Cross-Examination: Mind your own business – Indigenous People’s Rights and the Commercial Sphere
CROSS-EXAMINATION IS A BLOG SERIES ABOUT CURRENT LEGAL ISSUES IN NEW ZEALAND PRODUCED BY EJP COMMUNICATIONS VOLUNTEERS.
The Centre for Human Rights at the University of Auckland recently hosted Professor James Anaya for a talk about business and the rights of indigenous peoples. Professor Anaya hails from the University of Arizona, and has recently been the Special Rapporteur on the rights of indigenous peoples for the United Nations.
Speaking from a wealth of personal experience, Professor Anaya outlined the salient points from the UN Guidelines for Business and Human Rights. Utilizing the rubric of this framework he identified three pillars: governmental responsibility to safeguard indigenous rights and interests; corporate responsibility to indigenous peoples which their work may infringe upon; and the pressing need for remedies.
The message was a simple one: yes, things are improving, businesses are beginning to recognize and attempt to respect indigenous interests- due in part to the increasing “sophistication” of shareholder interests, and in part to the vocal activities (and often protests) of the victims. Yet, there is still much work to be done. One of the major remedies touched upon was encouraging governments to weigh more heavily in favor of indigenous concerns over economic and material benefits to the wider community.
Examples of business adversely affecting indigenous rights ranged from ski resorts on sacred Native American sites in California; to a dam flooding indigenous communities in Panama; to gold mining in traditional Mayan territory in Guatamala. Typically each case involved the extraction and use of natural resources, each time at the behest of local indigenous populations. One particular weakness highlighted was the lack of effective pathways for indigenous groups to address their concerns- limited essentially to either the UN, reporting to the UN Special Rapporteur, and domestic courts- all of which have variously been seen as ineffective for indigenous peoples.
Ultimately, it seems that Professor Anaya would discourage overly theoretical discussion of Indigenous rights, instead favoring a practical solution-based response. The major solution he vouched for was addressing the perceived tension between indigenous peoples and business, by inculcating them into the business structures concerned. As such, indigenous peoples should have the opportunity not only to profit from such ventures, but to engage in practical decision-making regarding sites of both traditional and contemporary importance.