Interactions between International Trade and Investments Law and Indigenous Peoples’ Rights in mining projects

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Trade and investment agreements are key elements of mining projects. In particular, decision to invest in a mining project depends on the existing legal protection provided by bilateral or multilateral investment agreements (BITs). 

Arbitration cases brought against states by extractive corporations often involve Indigenous communities whose ancestral territories are exploited by corporations. Yet, Indigenous peoples, which are particularly vulnerable to mining projects, seem to be mostly excluded from negotiation of trade and investments agreements and from arbitration procedure. However, the adoption of the Canada-United-States-Mexico Agreement (CUSMA), signed between the three States on November 30, 2018, and which include several provisions on Indigenous peoples’ rights, demonstrates a development towards the integration of Indigenous Peoples’ rights into international investment law.

The objective of this project is to provide an update on the existing interactions between Indigenous Peoples’ rights (IPR) and international trade and investment law (ITIL) in mining projects. This project is divided into three phases. As a first step, we carry out a systematic review of the primary literature on the interactions between ITIL and IPR. A content analysis of existing BITs in the various states targeted by the MinErAL project supplements our literature review. Our literature review and content analysis allow us to uncover the elements of interaction between IPR and ITIL that may exist in these BITs.

Our legal diagnosis leads to a second step in which we formulate some research questions and hypotheses. In particular, we propose some hypotheses and seek answers to the following questions: (a) Is there an imbalance in the legal protection of the interests of companies and indigenous peoples, an unevenness caused by the ITIL? (b) How can this imbalance be compensated? (c) Does this legal imbalance create a disparity of power in the negotiation of agreements between companies and indigenous peoples? (d) What would be the implications of possible reforms in ITIL? (e) What elements should states consider in negotiating BITs to safeguard the interests of indigenous communities in the specific context of mining projects? (f) What tools are available to indigenous communities to position themselves in BITs negotiations and in the context of arbitration over a mining project affecting them?

The third objective of this project is to make some recommendations to reinforce IPR through ITIL and BITs.

Zoé Boirin-Fargues