President Obama stated yesterday that the US now “supports” the United Declaration on the Rights of Indigenous Peoples. US support is no trivial change in policy, since the US was the last of the original four countries to not endorse it when the UN General Assembly passed the Declaration in September 2007.
But when you read the fine print, that support has some important caveats. So what does it mean for Indigenous communities affected by mining?
What US support for the Declaration should mean is that the US should ensure that its policies, and the implementation of its policies, conform with all the stipulations in the Declaration. Consequently, companies should not be able to impose mining projects on Indigenous communities that do not want them. This should apply to any mining operations over which the US has jurisdiction — mining activities in the US, and companies based in the US or listed on the stock exchange in the US.
Concretely, this should mean several changes, including that:
- mining projects cannot be imposed on Indigenous communities; free, prior, and informed consent is required
- mining projects cannot relocate Indigenous communities without their free, prior, and informed consent
- mining projects cannot store or dispose of hazardous materials on Indigenous Peoples’ lands without their consent
- companies must respect Indigenous Peoples’ rights to protect their cultural and spiritual sites
- companies must respect Indigenous Peoples’ right to protection of the environment
This should mean, for example, that Barrick Gold and other mining companies should not be imposing mining on the Western Shoshone on their lands in Nevada. It should mean that Barrick should be fully respecting Mount Tenabo as a sacred site. It should also mean that Anglo American and Northern Dynasty should not be seeking to impose the Pebble mine on the communities of Bristol Bay.
It remains to be seen what this will really mean, and what changes this will really bring.
Obama used the word “support” instead of “endorse,” and the formal statement that the State Department issued claims that the Declaration does not represent “a statement of current international law.” This is similar to the weak Canadian statement that the Declaration is a “non-legally binding document that does not reflect customary international law nor change Canadian laws.”
The US statement also leaves ambiguity on recognition of rights over land and resources and attacks a key provision of the Declaration, that of free, prior, and informed consent:
“In this regard, the 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. “
Consent is different than consultation and this represents a faulty interpretation of the requirement for free, prior, and informed consent of Indigenous communities.
The US statement does, on the other hand, note that the Declaration has “moral and political force” and expresses
“aspirations that [the United States] seeks to achieve within the structure of the U.S. Constitution, laws, and international obligations, while also seeking, where appropriate, to improve our laws and policies.”
With the U.S. finally supporting the Declaration, albeit with harmful caveats, now we need to see the Administration and Congress follow through on this commitment and work on implementing all of the Declaration without qualifications. We need to ensure that mining projects proceed only with the agreement of Indigenous Peoples and ensure that mining projects are no longer imposed on Indigenous communities.
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