The Legal Framework for Protection of Indigenious People in Uganda

The Legal Framework For The Protection Of Indigenous People In Ugandan Oil and Gas Industry By Ojijo1 ABSTRACT The article examines the legal, institutional and policy framework regulating relationship between business corporations and indigenous peoples in the mining sector in Uganda. The article analyses of the international legal regime, national laws, policies and institutions, and the practice of local mining companies. The article also reviewed documents, articles journals, and articles, and analyzed the results. The article finds that the constitution provides for protection of indigenous peoples rights. In Uganda, the number of transnational corporations engaging in resource exploitation is rising they have to begin implementing standards of social responsibility within their projects. The government, however, does not have statutory promulgations, or institutions with the specific mandate for protecting indigenous peoples in the oil and gas producing areas. The article finds that international rules oblige the state to protect indigenous peoples against potential exploitation by corporations. Further, it is found that the scale and scope of resource exploration and exploitation of indigenous peoples’ lands and territories affects indigenous peoples and their communities. The article recommends that governments utilize international standards to guarantee the rights of indigenous peoples at a national level. The article concludes that, without prior mitigation measures, the worst in forms of human rights abuses to indigenous communities in Uganda’s oil and gas productions areas is likely to unfold. WORD COUNT: 5,854 1 Ojijo Pascal, a lawyer, author of 49 books, public speaker, entrepreneur, investor, performance poet, armature pianist, speaker of 19 languages, believer in open religion, and Inua Kijana Fellow, is the Founder & Lead at GoBigHub, a for profit social enterprise ith a year target of eing in , Afri an ities and ontri uting to % of Afri a’s GDP through connecting entrepreneurs to investors and mentors locally. He is passionate about the role of enterprise in fighting Afri a’s hallenges of po erty, unemployment, and low productivity by promoting trade, and not aid, and building better and sustainable livelihoods across Africa. Ojijo is a consultant in communication skills (public speaking, strategic planning, and writing); expert lawyer (ICT law, financial services law, law firm management, and legal rhetoric); a public speaker and coach on financial literacy and personal branding; and a consultant in collective investment schemes (private equity funds, investment clubs, provident funds, and cooperatives). He is the creator of chapchap financial literacy board game, gosacco.com investment clubs and saccos software, commonsenseapp.net mobile app, volunteeringfriends.org, allpublicspeakers.com, naniwapi.com, achibela.com, ugstick.com, gobighub.com, luopedia.com, and lawpronto.com. E: ojijo@gobighub.com. M: +256776100059 1 Table of Contents INTRODUCTION .............................................................................................................................. 3 Indigenous People Protection and Extractive Industries ........................................................................ 3 Indigenous People and Extractive Industries in Uganda........................................................................ 4 INTERNATIONAL FRAMEWORK FOR PROTECTION OF INDIGENIOUS RIGHTS . 6 Concept of Indigenous Peoples’ Rights ................................................................................................ 6 International Obligations...................................................................................................................... 7 International Labour Organization (ILO) Convention No. 169 ............................................................................ 7 United Nations Declaration on the Rights of Indigenous Peoples ........................................................................ 7 African Charter on Human and Peoples’ Rights ................................................................................................... 8 The World Bank Operational Policy 4.10 (Indigenous Peoples) .......................................................................... 8 Other International Documents ............................................................................................................................. 8 LEGAL, POLICY AND INSTITUTIONAL FRAMEWORK IN UGANDA ........................... 9 Statutes................................................................................................................................................ 9 Constitution of Uganda ......................................................................................................................................... 9 The Equal Opportunities Commission Act, 2007 ................................................................................................. 9 Other Statutes........................................................................................................................................................ 9 Policies.............................................................................................................................................. 10 National Land Policy 2011 ................................................................................................................................. 10 The Social Development Sector Strategic Investment Plan (SDIP 2)2011/12 – 2015/16................................... 10 Institutions......................................................................................................................................... 11 The Uganda Human Rights Commission (UHRC) ............................................................................................. 11 The Equal Opportunities Commission ................................................................................................................ 11 RECOMMENDATIONS & CONCLUSION ............................................................................... 12 Recommendations ............................................................................................................................. 12 Conclusion ........................................................................................................................................ 12 REFERENCES.................................................................................................................................. 14 Statutes.............................................................................................................................................. 14 Case Law............................................................................................................................................ 14 Books ................................................................................................................................................ 14 Journals ............................................................................................................................................. 14 Reports .............................................................................................................................................. 15 Other Sources .................................................................................................................................... 15 2 INTRODUCTION Indigenous People Protection and Extractive Industries The consequences of transnational corporate activities for indigenous peoples’ lands and territories include non-recognition of indigenous peoples’ property rights, eviction, displacement, and forced migration.2 Large-scale industrial projects involving natural resource exploration, detrimental to economic development, are executed in nearly every State in the world. 3 These projects inevitably affect indigenous peoples by reducing their traditional management systems, sacred places, pastures and hunting and fishing grounds, thereby undermining their economic, cultural and spiritual life and threatening their very existence. 4 The common practices of private corporations, is to exploit the natural resources within indigenous territories. 5 They do not take into account the rights of indigenous peoples and ignore and violate their individual and collective rights, divesting them of their lands and natural resources. 6 The historic relationship between indigenous peoples and corporations that operate on their lands and territories can best be described as one of conflict. 7 Corporate entities have often violate and ignore the individual and collective rights of their indigenous counterparties, who have suffered the negative consequences of corporate practices, especially in the extractive and energy industries. Indigenous Peoples may be referred to in different countries by such terms as “Indigenous ethnic minorities,” “aboriginals,” “hill tribes,” “minority nationalities,” “scheduled tribes,” “first nations,” or “tribal groups.” 8 The well-being and future of indigenous peoples depend directly on the policies and practices of States and international institutions. 9 They also depend on the realization of political and economic rights, the development of their human potential, the strengthening of traditional economies, environmental protection and the legal regulation of relations with corporations. 10 It is hence the province of the global, as well domestic legal infrastructure to protect the indigenous communities. As early as 1949, the ICJ stated: "The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends on the needs of the community." 11 Szablowski, David. “Mining, Displacement and the World Bank: A Case Analysis of CompaniaMineraAntamina’s Operations in Peru.” Kluwer Academic Publishers 39 (2002): 247-73. Print. 3 Whiteman, Gail. “All My Relations: Understanding Perceptions of Justice and Conflict between Companies and Indigenous”; Peoples Organization Studies, January 2009 30: 101-120 4 Miranda, Lillian Aponte. “The Hybrid State-Corporate Enterprise and Violations of Indigenous Land Rights: Theorizing Corporate Responsibility and Accountability under International Law.” 11 LEWIS & CLARK L.R. 135 (2007). 5 Godoy, Ricardo. “The Effect of Market Economies on the Well-Being of Indigenous Peoples and on Their Use of Renewable Natural Resources.” The Annual Review of Anthropology 34 (2005): 121-38 6 Quane, Helen. “The Rights of Indigenous Peoples and the Development Process.” Human Rights Quarterly 27.2 (2005): 652-682. Project MUSE. 7 Ikelegbe, Augustine. “Civil society, oil and conflict in the Niger Delta region of Nigeria: ramifications of civil society for a regional resource struggle”. The Journal of Modern African Studies, 39, pp 437-469 8 Tupper, K. W. “Ayahuasca healing beyond the Amazon: the globalization of a traditional indigenous entheogenic practice”. Global Networks, 9: 117–136. 9 Mbabazi, Pamela .K, 2012. The Oil Industry in Uganda: A Blessing in Disguise or an all Too Familiar Curse. Claude Ake Memorial Lecture, Nordiska Afrikainstitutet, Uppsala: NORDIC. 10 Sieder, Rachel. "Emancipation" or "regulation"? Law, globalization and indigenous peoples’ rights in post-war Guatemala”. Economy and Society, 40:2, 239-265 11 Reparations for Injuries suffered in the service of the United Nations, Advisory Opinion, 1949 I.C.J. 174, 79 (April 11). 2 3 While a few cases of good practices can be found on the part of the corporations that comply with international and national norms, concerns remain largely on a systemic level. The extractive industry has great benefits to economic development of nations, but on the other hand, also great and mostly, negative, effect on the indigenous communities. Indigenous People and Extractive Industries in Uganda Uganda discovered oil reserves of commercially viable deposits to the tune of 3.5 billion barrels12 beneath the Albertine Rift Valley Graben, west of Uganda 13. Although the first steps of discovery were undertaken in 1925, Uganda’s oil exploration only began in earnest of 2003 prompted by the confluence of oil scarcity and rising prices. 14 Uganda joins Ghana, Ethiopia, Kenya, Mozambique and Tanzania as the newest African continent energy frontier – spurred by the discovery of oil onshore15. It is quite clear that oil mining at times leaves the human populations at risk in many underdeveloped oil producing states. 16 As Uganda draws towards its petroleum or oil production, the government is devoting enormous mechanisms towards its Energy and Mineral Development Sector which is projected to be the next heart of its development in the foreseeable future. There are already signs that Uganda’s indigenous communities soon joining the league of African troublesome petroleum and/or oil producing states. 17 This will be due to destruction of biodiversity and ecosystems, crop fields, displacements and landlessness, interstate and ethnic tension as are reported in recently published Uganda Human Rights Commission Report, 2014 18. Lake Albert is a major source of drinkable water to local people across the Albertine Graben region. 19 Ugandan Ministry of Water and Environment (MWE) has been instrumental in monitoring oil and gas activities in the Albertine Graben to assess the level of compliance to environmental requirements.20 Oil exploration has destructed the farming activities within the Albertine Graben especially during the 11 seismic surveys with inconveniences limiting cultivation and destructing crop fields. 21 Further, oil settles on soil leads to soil infertility thus decreasing the productivity of crop fields. In the same vein, fishery sectors sustainable will be at risk as economic activity employing many Albertine dwellers. 22 Also, there is already displacements of local indigenous populations. For 12 Daily Monitor news achieve available from: www.monitor.co.ug retrieved on March 26th , 2014 Ministry of Energy and Mineral Development: Albertine Region Sustainable Development Project (ARSDP); Resettlement Policy Framework (2013), Kampala 14 Lesedi Modesi, 2010. Can Uganda's Oil Endowment Support its Economic Development. African Perspectives. Global Insights Vol. 26 15 Thunstorm Anthony. 2013. Oil and Gas in Africa: Africa’s Reserves, Potential and Prospects. KPMG 16 United Nations Environment Programme (2011), ‘Environment Assessment of Ogoniland’ Nairobi - Kenya 17 Mbabazi, Pamela .K, 2012. The Oil Industry in Uganda: A Blessing in Disguise or an all Too Familiar Curse. Claude Ake Memorial Lecture, Nordiska Afrikainstitutet, Uppsala: NORDIC. 18 Daily Monitor: March 20th, 2014 19 Ministry of Energy and Mineral Development: Strategic Environment Assessment (SEA) of Oil and Gas Activities in the Albertine Graben, Uganda Report. (2013), Kampala 20 Ministry of Water and Environment: Water and Environment Sector Performance Report 2013, Kampala 21 Bategeka, L., Kiiza, J. and Ssewanyana, S. 2011. Oil Discovery in Uganda: Managing Expectations. Economic Policy Research Center Makerere University. Kampala, Uganda 22 Moss Kim. 2013. Leaders call for the Demnocratic Republic of Congo and Uganda to ReDemarcate their Border on Lake Albert. Future Directions International. Nedlands, Australia 13 4 instance, residents estimated at 7,118 from 13 villages in Buseruka Sub County in Hoima district are to be evacuated in order to create space for the construction of the proposed oil refinery 23. Measures undertaken in the government Resettlement Policy Framework 2013 (RPE) programme are lauded, but according to International Alert Report, some discrepancies like displacement without adequate compensation, disregard of women in decision making and others remain inadequately addressed in RPE. The compensation processes have been hitting the snag between the government, oil operators and oil host local communities. For example, residents of Nebbi and Hoima districts complained of the little compensation paid to them after destroying their crop fields during the oil surveys, building accesses to roads and oil well pads 24. Displacement can hence create resultant risks including, but not limited to communicable diseases transfer, ethnic tension and any other dire situation ruinous to the livelihood of the affected people. Some have called for more adjustments in the compensation packages while others have dismissed the entire process. 25 Other related issues affecting indigenous people include land speculators, rich and influential elites have up surged some oil districts. 26 For example, NAPE Report (2012) is a clear testament on how 700 hectares of land were ended up grabbed in Buliisa district by some bourgeoisies. In such scenarios, the poor, and socially disadvantaged groups as well as the indigenous people are not only displaced but also left in dire and squalid livelihood situation. There are already reported cases of arson and looting in some districts of Albertine region. In Buliisa district for example, indigenous Bagungu people accused the Balaalo herdsmen, backed up militarily of forcefully occupying their fertile land endowed with huge oil reserves. HURINET-U report 27 titled ‘Operation Restore Justice’ underpinned some eminent and local politicians in the Albertine Graben for fueling the fracas between the two ethnicities with the intensions of extending their political jurisdiction and hidden oil-related endeavors to the oil abundant areas like Buliisa. The Bagungu have already experienced the negative effects of oil exploration, and being a minority group, this has posed a double tragedy. The gas flaring of 2009 almost made the area inhabitable for humans because the environmental temperatures soared so high that people slept out of their houses, others walked bare chested. Some residents claim the noise was being heard across lake Albert in the Democratic Republic of Congo. The smoke gave residents breathing problems and rain water tapped from the roofs smelt like oil. During the seismic surveys, the noise from the explosives cracked some walls in houses, hens laid fewer eggs, some women got miscarriages, crops were destroyed and compensation delayed. The ground on which the heavy trucks passed is difficult to till because the soil was compressed. Some cultural sites where sacred rituals are conducted were destroyed, actually Ngasa II oil well in Hoima is seated on a cultural site! 23 The Observer news achieve available from: www.observer.ug retrieved on March 26th, 2014 Oil in Uganda: ‘Compensation remains thorny issue in oil regions’ available from: www.oilinuganda.org retrieved on March 20th, 2014 25 Nagendo Florence and Didas Muhumuza. (n.d.), Economic Displacement: A Case Article of Oil Exploration in Uganda. Tullow Oil: Kampala. 26 Rugadya A. Margaret. 2009. Escalating Land Conflicts in Uganda: a review of evidence from recent studies and surveys. International Republican Institute (IRI) 27 The Observer: July 11th, 2013 24 5 Traditional hunting paths have been occupied by people who have bought land in the oil-rich area. Even animals that go to the lake to drink water now have trouble because some places are already being fenced off and gazetted. Originally these places were communal but it is no longer the case. Further, it is not a guarantee that money channelled through the Bunyoro Kingdom will trickle down to the Bagungu because they (Bagungu) might be part of the kingdom but they speak a different language and have their own concerns and grievances that need to be addressed. Some of them feel that the benefits from oil will only end in Hoima and Masindi, not Buliisa. To this end, it is important to analyse the extent to which the legal, policy, and institutional framework in Uganda promotes the rights of indigenous people in the oil and gas producing areas. INTERNATIONAL FRAMEWORK FOR PROTECTION OF INDIGENIOUS RIGHTS Concept of Indigenous Peoples’ Rights Indigenous peoples have consistently advanced plenary conceptions of their rights over lands and resources within their traditional territories. In asserting property rights, indigenous peoples seek protection of economic, jurisdictional, and cultural interests, all of which are necessary for them to pursue their economic, social, and cultural development. Indigenous peoples’ rights over land stem not only from possession, but also from indigenous peoples' articulated ideas of communal stewardship over land and a deeply felt spiritual and emotional nexus with the earth and its fruits. Furthermore, indigenous peoples have typically looked to a secure land and natural resource base to ensure the economic viability of their communities. It is easy to understand that natural resources enable indigenous peoples to ensure a foundation for their well-being. Well-being is often interpreted in indigenous cultures as a full, integral life based on identity, dignity and wisdom in harmony with Nature and traditional knowledge systems. It is a balanced life based on a worldview of equality that incorporates humane, ethical, and holistic dimensions of living in harmony with nature. There are a number of groups in Uganda that have been identified as satisfying the Work Bank’s policy for the identification of indigenous peoples and they include the traditional hunter/gatherer Batwa communities, also known as Twa, the Benet/Ndorobo and the Ik. These people have historically suffered, and continue to suffer, disempowerment and discrimination on economic, social and cultural grounds. Their livelihood is threatened mainly by the dwindling access they have to land and natural resources on which they depend either as pastoralists or as hunt-gatherers. They rely on their land and environment to sustain themselves both physically (in terms of food, fuel and habitat) as well as culturally. Their economic systems exist separately to that of the mainstream community, and they tend to have minimal if any interaction with the socio- economic and legal systems of national governments. Health and education indicators are much lower than those of the rest of the community, often due to difficult access. This means that they are particularly vulnerable to changes in their socio-economic and physical environments. The common characteristics of these groups include social exclusion, deprivation from mainstream government services, lack of participation in development processes that affect them and in most cases uncertainty of land and natural resource tenure. 28 Anaya, James. “Indigenous Peoples' Participatory Rights in Relation to Decisions about Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Lands and Resources.” Arizona Journal of International & Comparative Law 22.1 (2005): 7-17. Print. 28 6 The International Work Group for Indigenous Affairs (IWGIA) and the Working Group on Indigenous Issues of the commission have argued that…the issue of indigenous peoples revolves around the assertion that certain marginalized groups are discriminated against in particular ways because of their particular culture, mode of production and subordinate position within the state and that state legal and policy frameworks have been impotent at addressing these challenges. This is a form of discrimination which other groups within the state do not suffer from. It is legitimate for these marginalized groups to call for the protection of their rights in order to alleviate this particular form of discrimination. 29 International Obligations At the international level there are instruments that protect indigenous peoples’ rights to development.30 International Labour Organization (ILO) Convention No. 169 The United Nations Declaration on the Rights of Indigenous Peoples and International Labour Organization (ILO) Convention No. 169 on Indigenous and Tribal Peoples (1989) direct States to recognize the inherent rights of indigenous peoples to their lands, resources and self-government and do not limit these rights to the spheres of traditional economy and culture. These instruments recommend that States cooperate with indigenous peoples and that they undertake genuine consultations regarding any project affecting their ancestral lands, territories and resources. This norm is reflected in articles 6 and 7 of ILO Convention No.169, and has been articulated by United Nations treaty supervision bodies in country reviews and in examinations of cases concerning resource extraction on indigenous lands. The existence of a duty to consult indigenous peoples is also generally accepted by States in their discussions surrounding the draft declarations on indigenous peoples’ rights, during the adoption of the United Nations Declaration on the Rights of Indigenous Peoples. 31 United Nations Declaration on the Rights of Indigenous Peoples Uganda is a signatory to the United Nations Declaration on the Rights of Indigenous Peoples which affirms the right of indigenous peoples to the full enjoyment of the rights guaranteed in thevarious UN human rights instruments. The Declaration also enumerates a number of rights guaranteed to indigenous peoples which include: the right to self-determination, which includes the right to autonomy or self-determination in matters relating to indigenous peoples’ internal and local affairs, civil and political rights, as well as social economic rights. The UN Declaration on the Rights of Indigenous Peoples calls upon States to consult with Indigenous Peoples to obtain their Free, Prior and Informed Consent (FPIC) prior to the approval of any project affecting their lands and resources. 29 Adelman, A. Morris. 2004. The Real Oil Problem. MTI Regulation Spring, Vol. 16: Beth Kytle and John Gerard Ruggie, Corporate Social Responsibility as Risk Management: A Model for Multinationals, (March 2005) (Harvard Kennedy School of Government Corporate Social responsibility Initiative Paper No. 10), 31 See Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, U.N. Doc. A/HRC/4/035 (Feb. 9, 2007). para. 20 [hereinafter “Business and Human Rights: Mapping International Standards”] 30 7 African Charter on Human and Peoples’ Rights At the African regional level, the leading instrument from which the rights of indigenous peoples can be deduced is the African Charter on Human and Peoples’ Rights. This instrument guarantees individuals a number of rights to be enjoyed without distinction of any kind such as race, ethnic group, language, or national and social origin. These include the right to equality, right to selfdetermination, right to freely dispose of wealth and the right to economic, social and cultural development. In this regard, the Charter provides that all peoples 16 shall be equal; they shall enjoy the same respect and shall have the same rights and that nothing shall justify the domination of a people by another. The World Bank Operational Policy 4.10 (Indigenous Peoples) Further, Uganda adopted the The World Bank Operational Policy 4.10 (Indigenous Peoples), which seeks to promote sustainable development by ensuring that the development process fully respects the dignity, human rights, economies, and cultures of Indigenous Peoples. For all projects that are proposed for Bank financing and affect Indigenous Peoples, the Bank requires the borrower to engage in a process of free, prior, and informed consultation. The Bank provides project financing only where free, prior, and informed consultation results in broad community support to the project by the affected Indigenous Peoples. The policy establishes processing requirements: screening, social assessment, consultation with communities involved, preparation of plan or framework, and disclosure. It also requires the borrower to seek broad community support of Indigenous Peoples through a process of free, prior and informed consultation before deciding to develop any project that targets or affects indigenous communities. Other International Documents Other international legal instruments relevant to the rights of indigenous peoples include the following: There are other legal normative instruments that promote and safeguard the rights of indigenous peoples. The instruments include General Recommendation No. 23 of the Committee on the Elimination of Racial Discrimination, concerning indigenous peoples (fifty-first session, August 1997), which calls on State parties to not only recognize and respect the indigenous peoples’ distinct culture, history, language and way of life as an enrichment of the State’s cultural identity, but also to promote its preservation. The Second International Decade of the World’s Indigenous People (2005-2015) calls upon Member States to increase their action and cooperation with indigenous peoples to achieve significant progress in the global improvement of their situation. 32 The Universal Declaration on Cultural Diversity (2001) emphasizes the role of consolidating cultural diversity as an ethical imperative and reminds States of the position of indigenous peoples within that diversity. Finally, the working paper entitled UNDP and indigenous peoples: a policy of engagement (2001) establishes United Nations Development Programme (UNDP) guidelines on this topic as well. 33 32 UNCTAD, World Investment Report, 2006 Ruggie, John Gerard. “Business and Human Rights: The Evolving International Agenda” The American Journal of International Law Vol. 101, No. 4 (Oct., 2007), pp. 819-840. 33 8 LEGAL, POLICY AND INSTITUTIONAL FRAMEWORK IN UGANDA Uganda has an elaborate legal, policy and institutional framework providing for indigenous people rights, and regulating the exercise of those rights, as below analyzed. Statutes Constitution of Uganda The Constitution offers no express protection for indigenous peoples but Article 32 places a mandatory duty on the state to take affirmative action in favour of groups who have been historically disadvantaged and discriminated against. The Constitution also mandates Parliament to enact appropriate laws, including laws for the establishment of an Equal Opportunities Commission (EOC), for the purpose of giving full effect to Article 32. This article enjoins the state “to take affirmative action in favour of groups marginalized on the basis of gender, age disability or any other reason created by history, tradition or custom for purposes of redressing imbalances that exist against them.”Overall, the Constitution provisions fall short of international standards in regard with recognition of Indigenous People. Cultural and religious rights of all Ugandans are protected under Article 37 of the Constitution. The Constitution, in the section on National Objectives and Directive Principles of State Policy, provides that every effort shall be made to integrate all peoples while at the same time recognizing the existence of, amongst others, their ethnic, religious and cultural diversity. The Constitution however offers no express protection for indigenous peoples. Article 180 (2) c of the 1995 Constitution also provides for local government to enact laws to provide for affirmative action for all marginalized groups referred to in Article 32 of the same Constitution. The Equal Opportunities Commission Act, 2007 This is an Act to make provision in relation to the Equal Opportunities Commission pursuant to articles 32 (3) and 32 (4) and other relevant provisions of the Constitution; to provide for the composition and functions of the Commission; to give effect to the State’s constitutional mandate to eliminate discrimination and inequalities against any individual or group of persons on the ground of sex, age, race, colour, ethnic origin, tribe, birth, creed or religion, health status, social or economic standing, political opinion or disability, and take affirmative action in favour of groups marginalized on the basis of gender, age, disability or any other reason created by history, tradition or custom for the purpose of redressing imbalances which exist against them; a nd to provide for other related matters. Regulation 14 2(a) states on the functions of the commission being to investigate or inquire into, on its own initiative or on a complaint made by any person or group of persons, any act, circumstance, conduct, omission, programme, activity 12 or practice which seems to amount to or constitute discrimination, marginalization or to otherwise undermine equal opportunities. In regard to IPs and the RPLRP, the Commission has to ensure that the rights of the IPs in the project area are respected and that they are not in any way hindered from their full participation in the project. Other Statutes The Land Act of 1998, the UWA Act, and the National Environment Statute of 1995 protect customary interests in land and traditional uses of forests. However, these laws also authorize the government to exclude human activities in any forest area by declaring it a protected forest or National Park, within which activities are regulated, thus nullifying the full customary land rights of indigenous peoples. 9 The National Environment Act defines the principles for environment management to include the encouragement of maximum participation by the people in the development of policies, plans and processes for management of the environment. The other principle defined by the Act is the conservation of the cultural heritage and use of the environment and natural resources for the benefit of both present and future generations. The law in effect, therefore, requires that indigenous peoples be consulted and involved in processes leading to the gazetting of their land. The National Forestry and Tree Planting Act (2003) provides for local communities to access forests for traditional uses provided such uses are compatible with sustainable development. The Acts also recognize historical rights of persons who resided inside conservation areas. 34 Policies National Land Policy 2011 The new land policy addresses contemporary land issues in Uganda and regarding land rights of ethnic minorities (a term that implicitly refers to IPs and other vulnerable groups), the policy provides for Government shall in its use and management of natural resources, recognize and protect the right to ancestral lands of ethnic minority groups. In addition it also provides that Government shall pay prompt, adequate and fair compensation to ethnic minority groups that are displaced from their ancestral land by government action. Under the policy, Government will take measures among others to pay compensation to those ethnic minorities that have in the past been driven off their ancestral lands for preservation or conservation purposes. As regards land rights of ethnic minorities (term implicitly refers to IPs and other vulnerable groups), the Policy states that the government shall, in its use and management of natural resources, recognize and protect the right to ancestral lands of ethnic minority groups. It also provides that the land rights of pastoral communities will be guaranteed and protected by the State and protects pastoral lands from indiscriminate appropriation by individuals or corporate institutions under the guise of investment. The new land policy above recognizes the rights of indigenous/marginalized people to their ancestral lands and should effectively address the challenges that have been faced by the IPs and marginalized groups in Uganda. The Social Development Sector Strategic Investment Plan (SDIP 2)2011/12 – 2015/16 The Social Development Sector fosters the rights of the vulnerable population, addresses gender inequalities, labour and employment as well as community mobilization and empowerment. 35 The plan recognizes that addressing the rights and needs of the vulnerable and disadvantaged populations such as People with Disabilities (PWDs), older persons, youth, orphans and other vulnerable children and the chronically poor underpins the core concerns of national development. The mission of the SDS is promotion of gender equality, social protection and transformation of communities, while the vision is a better standard of living, equity and social cohesion. The Sector Strategic Objectives include to improve the well-being of vulnerable, marginalized and excluded groups and to address gender inequality in the development process. Expected Outcomes of the plan include gender equality enhanced and vulnerable persons protected from deprivation and livelihood risks among others. 34 35 Section 25 of the UWA Act Semenova, Tamara. “Political mobilization of northern indigenous peoples in Russia”. Polar Record, 43, pp 23-32 10 Institutions The Uganda Human Rights Commission (UHRC) The UHRC is Uganda’s national human rights institution created by the Constitution, with mandate, amongst others, to investigate violations of human rights and to monitor government compliance with its human rights obligations detailed in the Constitution. This is in addition to making recommendations to Parliament on measures to promote human rights. The Commission is obliged, every year, to report on the state of human rights in the country and to submit its report to Parliament. The Commission has since its establishment played a very important role in highlighting human rights violations in the country and making recommendations for rectification. The Commission has on several occasions investigated and published its findings with regard to the human rights problems of marginalized groups and made recommendations on how these could be rectified. A good example is the intervention during the Karamojong disarmament exercise in 2005.UHRC will be a key institution to ensure 17 that the rights of the Indigenous People and vulnerable groups are respected during RPLRP implementation. The Equal Opportunities Commission The Equal Opportunities Commission was established by the Act of Parliament; the Equal Opportunities Commission Act, 2007; in pursuant to article 32(3) and 32(4) and other relevant provisions of the Constitution; to give effect to the State’s Constitutional mandate to eliminate discrimination and inequalities against any individual or group of persons on grounds of sex, age, race, colour, ethnic origin, tribe, birth, creed or religion, and take affirmative action in favour of groups marginalized on the basis of gender, age, disability or any other reason created by history, tradition or custom for the purpose of redressing imbalances which exist against them; and to provide for other related matters. The EOC also has powers to hear and determine complaints by any person against any action, practice, usage, plan, policy programme, tradition, culture or custom which amounts to discrimination, marginalization or undermines equal opportunity. 11 RECOMMENDATIONS & CONCLUSION Recommendations Based on these findings above, the article recommends the following strategies to promote protection of indigenous communities in mining areas: To avoid or minimize adverse impacts and, at the same time, ensure enhancement of benefits and full participation of the Indigenous People and vulnerable groups, at Ministry of Energy in collaboration with the partner implementing agencies should ensure that IP communities and vulnerable groups in general and their organizations are not excluded by any means in activities selection, design, and implementation processes. This will enhance the principle of consultant, and participation in development, which are recognized human rights principles. Further, the Ministry of Energy should carry out specific assessments of the impact of proposed projects on the economic and social development of indigenous peoples and the vulnerable groups as an integral part of the project cycle, through transparent process with the free and informed participation of the affected communities. This will ensure that interventions do not unnecessarily and unintentionally exacerbate factors outside the scope of planned impacts and also offer appropriate mitigation measures. Also, one gap that has still not been bridged is the one between policies and legislation on the one hand and their implementation on the other: at the end of the day, it is not so much the Constitution or new legal texts that matter, but the way they are put in practice. In addition, the protection of indigenous peoples’ land rights must therefore remain a priority both at the national and the international level. It is also to be expected that with the current democratization trend in Africa growing stronger, protection through legal means will acquire more importance. Again, whereas the Land Act of 1998, the UWA Act, and the National Environment Statute of 1995 protect customary interests in land and traditional uses of forests, these laws authorize the government to exclude human activities in any forest area by declaring it a protected forest or National Park, within which activities are regulated, thus nullifying the full customary land rights of indigenous peoples. They ought to be amended in the spirit of protecting indigenous communities. Finally, indigenous organizations should make fully use of the various international and regional monitoring bodies by submitting shadow reports, communications, etc., whenever possible. An alternative way of submitting shadow reports is to do it in collaboration with national human rights organizations, thereby mainstreaming indigenous issues and improving the chances of getting them tabled during the reviewing processes. Conclusion Oil producing countries experience rapid wheels of urbanization especially in vicinities proxy to oil extraction activities. This drives both opportunities and challenges. One of the challenge sis the enormous negative impact on the lives of the indigenous peoples who have to be resettled, under unclear compensation regimes, and whose livelihoods are affected due to the effect on the environment, and or, social structures as a result of new arrivals, population increments, and related regulations to support the oil development process. 12 Uganda's constitution has no express protection for Indigenous Peoples, though it does provide for affirmative action in favor of marginalized groups. The Land Act of 1998 and the National Environment Statute of 1995 protect customary interests in land and traditional uses of forests. However these laws also authorize the government to exclude human activities in any forest area by declaring it a protected forest, thus nullifying the customary land rights of Indigenous Peoples. However, the new Land Policy 2011 seeks to address the issue of dispossession of indigenous people of their ancestral land, but the same are not clearly stated. The use of international legal regime in promotion of rights of indigenous people is key since transnational corporations have greater power than some governments to affect the realization and protection of rights, and further, these firms must bear responsibility for the rights they may impact.36 This will ensure that the states that cannot, or do not want to, protect rights of indigenous citizens, do so under domestic law, there must be direct and uniform corporate responsibilities under international law.37 Further, there is need impose direct obligations on corporations under international law by seeking to further clarify and progressively codify the duties of States to protect human rights against corporate violations.38 Soft law hybrid arrangements also represent an important innovation by embodying such a concept combining importing and exporting States, companies, and civil society actors, as well as integrating voluntary with mandatory elements. Finally, there is need for providing incentives as well as punishments, identifying opportunities as well as risks, and building social movements and political coalitions that involve representation from all relevant sectors of society, including business – much as has been occurring in the environmental field. In sum, international law has an important role to play in constructing a global regime to govern business and human rights. 39 See, e.g. BLIHR, UN Global Compact, and Office of the High Commissioner for Human Rights, “A Guide for Integrating Human Rights into Business Management,” available at < htpp://www.blihr.org>. Advance Unedited Version 37 Onyango, J O. 1992. Governance, Democracy and Development in Uganda Today: A Socio Legal Examination. African Article Monographs. 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