India’s population includes nearly one hundred million tribals. These numbers are matched only by the remarkable diversity of India’s tribes. The two main regions of a tribal settlement are the country’s northern states bordering China, Burma, The Highlands and plains of its central and southern regions.
Recently, Rasai Khaimah Investment Authority(RAKIA) and Emirati investor, initiated an Investment Treaty Arbitration(ITA) claim against India-UAE Bilateral Investment Treaty(BIT) seeking compensation of $44.71 million. This claim arose after a memorandum of understanding between AP and RAKAI to supply Bauxite to Anrak Aluminium Limited, in which RAKAI has 13% share holding, was canceled, allegedly due to the concerns of the tribal population in those areas.
Similarly, There also occurs a case in 2014, Bear Creek Mining Corporation. These cases present an opportunity to evaluate the impact of the host states under BIT’s on the rights of tribal people.
The United Nations Declaration on the Rights of Indigenous People(UNDRIP) adopted in 2007, for which India voted, recognises among other thing’s indigenous people’s right to self determination, autonomy or self governance and their right against forcible displacement and relocation from their lands (or) territories without free,prior and informed consent.
Protection under Laws
International Labour Organisation(ILO) convention concerning indigenous and tribal people 1989 which is based on the “respect for the culture and ways of indigenous people” and recognizes their “right to land and natural resources and own priorities for development” Judgment, where the Supreme Court declared the transfer of tribal land to private parties for mining was null and void under the fifth schedule. The framework for the protection of the rights of tribal indigenous people is further strengthened by the recognition of Forests Rights Act,2006 which protects the individual and community rights of tribal people in forest area and their right to free and prior informed consent in the event of their displacement and resettlement.
Instead of ensuring that tribals are not ousted from the land to which they are historically and culturally connected, the state becomes more concerned about fulfilling contractual obligations towards the private investor. This means that constitutional and legal principles are discarded. This is due to a number of (MOU)s being signed by natural resources endowed states for developmental projects.
For instance, Chattisgarh has reportedly entered into 121 and 74 such (MOU)s respectively, with various private players as 2014. For economic development states investments not only from domestic investors but also from foreign players whose interest are not only protected under domestic laws but also under the (BIT)s. The purpose of BIT is to give protection to foreign while imposing a certain obligation on the host state.
For instance, if a development project involving a foreign investor in tribal areas leading to the acquisition of tribal land is met with protest, there may be two scenarios.
One, the state government due to socio-legal and political pressures may yield to the demand of the tribal people the detriment of the foreign investor, which is what was happened in the case of RAKAI.
Two, assuming that the government continues with the project, the judiciary may order the cancellation of permits given to the foreign investor, which is what happened in the case of Vedanta in 2013(Orissa Mining Corporation Ltd. MOEF and Ors).In both cases, the foreign investor may drag India to ITA claiming the violation of obligations under BIT, such as fair and equitable treatment(or) indirect expropriation.
What then the possible options available to India to tackle these issue?
First, none of the 80plus BITs Signed by India contains even a single provision on the rights of tribal. Second, the strengthening of BIT must go hand in hand with the implementation of domestic legislation for the protection of rights of tribals, where the states do not consider tribals as impediments in the development process. Third, as far as possible tribal people should be given representation even in investment policy making.