Mikkelsen A., Langhelle O. (eds.) Arctic Oil and Gas. Sustanability at Risk?
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17 Orlov, V. (2002) ‘Federalism and mineral resource use’, Mineral Resources of Russia:
Economics and Management, (5).
18 As above.
19 Pfilippov, V. (2002) ‘Second key be taken away from Nenets Governor’, Izvestia, July 17.
20 Kruglov, A. (2004) ‘Siberian accord going to stop oil leakage for the sake of federal
center’, Kommersant-Sibir, April 22.
21 Walde, T. (2006) Production-Sharing Contracts in Russia: A Historical Observation,
September 26.
22 Bekker, A. (2006) ‘Not for foreigners’, Vedomosti, May 25.
23 Rebrov, D. (2006) ‘Strategic view’, Vremya Novostey, June 14.
24 The RF President’s Decree ‘On the concept of the Russian Federation transition to
sustainable development’ of April 1, 1996, # 440, Rossiyskaya Gazeta, April 19, 1996.
25 As above.
26 Rossiakaya Gazeta, July 2, 1996.
27 See Lazsentcev, V. (ed.; 2005) North as the Object of Complex Regional Studies,
Syktyvkar: Russian Academy of Sciences; and Volgin, N. and Alexeev, Ju. (eds; 2004)
Russian North: Problem of Social Development, Moscow: Dashkov & Co. Publ.
28 www.yamal.org/arctic/index.html#baza.
29 www.neelov.ru/6/2006 3/14/1178.
30 As above.
31 Turuntaev, S. (2006) ‘The Arctic awaits’, Oil of Russia, (4).
32 Oil and Capital, (VII-VIII), 2001.
33 Special issue of Oil and Capital: ‘Russian offshore development’, 2006.
34 The RF President’s Decree ‘On the creation of the industrial production base for devel-
opment of hydrocarbon fields on the continental Arctic shelf’ of May 23, 1996, # 765,
Rossiyskaya Gazeta, May 30, 1996.
35 Industrial News, (3), March, 2006.
36 Yevdokimov, Yu. ‘On the brink of the new era of gas production in Russia’, Oil and
Capital, (8), 2005.
37 See, for example, Rybalchenko, I. (2003) ‘Gazprom is in want of money’, Kommersant,
May 31.
38 Dokuchaev, D. (2006) ‘Gazprom decided to develop Schtokman field alone’, Moscow
News, (39).
39 Kazarinov, V., Lyubovny, V., Chelintzev, J. S., Novy Urengoi, O. (eds; 2005) Novy
Urengoi Heading Toward Sustainable Development, Yekaterinburg: UralSibpress
Publishing House.
40 As above.
41 ‘Mir korennykh narodov’, Zhivaya Arktika, (13).
42 ‘Mir korennykh narodov’, Zhivaya Arktika, (14).
43 Decree of the Government of Russian Federation ‘On formation of oil companies as
companies of the Regional Development in Khanty-Mansiisk Autonomus Okrug’ of
July 21, 1992, # 503.
44 As above.
45 As above.
46 ‘Are Khanty and Mansi needed for Khanty-Mansiisk?’, Novyie Izvestia, March 22, 2000.
47 Klokov, K. Modern State of Circumpolar Reindeer Breeding. Available at: http://www.
jurant.ru/publications/reindeer.
48 Ezingi, Kh. (2006) The problems of indigenous peoples of the North, Proceedings of
the International Scientific Conference ‘Oil, Gas of the Arctic’, Moscow, June 27-29.
49 Afanasjeva, N., the President of the Kola Sámi Association, interview 2006. All
materials and information in this part of the chapter have been gathered during an
expedition to Murmansk region and the Lovozero sub-region in June-July 2006 as part
of the research project of International Polar Year 2007–08.
286 E. N. Andreyeva and V. A. Kryukov
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The Russian model 287
Part III
Comparisons and
managerial implications
11 Human rights and indigenous
peoples in the Arctic
What are the implications for the
oil and gas industry?
Ketil Fred Hansen and Nigel Bankes
Introduction
There are about 300 million indigenous people in the world today, representing
more than 4000 different languages in more than 70 countries (United Nations
Human Development Report; UNHDR, 2004: 29).
1
One and a half million of
these people live in the Arctic region where indigenous people represent
15 per cent of the total population (compared with 1.5 per cent in the entire
world). This is a common trait throughout the circumpolar world, although the
proportion of indigenous peoples does vary considerably. In some places, indige-
nous peoples are in an absolute majority,
2
while in other parts of the Arctic, they
represent a small minority.
3
The adoption of the Declaration of the Rights of
Indigenous Peoples by the United Nations General Assembly in September 2007,
while of obvious global significance, is of particular importance in the Arctic and
to the four Arctic states considered in this volume.
This chapter examines the interplay between the human rights of indigenous
peoples and the interests of the oil and gas industry in carrying out exploration,
production and transportation of oil and gas within the traditional territories of
those indigenous peoples. The chapter focuses on the human rights of indigenous
peoples in international law, but also tries to assess how these rights in interna-
tional law form part of the discourse within the domestic legal and political
systems of each of the four states: Canada, Norway, Russia and the United States
of America (USA). Furthermore, the chapter explores how these discourses
influence the commitments of the oil and gas sector to ideas of corporate social
responsibility.
Within the field of international human rights law, we focus on the rights of
indigenous peoples in relation to lands and resources within their traditional
territories. As a starting point, we recognize that there is a close relationship
between the right of all peoples (including indigenous peoples) to self-determination
as provided for in the two International Covenants,
4
which also recognize the
inherent right of all peoples to their natural wealth and resources, and their right
not be deprived of their own means of subsistence.
5
In reviewing the relevant international instruments, it is worth emphasizing that,
although some of these instruments have global application (e.g. the International
Covenant on Civil and Political Rights; ICCPR), either because they are widely
ratified or because they also encode principles of customary law, others do not
bind each of the four states. This may be because a state has not ratified the
relevant instrument (e.g. the Convention 169 Concerning Indigenous and Tribal
Peoples in Independent Countries; hereafter ‘ILO 169’) or because the norms are
regional in nature, for example, the norms of the Organization of American States
(OAS) may bind the USA and Canada, but they will not bind Norway or Russia.
It is also worth noting that United Nations (UN) declarations once adopted often
influence how states deal with relevant issues, even if the declarations are not
legally binding.
6
Table 11.1 illustrates the positions, and further discussion follows
in the substantive sections of the chapter.
Norway’s commitment to human rights instruments directed at the situation of
indigenous peoples is notable both within the context of this group of states but
also amongst its fellow Nordic countries. Jan Egeland argues that an important
part of Norway’s reputation and ‘power’ is founded upon its human rights record
(Egeland, 1988). This commitment legitimizes Sámi claims to political inclusion
and accommodation within the majoritarian framework of the democratic
nation-state (Broderstad, 2001; Oskal, 2001: 235).
The four states observe different practices and rules with respect to the rela-
tionship between international law and domestic law. Historically, the legal
position in Canada and Norway is very similar with respect to the incorporation
of international human rights conventions into the domestic legal system. Both
states take a dualist approach in which ratification of an international convention
does not automatically result in a change in domestic law. Domestic rules will
only change as a result of an enactment of the competent legislature.
7
Furthermore, both states generally took the somewhat self-satisfied view that
domestic norms were already compliant or ‘in harmony’with the main international
292 K. F. Hansen and N. Bankes
Table 11.1 Ratifications of selected human rights instruments
Canada Norway Russia US
ILO 169 No Yes No No
International Covenant on Civil Yes Yes Yes Yes
and Political Rights (ICCPR)
ICCPR, Optional Protocol No. 1* Yes Yes Yes No
Convention on the Elimination of All Yes Yes Yes Yes
Forms of Racial Discrimination
American Declaration on the Rights† Yes No No Yes
and Duties of Man
*By ratifying Optional Protocol No. 1, a state party to the ICCPR agrees to accept the right of
individual petition whereby an individual may complain to the Human Rights Committee that a state
has violated his or her protected rights.
†All member states of the Organization of American States are bound by the Declaration by virtue of
membership of the Organization.
human rights instruments and that legislated changes to domestic law were, there-
fore, unnecessary. The judiciary supports this view by applying a presumption to
the effect that domestic laws are assumed to comply with the international
obligations of the state, and will thus strive to interpret domestic laws consistently
with this understanding.
With a view to strengthening the status of human rights in domestic law,
Norway departed from this tradition in April 1999 when it adopted the Human
Rights Act.
8
With this legislation Norway listed certain conventions as having the
force of law in Norway,
9
including the two International Covenants and Optional
Protocol No. 1 to the ICCPR. The Act goes on to provide that the provisions of
the listed agreements ‘shall take precedence over any other legislative provisions
that conflict with them’.
US law is certainly more complex with respect to the relationship between
international treaty commitments and domestic law, but the Supremacy Clause of
the US Constitution (Article VI(2)) stipulates that treaties have the same status as
an Act of Congress and thus will trump an inconsistent state law as well as an
earlier Congressional enactment. Treaties, however, require Senate approval
(Tribe, 2000: 643-656).
10
On the face of it, Russia is the most ‘internationalist’ of
the four states insofar as Article 15 of the 1993 Constitution takes a monist
position in which both customary law and treaties to which Russia is a party are
automatically a part of the legal system and, in the event of a conflict between a
treaty and an ordinary law, it is the treaty provision that will prevail. However,
most Russian observers argue that the law and practice in matters concerning
human rights and indigenous peoples differ considerably.
11
Canada, Norway and Russia each offer a degree of constitutional protection to
Aboriginal rights. Canada amended its constitution in 1982 to recognize and
affirm ‘existing aboriginal and treaty rights’. Norway amended its constitution in
1988 to recognize (Article 110a) that the state has an obligation to create the
conditions to enable the Sámi to preserve and develop their culture, language and
way of life. And the Russian constitution (Article 69) ‘guarantees the rights of
small indigenous peoples in accordance with the generally accepted principles
and standards of international law and treaties of the Russian Federation’. There
is no formal constitutional protection for the rights of indigenous people in the
USA, although the rules pertaining to the division of powers between the state
and federal governments do to some extent insulate indigenous communities from
the application of state (but not federal) laws.
12
The interests of the oil and gas industry
As the oil and gas industry is driven to the frontiers in the search for new resources
whether in the Beaufort Sea, the Canadian High Arctic, Greenland, the Barents Sea
or elsewhere in the Arctic, it frequently finds itself operating within the traditional
territories of indigenous peoples. In most cases, the industry operates on the basis of
authorization (permits, licences, etc.) and resource rights (leases, concessions, etc.)
secured from a national or sub-national, non-indigenous government. In many cases,
Human rights and indigenous peoples in the Arctic 293
the industry will engage in these activities in areas where indigenous peoples are
known to have claims to lands and resources, but where these claims are contested by,
and have never been settled by, non-indigenous governments.
In some cases, however (e.g. in Alaska and much of northern Canada), the
non-indigenous governments have settled by agreement (e.g. the Nunavut Land
Claim Agreement) or legislation (e.g. the Alaska Native Claims Settlement Act),
at least at some level, the land and resource rights of the indigenous peoples.
These settlements may recognize a full ownership claim of indigenous peoples to
oil and gas rights and sub-surface rights within at least part of their traditional
territories. In these cases, the oil and gas industry will find itself negotiating with
an indigenous landowner (e.g. the Inuvialuit people of the Mackenzie Delta) for
its oil and gas concession or lease. For the remainder of the lands, however,
(and this is the case under all the land claim agreements in northern Canada,
including the Inuvialuit Agreement) indigenous peoples may only own the
surface rights, in which case the industry will still have to deal with access issues
and negotiate impact and benefit agreements. Other aspects of these land claim
agreements provide for co-management structures and regulatory authorities that
share power and authority between indigenous peoples and the non-indigenous
government.
13
In sum, oil and gas operators working within the traditional territory of
indigenous peoples face particular challenges. Where claims have been settled,
the ownership position will be clearer, although industry will likely find itself
dealing with multiple owners and/or usufruct holders, both the state and indige-
nous people. Greenfield linear developments (e.g. pipelines such as the
Mackenzie Gas Project described in Chapter 8 in this book) that pass through the
traditional territories of a number of indigenous peoples will present the greatest
challenge. The challenge for the operator will be to observe both the laws of
general applications, and the terms of any settlement agreement between govern-
ments and indigenous peoples, as well as the extra-legal norms related to corpo-
rate social responsibility (CSR) perhaps informed by non-binding international
declarations, such as UN Declaration on the Rights of Indigenous Peoples
(UNDRIP), and international conventions, such as ILO 169, even if not ratified
by a particular state.
Where land claims remain unresolved, an oil and gas operator faces additional
and more serious challenges. At a practical level, unresolved claims create uncer-
tainty as to title for operators and their investors. Does the operator have the legal
right to proceed? Is it sufficient for the operator to have a set of state authoriza-
tions and state-granted property rights, or must it also secure additional
authorizations and approvals from the indigenous peoples with respect to the use
of their traditional territories? And will governments object if the operator elects
to deal directly with the indigenous peoples? An operator who chooses to ignore
these legal uncertainties and deal only with the national government faces the
possibility not only of civil protest (roadblocks, boycotts, etc.) but also risks the
accusation that it is ignoring the human rights of the indigenous peoples.
This may lead to legal liability (e.g. liability for trespass on the property of
294 K. F. Hansen and N. Bankes
another) or other forms of legal challenge to permits and the right to operate
(e.g. the indigenous peoples may argue that authorizations that violate constitu-
tional protections of indigenous rights or that are contrary to international norms
that are part of domestic law are simply void or invalid). Finally, some observers
argue that an international operator who deals solely with the national govern-
ment fails to meet certain norms of CSR, thereby damaging the corporation’s
image and reputation (Fjellheim, 2006).
In some cases, but more prominently in the case of operators active in
developing countries rather than in the Arctic, the World Bank or a Regional
Development Bank will want to be assured that the rights of indigenous peoples
have been fully respected and accommodated before endorsing a resource
project, and providing necessary financing or guarantees (see e.g. World Bank,
2006). For example, the International Finance Corporation of the World Bank
recommends that extractive industries operating in indigenous (or disputed)
territories follow the ILO 169 Convention, even if it is not ratified by the national
governments in question, since it is used as a reference point by indigenous
peoples themselves (World Bank, 2007). While emphasizing that the
legal responsibilities towards indigenous peoples are held by the states, to
break with international accepted human rights standards ‘can have serious
reputational impacts’, even if not part of the domestic law of a particular state
(World Bank, 2007: 5).
Recent developments in human rights law
Despite important international progress concerning the rights of indigenous
peoples over the last few decades, it is an unfortunate reality that there is still
significant legal uncertainty in many countries as to the validity and scope of the
property and resource rights of indigenous people. At one extreme, this uncer-
tainty manifests itself in the doctrine of terra nullius, the claim that, when
European or other settlers arrived, the social institutions of the indigenous peoples
were so primitive that there were no indigenous property institutions to recognize.
The International Court of Justice has condemned this as a racist doctrine
14
and
it no longer informs the domestic law of most countries.
15
But it is still the case
in many countries in the Americas, in the South Pacific and in Nordic countries
that governments have failed to recognize, demarcate and protect the property
rights of indigenous peoples. It is not uncommon for the governments of these
countries to pay lip service to the protection of indigenous land rights but then to
act as if the state were the full beneficial owner of all traditional territories within
the boundaries of the state.
16
There have been considerable developments in the body of international law
that pertains to the rights of indigenous peoples over their traditional territories
over the last two decades. It is now possible to assert without fear of contradiction
that these issues are not just matters of domestic law and policy (the traditional
approach to human rights generally) but also raise questions of international law
against which domestic laws and policies may be judged. We can also see in these
Human rights and indigenous peoples in the Arctic 295