Indigenous movements and the risks of counterglobalization

1. Indigenous movements and the risks of counterglobalization Tracking the campaign against Papua New Guinea’s Ok Tedi mine by STUART KIRSCH Article presentation and implications for legal pluralism in development context

2. Issue • Kirsch studies the modality and the effects of indigenous communities’ use of “counterglobalization” strategies to uphold their rights. • Some of the hypotheses: • Is the social objective of the community affected by the alliance with international social justice actors? • How does this strategy differ from domestic strategies, is it more effective? • Can this ensure participation into ‘development’ and preservation of traditional livelihoods ?

3. The case study Political struggle of Yonggom people in Papua New Guinea, against BHP Billiton to redress environmental damage caused by the Ok Tedi mine

4. The case study Political struggle of Yonggom people in Papua New Guinea, against BHP Billiton to redress environmental damage caused by the Ok Tedi mine

5. Ok Tedi Largest operating mine in 1981 in PNG 18% of forex earnings of Gov of PNG Built along the Ok Tedi river

6. Environmental stakes Main issue: no containment of tailings (waste), resulting in vast environmental degradation of basin • PLANNED SAND STORAGE PIT FOR PYRITE WASTE EXTRACTED FROM TAILINGS

7. From national to global campaigning • Domestic political and administrative remedies ineffective • ‘Counterglobalization’ strategies: • Participation in formal supranational institutions (International Water Tribunal, Earth Summit) • ‘Alliance’ with other indigenous movements • Informal public campaigning through International networks (NGO, Churches, academia) • Challenge to BHP in its domestic legal forum (Australia)

8. The legal strife • Gov of PNG responded to the suit in Australia: • Compensation Act 1995: fining the use of foreign fora to seek damages for domestic projects • Ad-hoc Mining Act 1995: requiring that plaintiffs drop legal claim in Australia for environmental damages in exchange for domestic compensation (80$) • BHP Settlement in 1996: US$ 500m, comprising compensation, tailings containment, environmental program • But the tailings containment was not implemented • New suit at Victorian Supreme Court, causing BHP withdrawal and nationalization of the mine • Establishment of Trust Company, Community Mine Continuation Agreement, and final settlement in 2004

9. The impact on livelihoods By the time of the settlement, the river basin was irreversibly damaged (agriculture, fisheries, game) The conjugation of development or traditional subsistence proved in this case incompatible Yonggom people’s objective shifted from environmental restoration to maximizing compensation, implying continued mine operation Forced transition into ‘modern’ ‘cash economy’. What was the impact on identity, self-worth, cohesion as a result of the monetization in absence of local labor opportunities?

10. Legal significance of the case • Juridical liability of foreign corporations in their country of incorporation for foreign operations • Victorian Court recognized the rights to ‘subsistance resources’ regardless of economic value attributed by the market to them • The rights of users and not only of landowners recognized (incorporation of custom) among beneficiaries

11. Limitations of the legal approach (counterglobalization) Elected officials in civil system were chosen as signatories of settlement, in spite of their lack of jurisdiction over land tenure (customary law) The capacity of the legal system to enforce environmental restoration was limited.  The Yonggom people could not escape the ‘monetization’ of environmental damage/remedy. The capacity to use cash for development that restores livelihoods is questionable Was the counterglobalization approach responsible for the Yonggom people’s shift of campaign objective?