3. Oct 2016
Google is preparing to acquire a large share in Kenya’s prestigious green-energy Lake Turkana Wind Power project, but the deal is mired in accusations of violations of indigenous peoples’ rights and a court case over illegal land acquisition. In a leaked letter obtained by Danwatch, Google investors say they are “deeply concerned”.
Controversy has surrounded the Lake Turkana Wind Power project, a prestige wind power park in Northern Kenya that it is estimated will increase the country’s electricity production by 15-20 percent starting in 2017.
According to the Danwatch investigation A People in the Way of Progress, published in June, the Lake Turkana Wind Power project has failed to provide documentation that local tribes around Lake Turkana were properly consulted before their land was requisitioned by the wind power project. In addition, because the consortium wrongfully failed to recognise the tribes as indigenous peoples, their rights as such were not acknowledged, thereby circumventing UN guidelines and possibly breaching the Kenyan constitution.
Read the investigation here
The story in brief
- In 2017, when 365 Vestas wind turbines are up and running in Northern Kenya, Google will buy Vestas’ 12.8% percent share in the Lake Turkana Wind Power project.
- In a letter to Google CEO Sundar Pichai that was leaked and obtained by Danwatch, 38 Google investors wrote that they are “deeply concerned” about reports of “violence, displacement and environmental damage associated with the Lake Turkana Wind Power project.”
- The Lake Turkana Wind Power project is Kenya’s biggest private investment ever, and it will increase Kenya’s energy output by between 15-20%, which means electricity to 2.5 million additional Kenyans.
- In 2006, the consortium sought the lease of 150,000 acres of land and resettled a small village. Now, the local communities have filed a court case against the Lake Turkana Wind Power project and the Kenyan government over illegal land acquisition.
These potential violations worry Steve Heim, managing director of Boston Asset Management, a longtime investor in Google. Google is currently preparing to buy Vestas’ 12,5 percent share of the wind project for approximately 40 million dollars.
“I think Danwatch’s report should make Google seriously reconsider its plans to buy out Vestas. Google shouldn’t be associated with violations of indigenous peoples’ rights in Lake Turkana,” says Heim.
In addition to his role at Boston Asset Management, Heim is also an expert in the rights of indigenous peoples. He is a former member of the UN Global Compact’s Expert Advisory Group, which authored the Business Reference Guide for the United Nations Declaration on the Rights of Indigenous Peoples.
“It seems to be clear in this case that land was actually given away without anyone being asked. The investors – for example, the large Danish government actors and other agencies – have not made sure there was free, prior and informed consent from the affected communities. They could have made other decisions,” Hein says.
Leaked investor letter to Google CEO
The leaked letter obtained by Danwatch was sent by Sonen Capital, a firm that seeks to use its investments to create positive social and environmental impacts, to Google CEO Sundar Pichai.
In the letter, dated November 9, 2015, thirty-eight investors express their unease over reports of human rights violations in connection with the Lake Turkana Wind Power project.
“We are deeply concerned by reports of violence, displacement and environmental damage associated with Lake Turkana Wind Power project (…) In particular, we are seeking a deeper understanding of Google’s process for ensuring free, prior and informed consent within indigenous communities impacted by Google’s suppliers or by its own projects.”
Free, Prior and Informed Consent
Free, Prior and Informed Consent (FPIC) is a principle that requires consultation in cases of land acquisition by states and companies in order to protect the interests of indigenous peoples as set out in the UN Declaration on the Rights of Indigenous Peoples.
The energy project has been underway for almost a decade, requiring the building of a 200-kilometre road in Northern Kenya and the resettlement of the village of Sarima. Despite its status as a flagship project for the Uhuru Kenyatta government, as well as Kenya’s biggest private investment ever, the consortium seemingly failed to comply with international guidelines before work began.
According to the UN Declaration on the Rights of Indigenous People, projects are required to conduct a consultation before the process of land acquisition begins; this is known as the concept of free, prior and informed consent. However, in the case of the Lake Turkana Wind Power project, no consultations took place prior to 2007, even though the consortium submitted its application for the land lease in 2006.
Who is behind the Lake Turkana Wind Power Project?
The consortium consists of four private companies and three state-run development funds.
- Aldwych International Ltd (UK): 30.75%
- KP&P Africa BV (NL): 25.25%
- Finnish Fund for Industrial Cooperation (FI): 12.5%.
- Norwegian Investment Fund for Developing Countries (NO): 12.5%
- Vestas (DK): 12.5%
- Danish Industrial Fund for Developing Countries (IFU): 6.25%
- Sandpiper: 0.25%
Once the wind turbines are constructed in 2017, Google has agreed to buy Vestas’ share for approximately 40 million dollars.
Source: Document obtained by Danwatch. All share sizes from “No. 1 WTO Ministers visit” p. 62
Same year, the consortium sent its land lease application to the Marsabit County Council in Northern Kenya, requesting 100,000 acres of land, and later increasing its request by an additional 50,000 acres. At that moment, if not earlier, the local government ought to have initiated public consultations. According to UN Guiding Principles on Business and Human Rights, if the state fails to undertake consultations, the responsibility to do so falls to the company.
The first documentation of public consultations dates from 2007. Despite the consortium’s claims that it complied with international guidelines, it has not been able to produce documentation of public consultations that took place prior to 2007, which means that it seems to have failed to live up to the UN requirements for over a year.
Kenya does not recognise the UN’s concept of indigenous peoples. Still, the land question is now in court. The affected communities say that their local government and the wind power project failed to consult them as required by Kenyan law. The accused parties deny all these claims.
Consortium: The tribes are not indigenous people
Another worrisome issue involves the recognition of the tribes. Whether or not the tribes are recognised as indigenous people is highly significant, because it determines what rights they have with respect to the wind project.
Experts on human rights, the Kenyan government, and the consortium are divided on this question.
Three international experts on the rights of indigenous people interviewed by Danwatch for the report A People in the Way of Progress have unanimously agreed that all four tribes in the area around Lake Turkana should be defined as indigenous people. Their argument is that the tribes have lived off the land in the area for generations.
Although the 2010 Kenyan Constitution specifically recognises the rights of minorities and marginalised communities, it does not recognise the concept of indigenous peoples. In 2011, the consortium completed an Indigenous Peoples Policy Framework as required by the World Bank in order to be in compliance with the bank’s guidelines, known as IFC Performance Standards. The consortium concluded in that framework report that there were no indigenous peoples in the project-affected area.
“Project screening and Environmental and Social Impact Assessments (ESIA) have been undertaken, and Indigenous Peoples (…) have not been identified within the footprint of the Project.”
According to the consortium, the only indigenous peoples in the project area are the El Molo, but because they live 70 km away from the wind farm, the project determined that they are not affected by it. The three other local tribes – Rendille, Samburu and Turkana – are not recognised by the consortium as indigenous peoples, even though they were recognised as such by the African Commission on Human and Peoples Rights in 2006.
This makes the rights of indigenous peoples the second question on trial in the conflict between the Lake Turkana Wind Power project, the government and the local communities.
Are these people indigenous?
These people live by the shores of Lake Turkana in Kenya. They consider themselves as indigenous people. The consortium and the Kenyan government do not agree with them. Experts in human rights criticise the consortium and government.
There is no specific definition of indigenous peoples, but they share a number of characteristics:
- According to the United Nations Declaration on the Rights of Indigenous Peoples, indigenous peoples are mainly small populations relative to the dominant culture in their country.
- They usually have their own languages as well as distinct cultural traditions that are still practiced.
- They have (or have had) their own land and territory, to which they are tied in myriad ways.
- Most importantly, they define themselves as indigenous peoples. Self-determination is central.
Experts criticise: Not up to the consortium
In the investigation A People in the Way of Progress, Birgitte Feiring, an adviser on sustainable development at the Institute for Human Rights in Copenhagen, disagrees with the view of the consortium, asserting that this determination is not one for companies to make.
“First of all, it is not a company’s responsibility to say who are indigenous people and who are not. Instead, we have a system of internationally-recognised objective and subjective identification criteria. The objective criteria are whether a people have a historic presence in the area, predating the creation of a state, colonisation or conquest. I don’t think anyone would question that in this case,” Feiring says.
Steven Heim agrees with Feiring, emphasising that the UN Declaration on the Rights of Indigenous Peoples is “very explicit about free, prior and informed consent,” and that it applies to the situation at Lake Turkana.
“Saying that three out of four pastoralists are not indigenous peoples, and that the last group doesn’t count because they live 70 km away, is just not right. I agree with the different experts cited in the report: it is not up to the company to say who are indigenous peoples or not.”
Lake Turkana Wind Power claims that the project is in compliance with the performance standards of the International Finance Corporation (IFC). However, experts in IFC Performance Standards, indigenous peoples’ rights, and Kenyan land rights tell Danwatch that if there was no free, prior and informed consent, then it is not possible for the wind power project to be in compliance with either the IFC standards or with international human rights standards.
Ensuring rights of indigenous peoples
According to the UN’s Guiding Principles on Business and Human Rights, it is the state’s responsibility to protect human rights, and the company’s responsibility to respect them.
Steven Heim acknowledges that the responsibility of states and companies to obtain free, prior and informed consent from local communities is a “complicated issue,” and in this case, it failed.
Heim urges investors “to rethink what they are doing and make the process better.”
“They have to realise that it was not legal according to the constitution. Even worse, if the court rules in favour of the project, they will still have the opposition of many indigenous peoples; it goes against human rights to go forward with this.
“So, even if it slows down the project at this point, the consortium should try to renegotiate with the communities, for example regarding compensation. They have a long-term human rights responsibility to address, and even if they win legally, they are not going to win on the rights of the affected people.”
Google has not responded to Danwatch’s request for comment.
The parties to the court case filed by local communities against the Lake Turkana Wind Power project, the government and the local county will reconvene in Kenya on November 9, 2016.