Chapter 9: Investigations and complaints

Chapter 9:
Investigations and complaints

Consider individual complaints and make recommendations for redress and remedies to appropriate authorities

Consider complaints by groups or communities, in recognition of the collective rights held by indigenous peoples

Refer cases to relevant authorities, including government agencies, parliament, the judiciary and prosecuting authorities

Seek redress or remedies on behalf of complainants through courts and tribunals

Advise courts and tribunals as amicus curiae

Issue legally enforceable orders and binding decisions

Order that violating authorities pay compensation to victims

For NHRIs outside the Asia Pacific region, appear before regional bodies such as human rights courts.²²⁷

In 2011, the Chairperson of the Commission on Human Rights of the Philippines, Loretta Ann Rosales, conducted a press conference to announce the Commission’s findings into its investigations into complaints of violations of indigenous peoples’ human rights allegedly perpetrated by Oceana Gold, a foreign-owned mining company operating in the Philippines.228 Chairperson Rosales stated: “The history of development in the Philippines has been marred by serious environmental degradation caused by economic activities accompanied by and related to violations of civil and political rights. Indeed, those who stand up against development aggression expose themselves to harassment by government or project authorities. Nothing compares however to the sufferings endured by the indigenous peoples in whose community lands these projects are made to be located. They lose their homes, livelihood and property, but more grievously their connection to the land and their very identity. When this happens the Commission on Human Rights should not stand idly by. Neither should the government.”

In June 2008, reports and complaints were filed with the Commission alleging that Oceana Gold had “illegally and violently demolished some 187 houses belonging to indigenous peoples in Dipidio”. According to Chairperson Rosales, the demolitions were “allegedly done despite failing to secure writs or special orders of demolition from the court, unaccompanied by the Sheriff, without payment of just compensation, and without providing alternative options for relocation and resettlement. These demolitions were reported to have been accompanied by unnecessary violence and destruction: residents who resisted and tried to save their homes were beaten, including their neighbours who helped them; houses had been bulldozed off cliffs and set on fire. It was further alleged that Oceana Gold fenced off large sections of the roads and pathways which community residents have relied upon for the past 30 years to transport produce from their farms to the market. It was also reported that (Oceana Gold) has set up checkpoints around the Barangay, causing them difficulty in moving about, resulting in the unjust restriction of their social and economic activities. Moreover, it was alleged that the Philippines National Police’s Regional Mobile Group serves as a private security force of (Oceana Gold), with their officers being stationed inside the facilities of (Oceana Gold).” Based on the exercise of its investigative powers and mandate, the Commission found sufficient evidence to make a finding that Oceana Gold had “violated the right to residence, the right to adequate housing and property rights; violated the right to freedom of movement and the right to be free from arbitrary interference; violated the right to security of the person of the affected residents; and violated the indigenous community’s right to manifest its culture and identity”. The Commission further found that the Philippines National Police’s Regional Mobile Group had violated its internal operational procedures by “carrying high-powered firearms and applying unnecessary and unreasonable force”. In light of the findings from its investigations, the Commission issued a unanimous resolution which recommended that the Government “consider the probable withdrawal of the Financial and Technical Assistance Agreement granted to the foreign company in view of the gross violations of human rights it has committed”. The Commission also requested all concerned government agencies to submit reports to the Commission, within 30 days of the date of the Commission’s resolution, “regarding concrete actions they have taken to respect, protect and fulfil the rights of the affected indigenous peoples in Dipidio” and to “continue monitoring the human rights situation in Dipidio”. The Commission also advised the Oceana Gold mining company to “consider the Commission’s findings and conduct a policy reorientation on the conduct of mining operation taking into conscious account the observance of human rights of the community involved”. Furthermore, the Commission’s own regional office was directed to “actively advocate for the human rights of the affected community and to take every step possible to avoid the occurrence of further violence and oppression”.

Key features of an effective complaints investigatory mechanism have been identified as:

Adequate legal capacity

A defined and appropriate set of priorities

Organizational competence

The political will to pursue its work.

HEARING COLLECTIVE COMPLAINTS229 In 2008, the Canadian Human Rights Act was amended to include the following provision: In a complaint made under the Canadian Human Rights Act … this Act shall be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality.230 The Canadian Human Rights Commission has developed operational guidance on how it will apply the amendment. This guidance is based on research commissioned by experts in dialogues with Elders and legal practitioners, facilitated by the Indigenous Bar Association. AMICUS CURIAE OR INTERVENER IN COURT PROCEEDINGS The Nigerian Human Rights Commission intervened in a court case to seek an injunction to prevent the demolition of indigenous peoples’ land. The Defensor del Pueblo de la República de Ecuador has raised concerns with the courts in a number of criminal proceedings instituted against indigenous leaders or activists who have been charged with terrorism or other offences as a result of social protest. This has led to behaviour change in instances where violations of due process have been detected.