Academic journal article Energy Law Journal

Land in the Second Decade: The Evolution of Indigenous Property Rights and the Energy Industry in the United States and Brazil

Academic journal article Energy Law Journal

Land in the Second Decade: The Evolution of Indigenous Property Rights and the Energy Industry in the United States and Brazil

Article excerpt

"[T]here is no quicker way to dampen the ardor of the great majority of businesses willing to venture large financial sums to support cutting-edge activity than to inform them that the law surrounding such is rife with ambiguity."1

I. INTRODUCTION

In December 2004, the United Nations declared that the years 2005-2015 would mark the Second International Decade of the World's Indigenous People (Second Decade).2 As this Second Decade comes to a close, the rights of indigenous peoples have achieved wide acceptance, yet the practical implications of these rights remains unsettled and open to varied interpretation by States, the energy industry, and other interested parties.3

For the energy industry, the development of indigenous property rights may present important strategic opportunities to work directly with new tribal partners, who have been granted the rights of self-determination for the development of their lands and resources through Convention 169 of the International Labour Organisation and the 2007 U.N. Declaration on the Rights of Indigenous Peoples.4 Conversely, the new landscape of indigenous property rights may present substantial financial risk and legal ambiguity for members of the energy industry.5 For example, the exploration and production of oil in Ecuador from the 1960s through the 1990s resulted in the pollution of watersheds used by indigenous tribes.6 Twenty-five years later, after litigation in multiple countries, with judgments totaling almost twenty billion dollars, the rise of indigenous property rights may place the energy industries' past practices in the legal crosshairs.7 A comprehensive understanding of the international trend towards the expansion of indigenous rights and the effects of these rights on the possession of land and natural resources could help foster an environment of mutual benefit and progress, thereby reducing economic and social consequences.8

An increasingly prominent figure in the production of hydrocarbons,9 Brazil has become a contemporary reenactment of conflicts long at issue in the United States regarding indigenous property rights. Brazil and the United States share a common history of colonization, native displacement, slavery, war, independence, and a surge of economic development and industrialization.10 By using the United States as an analogue, this paper lays out the development of indigenous property rights in Brazil, contrasts the past and present policy differences between the two countries, and assesses prospects for future cooperation between the energy industry and indigenous populations.

By utilizing a macro- and micro-analysis of indigenous property rights, this paper will address the global shift in policy and the local development of these rights in the United States and Brazil. The first part of this comment will present the history of indigenous property rights chronologically, incorporating the related histories and policies of the United States and Brazil from the colonial era until the most recent wave of development in the Second Decade. The second part of this comment will analyze the historical information presented, then set forth the likely trajectory of indigenous property rights globally and for the United States and Brazil. The final section of this article will discuss theories and strategies that may reduce the risk of loss or litigation against the energy industry when investing in projects on indigenous lands worldwide.

II. BACKGROUND

A. Historical Indigenous Property Rights and the Discovery Doctrine

1. Discovery of the Americas and Subsequent Colonialism

Prior to the arrival of Christopher Columbus in 1492, indigenous peoples lived throughout the New World, exercising their rights to the land and its resources according to their cultures and customs. The New World eventually came under the control of the British, Spanish, Portuguese, and French governments, ultimately becoming the modern countries comprising North and South America. …

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