, 5 (Webber, Jeremy & Macleod, Colin M. eds., 2010)Google Scholar.
2 See Cathal M. Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: the Transformative Role of Free Prior and Informed Consent 161-168 (2015).
3 James Anaya (Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People), Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development, UN Doc. A/HRC/12/34 (July 15, 2009).
4 See International Finance Corporation, Guidance Notes: Performance Standards on Environmental and Social Sustainability, Guid ance Note 7, Indigenous Peoples, para Gn38 (2012); Baker, Shalanda, Why the Ifc’s Free, Prior and Informed Consent Policy does not Matter (Yet) to Indigenous Communities Affected by Development Projects, 30 Wis. Int’l L.J. 668, 671, 695-703 (2013)Google Scholar.
5 International Finance Corporation, supra note 4.
6 Szablowski, David, Operationalizing Free, Prior, and Informed Consent in the Extractive Industry Sector?: Examining the Challenges of a Negotiated Model of Justice, 30 Can. J. Dev. Stud. 111, 112 (2010)Google Scholar.
7 See, e.g., Declaration on the Rights of Indigenous Peoples, GA Res. 61/295 art. 32(2) (Sept. 13, 2007). See also, International Labor Organization Indigenous and Tribal Peoples Convention arts. 6, 15, 16, June 27, 1989, 28 ILM 1282.
8 See, e.g., Declaration on the Rights of Indigenous Peoples, GA Res. 61/295 prmbl., art. 37 (Sept. 13, 2007).
9 Antony Anghie, Imperialism, Sovereignty and the Making of International Law 15 (2005).
10 James Anaya (Special Rapporteur on the Rights of Indigenous Peoples), Extractive Industries and Indigenous Peoples, para. 61, UN Doc. A/HRC/24/41 (July 1, 2013).
11 Szablowski, supra note 6, at 117.
12 Viviane Weitzner, “Dealing Full Force”: Lutsel K’E Dene First Nation’S Experience Negotiating With Mining Companies 30 (2006).
16 Id. at 228.
17 O’Faircheallaigh, Ciaran, Aboriginal-Mining Company Contractual Agreements in Australia and Canada: Implications for Political Autonomy and Community Development, 30 Can. J. Dev. Stud. 69, 75 (2010)Google Scholar.
18 CDAs are known by different terms around the world—in Canada they are mostly referred to as Impact and Benefit Agreements. Odumosu-Ayanu, Ibironke T., Governments, Investors and Local Communities: Analysis of a Multi-Actor Investment Contract Framework, 15 Melbourne J. Int’l L. 473 (2014)Google Scholar [hereinafter Odumosu-Ayanu, Governments, Investors and Local Communities]; Odumosu-Ayanu, Ibironke T., Foreign Direct Investment Catalysts in West Africa: Interactions with Local Content Laws and Industry-Community Agreements, 35 N.C. Cent. L. Rev. 65, 80-87 (2013)Google Scholar. For different terminologies for IBAS in Canada, see Keeping, Janet, Thinking about Benefits Agreements: An Analytical Framework, Northern Minerals Program Working Paper No. 4, 2-5 (1998)Google Scholar.
20 Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada section 26, May 25, 1993.
21 Odumosu-Ayanu, Governments, Investors and Local Communities, supra note 18, at 488-491.
22 On the duty to consult, see Dwight G. Newman, Revisiting the Duty to Consult Aboriginal Peoples (2014).
23 For contents of Ibas, see Odumosu-Ayanu, Governments, Investors and Local Communities, supra note 18, at 489.
24 See Gathii & Odumosu-Ayanu, supra note 13.
25 Collaboration Agreement between the Northern Village of Pinehouse and Kineepik Metis Local Inc. and Cameco Corporation and Areva Resources Canada Inc., December 12, 2012. See also, Draft Raglan Agreement entered into between Makivik Corporation, Qarqalik Landholding Corporation of Salluit, Northern Village Corporation of Salluit, Nunatulik Landholding Corporation of Kangiqsujuaq, Northern Village Corporation of Kangiqsujuaq and Societe Miniere Raglan du Quebec Ltee (to which intervened Fal- conbridge Limited) sections 2.1.6, 7.1(c), Jan. 25, 1995.
26 Szablowski, supra note 6, at 117.
27 See ANTS, Jabiluka Long-Term Care and Maintenance Agreement; Australian Government, Department of Environment, Uranium Mining in the Alligator Rivers Region; Energy Resources of Australia, Business Overview.
28 Case of the Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172, para. 133 (Nov. 28, 2007).
29 Id. at para. 134 (emphasis added).
30 Webber, supra note 1, at 34.