Conversations about Indigenous Peoples and Adjudication Interviews with G. Bennet, and S. Corry Beatriz Barreiro Carril* B. Barreiro: What is your general opinion of inter- national legal norms concerning indigenous peo- In the following interviews with some key actors of ples, insofar as international law is made for and adjudication, B. Barreiro has been posing several key by the States? questions regarding the development of litigation on G. Bennet: I think there are always limitations, it is indigenous peoples’ rights. Although there is still a long better than it used to be, but it is still a very long way way ahead, national and international adjudication from perfect and I don’t know whether it ever would be mechanisms are finding more sophisticated methods for perfect. It is a long struggle and it must continue. I sup- the better protection of indigenous peoples’ rights. pose one issue is that the major threat confronted by indigenous peoples these days tends to come not so much from governments but from multinational corpo- Interview with Gordon Bennet rations because these are the people who want to exploit the land upon which indigenous communities depend. Gordon Bennet is a barrister based in the UK who has And the real problem obviously is that these multina- worked extensively in support of indigenous peoples’ tional corporations are not subjects to International rights for many decades. Most recently, Gordon has Law. There is now a claim movement to transfer the 3 supported the legal argumentation in a complaint to the UN principles developed by John Ruggie into a bind- 80 oversight mechanism of the Organisation for Economic ing treaty which will impose legally enforced obligations Co-operation and Development (OECD) regarding the upon multinational enterprises, and that is a good thing, rights of the Dongria Kondh of India, and he was the but it may take a very long time to go there, so in the main lawyer in support of the San in Botswana in a very meantime, I think, my generation of lawyers has to find significant case concerning their rights to land and natu- other solutions, and this is usually about trying to trig- ral resources after their eviction from their homeland in ger mechanisms inside the international financial insti- the Central Kalahari Game Reserve.1 tutions and in the UN and anywhere else. 4 B. Barreiro: How did you become interested in lit- You mentioned the OECD. That is one possible ave- igation for indigenous peoples’ rights? nue, although that avenue has its problems because the G. Bennet: I was a postgraduate student at Cambridge, OECDprocess is not compulsory, it may result in a in England, when it was suggested to me that research decision but the decision is not binding upon the com- needed to be done on indigenous people’s rights. At that pany. So, you have to depend upon the company’s time, which was late 1970s early 1980s, almost no work desire to protect its reputation for it to comply with the has been done on this issue, so I did some research and decision. And, of course a major problem is that there wrote a short monograph which was published by the are companies which are most likely to trump upon trib- Royal Anthropological Institute in England2 and it was al rights, they don’t care, they do what they want and as really trough that work that I became interested in these long as they can keep their shares they are happy, they issues, and I have remained in this issues for the last 20 are prepared to accept that their reputation may suffer or 30 years or more. I have to work both on indigenous rights and on commercial practice because I have a fam- 3. Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, ily to raise. Now I expend much more time on tribal Guiding Principles on Bussiness and Human Rights: Implementing the rights that I once did, which is good. United Nations ‘Protect, Respect and Remedy’ Framework, Human Rights Council, princ., U.N. Doc. A/HRC/17/31 (Mar. 21, 2011) (by John Ruggie), available at <www. ohchr. org/ documents/ issues/ business/ A. HRC. 17. 31. pdf>. * Lecturer of International Law (Rey Juan Carlos University). 4. OECD States or States adhering to its «Guidelines for Multinational 1. See ‘Gordon Bennett: the go-to tribal rights guy’, in The Lawyer, 31 Enterprises Responsible Business» have the obligation of setting up October 2010, available at: <https:// www. thelawyer. com/ issues/ 1 - National Contact Points (NCPs) for the mediation and conciliation in november -2010/ gordon -bennett -the -go -to -tribal -rights -guy/ >. cases where non-observance of such guidelines may be at stake. See 2. Bennett, Gordon, Aboriginal Rights in International Law, London: Royal OECD ‘OECD, Guidelines for Multinational Enterprises Responsible Anthropological Institute in association with Survival International, Business Conduct Matters’, 2011. Available at <www. oecd. org/ daf/ inv/ 1978. mne/ 48004323. pdf>. ELR April 2018 | No. 1 - doi: 10.5553/ELR.000099 because of the way they treat indigenous communities. wrong understandings of the needs for protecting So that is a problem. But I think this is getting better nature can negatively impact on indigenous peo- because companies do now care much more about their ples’ rights. profile and their reputation and what they do. It is a G. Bennet: I think that conservationists mostly consid- long struggle that is better than it was and it will contin- er themselves to be just conservationists. They think ue to get better, I think, as time goes on. But this is one that they are responsible for conserving natural flora and reason why I have for the most part tried to focus on fauna, they do not see that there is responsibility to pro- national legislation – national litigation –, because I tect the people who are affected by their projects, and it think that in the short term that offers the best road to has taken them a long time to understand that you can- an effective remedy. not separate the two. But if you have a project in a B. Barreiro: But the problem arrives when govern- remote and isolated place in which there are local indig- ments are not willing to apply courts’ decisions. enous populations, any attempt to create a protected How do you see this? area in their land will have enormous repercussions for G. Bennet: It depends which country you talk about them, and I think that the broad response has been to and what kind of resolution you mean. In Botswana, say “well, that is matter of the government, and not for which is the country with which I have most familiarity, us” and it has taken them a lot of time to realize that just I think that, generally speaking, the government would is not the case. If you look again into the Ruggie princi- prefer to avoid bad court judgements. They do not want ples they demonstrate that companies have a responsi- to be seen not complying with court judgements. They bility to respect human rights and they can only do that are very concerned about their reputation as democracy if they firstly consider the likely impact of a project in which the rule of law prevails. They want to encour- upon those rights and if then they take active steps to age foreign investors into the country and they are avoid or mitigate that impact. For the most part they afraid that foreign investors will be discouraged if they have singly failed to do that until now. They will have to see a government which fails to comply with court learn that they need to do this in their own interest as judgements. So that is one situation in which a court much as in the interest of local communities. decision probably can be effective. But, of course there I think that WWF is probably one example of this. are many other countries in which that is less so, but When they went into Cameroon they simply did not still national judgements are so far the best route, I consider the position of the Baka. They thought that the think, to force ruling in favour of tribal communities. It Baka could take care of themselves or that the govern- takes time but it is probably the best frame to do it. ment would take care of them, and it was not part of 81 B. Barreiro: Do you consider that national courts’ their responsibility to consider how the effects of the decisions can have some preventive effects to pro- protected area they wished to create, might affect the tect future encroachments on indigenous peoples’ livelihoods of the Baka. But that is a major mistake. The rights? Baka have paid the price. Something has to be done to G. Bennet: I think that it is very difficult to say but change that and I suspect that the answer must lie with- generally speaking I think that governments are much in the conservation movement itself. In the end, the more aware now than they used to be about the risk of people who support the conservation movements, the court actions. For example, again in Botswana when the individual subscribers who support WWF have to come Bushmen where evicted from the Central Kalahari, the together and insist that their organization conduct its government did not for a minute think that they would affairs in a way that properly respects indigenous com- be sued, that they would be taken to the court.