The U'wa and Occidental Petroleum: Searching for Corporate Accountability in Violations of Indigenous Land Rights

Abstract

Corporate actors significantly impact indigenous peoples'' domestically and internationally recognized land rights. For half a century, the pursuit of oil by Royal Dutch Shell in the Niger Delta has produced a cycle of violence with lasting effects on the Ogoni peoples'' occupancy, use, and control of their traditional lands and resources, and thereby, their way of life. In the United States, mining by Barrick Gold Corporation, a Canadian multinational corporate actor, has threatened the Western Shoshone peoples'' ability to continue the traditional use of their lands for cultural, religious, and food subsistence activities. In the Philippines, despite recent legislative enactments requiring the informed consent of indigenous peoples prior to the exploration and development of natural resources on their lands, indigenous resistance to extractive projects has been overridden by the mining interests of TVI Pacific, a Canadian company, and Crew Development Corporation, a Norwegian Canadian company. Similarly, despite constitutional guarantees regarding the protection of indigenous territories in Colombia, the U''wa peoples continue to experience threats to the preservation of their lands and resources by oil companies such as Occidental Petroleum of the United States. Ultimately, challenges to the observance of indigenous peoples'' land rights may persist where corporate actors are able to obviate any meaningful accountability to indigenous peoples. Indeed, a breadth of scholarly literature suggests that corporate actors often bypass any meaningful liability under both domestic and international legal accountability frameworks for activities that could constitute violations of indigenous peoples'' land rights. Broadly, the following questions could serve to frame further analyses of such an accountability gap across the domestic-international divide. First, who are the actors and what are the interests that contribute to the existing accountability gap with respect to corporate activity that violates indigenous peoples'' recognized land rights? Second, what possibilities exist for assigning meaningful corporate accountability for such activity within existing domestic accountability frameworks? Third, could the international system constitute an effective site for the assignment of corporate accountability in this context?This essay undertakes a representative case study of the U''wa peoples'' resistance to oil activities by Occidental Petroleum, and through such a case study, provides a focused analysis of corporate accountability for violations of indigenous peoples'' land rights across the domestic-international divide. Engaging this analysis through the U''wa case study is particularly useful because the U''wa sought recourse for alleged violations of their land rights under both domestic and international accountability frameworks. Part I of this essay examines the interests of the primary parties involved in the oil exploration project and reviews the domestic and international avenues of legal recourse that were available to the U''wa against Occidental Petroleum. Drawing conclusions from this case study, Part II analyzes the scope and potential limits of existing domestic approaches to corporate accountability for violations of indigenous peoples'' land rights. Part III further analyzes the scope and potential limits of existing approaches to corporate accountability under international law. This essay concludes that domestic avenues of corporate accountability available to indigenous peoples are often ineffective where state and corporate interests are aligned in the execution of large-scale land development projects, particularly projects involving natural resource extraction. As a result, this essay prompts further inquiry into potential international legal responses to indigenous peoples'' claims regarding the ownership, occupancy, use, and control of their traditional lands and natural resources vis-a-vis corporate actors. To that end, the conclusion identifies remaining questions that should be addressed in the context of theorizing international approaches.