Indigenous-Industry Agreements, Natural Resources and the Law

Ibironke T. Odumosu-Ayanu, Dwight Newman, Ibironke T. Odumosu-Ayanu, Dwight Newman

• Editorial: Routledge
• Año: 2020
• ISBN:
  9780429012853
• Edición: 1
• Categoría: Jura
• Categoría: Völkerrecht

This edited collection is an interdisciplinary and international collaborative book that critically investigates the growing phenomenon of Indigenous-industry agreements – agreements that are formed between Indigenous peoples and companies involved in the extractive natural resource industry. These agreements are growing in number and relevance, but there has yet to be a systematic study of their formation and implementation. This groundbreaking collection is situated within frameworks that critically analyze and navigate relationships between Indigenous peoples and the extraction of natural resources. These relationships generate important questions in the context of Indigenous-industry agreements in diverse resource-rich countries including Australia and Canada, and regions such as Africa and Latin America. Beyond domestic legal and political contexts, the collection also interprets, navigates, and deploys international instruments such as the United Nations Declaration on the Rights of Indigenous Peoples in order to fully comprehend the diverse expressions of Indigenous-industry agreements.

Indigenous-Industry Agreements, Natural Resources and the Law presents chapters that comprehensively review agreements between Indigenous peoples and extractive companies. It situates these agreements within the broader framework of domestic and international law and politics, which define and are defined by the relationships between Indigenous peoples, extractive companies, governments, and other actors. The book presents the latest state of knowledge and insights on the subject and will be of value to researchers, academics, practitioners, Indigenous communities, policymakers, and students interested in extractive industries, public international law, Indigenous rights, contracts, natural resources law, and environmental law.

Part I

Theoretical and Conceptual Frameworks

1Indigenous-Industry Agreements, Natural Resources, and the Law: An Introduction

Ibironke T. Odumosu-Ayanu and Dwight Newman

Agreements between Indigenous peoples and industry actors (typically in the natural resource sector)—what we will call Indigenous-industry agreements—raise important scholarly questions warranting attention. Scholarly attention to Indigenous-industry agreements has been limited thus far. This collection sets out to try to change that by bringing together a series of different scholarly perspectives on Indigenous-industry agreements and some of the key issues they raise.

Our discussion takes place against a backdrop of natural resource development generating significant attention and debate in the last half century. The practice and discourse of natural resource development have mostly been dominated by a limited range of actors encompassing states, natural resource proponents and developers (industry) and, in the case of many developing countries, international financial institutions such as the World Bank. The last few decades witnessed small, albeit important, shifts in the discourse and practice, yet the communities that host and are impacted by resource development have not yet received much formal attention.

In many cases, these host and impacted communities are Indigenous peoples. A significant proportion of the world's remaining natural resources are located on Indigenous lands and traditional territories.¹ Due, in part, to Indigenous peoples' advocacy and activism in domestic and international fora, recognition in some jurisdictions of sovereignty that Indigenous peoples have asserted for centuries, the ascendance of free, prior, and informed consent (FPIC) and contentions over its scope,² governments' interpretation of the duty to consult Indigenous peoples prior to resource development,³ and industry's turn to the “social license to operate,” agreements between Indigenous peoples and industry have proliferated in recent decades.⁴ Agreements between Indigenous peoples and other actors are not new. They have existed since colonial times.⁵ What is relatively new is Indigenous peoples' participation as parties in agreements that are related to resource development.

Indigenous peoples in Canada and Australia have been at the forefront of agreement-making with industry with different areas of focus such as environmental management⁶ and benefits negotiations.⁷ The most substantial prior study of Indigenous-industry agreements, a leading book by Ciaran O'Faircheallaigh, undertook a comparative study of the development of Indigenous-industry agreements in these two jurisdictions, examined factors that led to stronger or weaker Indigenous-industry agreements in particular contexts, and generally set out some matters that we do and do not know about Indigenous-industry agreements.⁸ However, the inherent limits on the scope of that book's largely empirical study also made clear that there are numerous normative and analytical angles from which Indigenous-industry agreements ought to still be studied, in addition to the possibility of reaching beyond the Australian and Canadian contexts.

This collection considers issues related to Indigenous-industry agreements between Indigenous peoples and industry proponents on continents as diverse as Africa, Australia, North America, and South America.⁹ These agreements, which are known by different terminologies including Impact Benefit Agreements (IBAs) in Canada, Community Development Agreements (CDAs) in Ghana, Global Memoranda of Understanding in Nigeria's oil and gas industry, and Participation Agreements in Australia, are growing in number and relevance and have been referred to as “an emerging global phenomenon.”¹⁰ The collection studies Indigenous-industry agreements, though with some contributors discussing agreement-making with peoples or communities with contested or debated Indigenous status or not having Indigenous status on present legal definitions.

While the incidence of Indigenous-industry agreements is becoming increasingly widespread, there remains limited analysis of their negotiation, contents, implementation, and impacts. Contributors to this collection were invited to reflect on these issues by developing theoretical and conceptual frameworks for assessing Indigenous-industry agreements, investigating jurisdictional case studies that demonstrate some of the challenges and any emerging best practices regarding the agreements, analysing specific areas such as gender and the environment, and assessing the implications of Indigenous-industry agreements for FPIC and vice versa. Indeed, the developing norm of FPIC is the connecting thread among all the pieces in the collection. Each author engages with FPIC in some way, very appropriately so in the context of the central place of this norm in contemporary Indigenous rights discourse and its potential significance to resource development activity.¹¹

This book is situated within the framework of the relationship between Indigenous peoples and natural resource development. It is an interdisciplinary collection of international scope that critically analyses legal, political, normative, conceptual, and practical questions regarding the growing phenomenon of Indigenous-industry agreements. In light of the overarching objective of opening a conversation on various key questions on Indigenous-industry agreements, this collection seeks to achieve four purposes.

First, the collection presents analyses aimed at developing theoretical and conceptual frameworks for analysing Indigenous-industry agreements (Odumosu-Ayanu; Foster; Newman & Graham; Graben, Cameron & Morales; O'Faircheallaigh). There have yet to be established conceptual frameworks, in part, because this is a relatively novel subject. Second, contributors provide targeted analyses of specific relevant areas including gender (Graben, Cameron, and Morales), the environment (Noble; Maclean), and politics (Mitchell). Third, in order to situate the analyses, contributors present case studies from countries such as Australia, Canada, Peru, and several others and regions such as Africa, the Middle East, and Latin America (Kamphuis; Gaffney; Cordes, Mebratu-Tsegaye & Szoke-Burke; Olawuyi; Isaac & Hoekstra; and Coates), with complexities on Indigenous status in some of these regions leading to a broader discussion of agreements with host communities. Fourth, FPIC is an overarching theme in all the chapters. In discussing the emerging internationally recognized norm of FPIC, the contributors present novel analyses on what could be the next frontier in Indigenous peoples' engagement with other stakeholders in extractive industries. They critically explore the law and politics of Indigenous-industry agreements, using FPIC as the basis for this essential simultaneous legal and political reading.

In responding to the four purposes outlined in the preceding paragraph, the contributors also engage with specific normative questions. At this stage in the development of Indigenous-industry agreements, Indigenous peoples, industry, states, and other actors are still confronted with questions such as what these agreements should seek to achieve and whether they should be centrally regulated by the state. Relying on specific agreements in their analysis, among other relevant normative questions, the contributors, to varying degrees, assess the impacts of colonialism on the negotiation and implementation of Indigenous-industry agreements, ask whether these agreements mitigate risk and uncertainty or whether they contribute to uncertainty, assess legitimacy and perceptions of the legitimacy of these agreements, and critically examine the objectives that they (should) achieve.

Central to the collection's conceptual legal questions is the recognition that law is contested. Contributors recognize that legal perspectives from diverse legal traditions including Indigenous law, domestic state law, and international law are germane to the full development of robust Indigenous-industry agreements. Some contributors (including Odumosu-Ayanu; Graben, Cameron, and Morales) are critical of insufficient engagement with Indigenous laws in Indigenous-industry agreements while others (including Newman & Graham; Isaac & Hoekstra; Gaffney) descriptively emphasize domestic state law, which is the law that mostly regulates these agreements especially from industry's perspective.

In addition to engendering analysis based on multiple legal sources, Indigenous-industry agreements are sites for navigating and negotiating diverse and sometimes competing interests and views between Indigenous peoples and industry. However, presenting Indigenous peoples' and industry's competing interests is incomplete without accounting for the interests of the state and the public that it represents. For, even when the state is not a party to Indigenous-industry agreements, the agreements are negotiated, formed, and implemented in the context of complex natural resource relationships of which the state is a major part. Closely related to these interests is the identity of the actors, which is by no means monolithic, but which has a significant impact on how they view the agreements. As contributors to this collection demonstrate, the identity of the Indigenous rights-holder as well as the sometimes-competing interests and political structures within Indigenous communities are crucial to analyses of Indigenous-industry agreements. The identity and interests of industry actors are also germane to understanding the complex interactions that these agreements generate. The goals that industry seeks to achieve through these agreements (addressing uncertainty, mitigating risk, seeking a social licence to operate, etc.), the differences in the sectors (including mining, oil and gas, forestry, and agriculture), and the scope of industry's duty under the law and internal policies on voluntary obligations, remain relevant factors that impact how they view the agreements. Hence, Indigenous-industry agreements emerge as a complex site of negotiation that contributors explore in this collection.

As the unfolding chapters make clear from the first section of the book, Indigenous-industry agreements raise an array of conceptual legal questions including their interaction with areas of domestic law such as contract, constitutional, and administrative law as well as the extent to which these agreements are regulated or not regulated by domestic state law. As Odumosu-Ayanu argues in her chapter, these interactions raise questions about the nature of the agreements and cast these agreements as instruments that extend beyond mainstream conceptions of common law contracts as private regimes.¹² She analyses the nature of Indigenous-industry agreements noting that content, context, and sometimes consent, impact the nature of specific agreements. Based on her analysis, these agreements, which are impacted by the complex legal and political environment in which they are situated, could be legal, political, and/or public–private instruments. Odumosu-Ayanu observes that the laws that currently inform Indigenous-industry agreements mostly flow from legal traditions that states and industry favour and argues for consideration of a legal pluralist framework that adequately accounts for Indigenous legal traditions which may be more reflective of the potential that these agreements have but are yet to achieve.

Apart from the legal questions, legitimacy issues arise. In presenting his conceptual analysis of Indigenous-industry agreements, Foster develops preconditions for legitimacy that navigate both procedural and substantive legitimacy. These preconditions—community leverage, host state policy, compatibility of project impacts with community values, and the bargaining process for the agreements—form a framework for determining the feasibility of Indigenous-industry agreements and which agreements are able to garner broad community support.

Newman and Graham engage with some of the tensions on various areas of law in their chapter where they argue that although Indigenous-industry agreements serve risk allocation and uncertainty-mitigating functions, uncertainty remains especially with regard to the intervention of institutions such as courts in the interpretation o...

Índice

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Contents
• List of Contributors
• Preface
• Acknowledgements
• PART I: Theoretical and Conceptual Frameworks
• PART II: Analytical and Critical Perspectives
• PART III: Politics, Environment and Sustainability
• PART IV: Jurisdictional Case Studies
• Index