Dear Mr. Elon Musk: A Letter From Russian Indigenous Peoples About Nickel Mining Pollution

A network of independent experts, activists, leaders, and organizations of Russian indigenous peoples has called on Tesla CEO Elon Musk to boycott a Russian mining company until it meets specific ecologically-sound conditions. The letter to Musk acknowledges that Nornickel is an international leader in nickel production but is “also a global leader in environmental pollution.”

Nornickel’s smelting processes have resulted in environmental degradation on the Taimyr Peninsula, including a 20,000 ton diesel fuel spill into a river in the fragile Arctic ecosystem. “The lands of indigenous people appropriated by the company for industrial production now resemble a lunar landscape, and traditional use of these lands is no longer possible,” the letter to Musk reads.

Aborigen Forum is an informal association of 39 independent experts, activists, leaders, and organizations of Russian indigenous peoples from 14 regions of the North, Siberia, and the Far East of the Russian Federation. The Arctic region environment is particularly vulnerable to pollution, and it can take decades to recover from a single environmental incident.

The main areas of activity of the Aborigen Forum are the protection and implementation of the rights of Russian indigenous peoples, analysis of legislation, monitoring places of residence and economic activity, development of partnerships with other organizations, international cooperation, and work with authorities at all levels.

An Open Letter & Plea for Mining Environmental Stewardship

With mines and metallurgical factories on the Taimyr Peninsula and in the Murmansk region, Nornickel is the world’s largest nickel producer. Yet the Aborigen Forum describes Nornickel’s environmental pollution there as a “routine occurrence,” pointing to a river oil spill on the Taimyr Peninsula as an ongoing environmental disaster, “but not an isolated incident.”

Musk made a plea in late July for miners to produce more nickel, which is a key ingredient in the batteries that power the company’s electric cars. He warned that the current cost of batteries remains a big hurdle to the company’s growth.

Nickel increases battery density so that electric cars have greater range on a single charge.

“Tesla will give you a giant contract for a long period of time if you mine nickel efficiently and in an environmentally sensitive way,” Musk said during a Q2 2020 post-earnings call.

In a letter to Musk, the Aborigen Forum alludes to Musk’s promise to source in “an environmentally sensitive way” and urges Tesla not to buy nickel, copper, and other products from Nornickel until it conducts a full and independent assessment of the vast environmental damage caused by its production.

The Aborigen Forum asks that the following conditions be met if Tesla business with Nornickel is implemented. Nornickel would need to:

  • Conduct a full and independent assessment of the environmental damage of mining for nickel and other metals in Russia’s Taymyr Peninsula and Murmansk Oblast. Such an assessment would determine the harm from the ongoing Norilsk diesel oil spill and consider the damage done by industrial production to traditional economic activities of indigenous peoples, an on-going environmental disaster, “but not an isolated incident.”
  • Compensate indigenous communities for the damages done to their traditional way of life.
  • Prepare and implement a plan for re-cultivating contaminated lands in the Taymyr Peninsula and Murmansk Oblast.
  • Revise its policies for engaging with indigenous peoples. The new guidelines would be informed by the United Nations Declaration on the Rights of Indigenous Peoples, including the need to obtain free and informed consent prior to the approval of any project affecting indigenous lands or territories and other resources, particularly in connection with the development, utilization, or exploitation of mineral, water, or other resources.

The letter states:

“We are aware of Tesla Inc.’s policies on human rights. The Company’s Code of Conduct for suppliers prescribes minimizing negative impact on the environment in all activities in order for the global economy to transition to sustainable energy. We call on Tesla, Inc. to refrain from cooperation with Nornickel and announce this decision publicly, until the abovementioned policies are implemented by the Russian nickel supplier.”

Elon Musk’s Call for Increased Nickel Mining

Electric vehicles, which consume a much smaller amount of nickel than traditional industries such as stainless steel makers, are forecast to be the quickest growth market for nickel miners.

“The real limitation on Tesla growth is cell production at affordable price. That’s the real limit,” Musk reiterated. He expanded that the company would expand its business with Panasonic (6752.T) and CATL (300750.SZ) and “possibly with others.”

Tesla’s needs for more nickel is part of a company plan to increase production of its catalog of all-electric vehicles as well as its solar projects. Tesla currently sources nickel-cobalt-manganese (NCM) batteries from South Korea’s LG Chem Ltd (051910.KS) and nickel-cobalt-aluminium (NCA) batteries from Japan’s Panasonic Corp (6752.T). Reuters reports that these companies indirectly buy nickel from mining companies in a long auto supply chain, yet Tesla doesn’t disclose which nickel miners are in that supply chain.

The International Nickel Study Group (INSG) estimates the global refined market was in a supply surplus of 57,300 tons after the first 5 months of the year, representing a sharp turnaround from a deficit of 31,500 tons at the same point of 2019. London Metal Exchange (LME) nickel stocks are plentiful at 234,636 tons, and LME time spreads continue to trade without delay, contrasting with a tightening trend in other metals such as copper.

Nornickel prides itself on having access to a “unique mineral resource base” with “active development of first-class assets in Russia,”  “constant expansion of the resource base,” and “geological exploration (that) ensures the maintenance of the volume and optimal structure of mineral reserves.” And they’re ravaging native natural resources.

Nornickel ranks among the top 10 copper producers. It also produces cobalt. All 3 minerals are important components in the current booming battery production for electric vehicles.

Local Knowledge: In Mining & Life | Russian Indigenous Peoples

In an interview with The Barents Observer, Dmitry Berezhkov, an expert working with the Aborigen-Forum, indicates many obstacles exist for indigenous peoples in the region to have their voices heard. “It is not only difficult, it became impossible during the recent years,” he says. “Russia is building a new Arctic industrial reality rapidly, and indigenous people are not considered in these activities at all.”

“In reality, they don’t pay any attention to indigenous peoples’ rights on the ground,” he continues. “We consider Musk’s request to nickel producers as an occasion to pay attention to the environmental degradation of indigenous peoples’ traditional lands.”

Indigenous peoples who live in the Murmansk region are the Sámi, and the Nentsy, Nganasan, Entsy, Dolgan, and Evenki live on the Taimyr Peninsula in Siberia. These communities have preserved the traditional life, culture, and economy of northern peoples, including reindeer herding, hunting, and fishing. Indigenous people view a clean environment as a key factor for survival in harsh northern conditions.

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Joint statement with Arctic Consult on the decision of the Russian Government to shut down the Centre for the Support of Indigenous Peoples

6 November 2019 Moscow regional court sustained a claim of the Russian Ministry of Justice and made a decision on forced liquidation of the Russian non-governmental organization the Centre for the Support of Indigenous Peoples of the North, which was led by prominent human rights defender and civic leader, a member of the UN Expert Mechanism on the rights of indigenous peoples Rodion Sulyandziga.

That decision of the Russian government fits well with the general repression policy of the Russian authorities, security and law enforcement agencies (siloviki) towards the civil society in Russia. As we know just several days before the decision about closure of the Center for the Support of Indigenous Peoples of the North Russian authorities made a similar decision on forced liquidation of one of the oldest human rights organization in Russia «For the human rights» which was led by well known Russian scientist and human rights defender Lev Ponomarev. And before that because of the pressure from the Russian authorities, a lot of other independent human rights or environmental non-governmental organizations were liquidated in Russia, announced «foreign agents» or closed because their leaders had their own public opinion which is not complying with the official agenda of the Russian authorities. A lot of indigenous non-governmental organizations had suffered also because of such policy of the Russian government including Nenets information center «Yasavey-Manzara», Kamchatka information center «Lach»; Russian foundation for the development of indigenous peoples «Batani», Evenk community «Dylacha»; Shor local organization «Kasaz and Shor people revival» and many others. Many indigenous leaders and activists in Russia who fought for the rights of their communities on lands, resources, and self-determination were subjected to repression and harassment by Russian officials and enforcement bodies’ representatives including public bullying, smear companies in media, criminal prosecution, illegal interrogations, and searches, jailing etc. These facts are well known and we don’t want to specify them all in this short statement. We want to draw attention to another prominent fact.

As we all remember 1 November 2012 Russian Ministry of justice on the ground of «technical mistakes» of the organizational statute and its «non-correspondence with the federal legislation» had stopped the functioning of the Russian Association of the indigenous peoples of the North (RAIPON). Those days Russian bureaucrats founded «mistakes» in a statute of the organization, which had been successfully working for 22 years since 1990. And we remember well as Rodion Sulyandziga who was one of the leaders of RAIPON those days organized an international campaign with the aim to protect RAIPON and not allow the Russian government to close this organization. Rodion Sulyandziga was a person who organized the RAIPON’s extraordinary congress to changed the statute of RAIPON according to the requirements of the Russian authorities, arranged all litigation proceedings with the Ministry of justice and paid all efforts to not allow to close nationwide organization of indigenous peoples of the Russian North, Siberia and the Far East.

And how do representatives of RAIPON behave today when Rodion himself needed help and Russian bureaucratic machine is liquidating his own organization?:

  • Grigory Ledkov (President of RAIPON): «We are living in a rule-of-law state and we have to follow the orders of the law, including the orders of the Ministry of justice and their requirements to the organizations’ statutes. The work with federal and regional laws, organizing a give and take dialog with authorities and work with indigenous communities on the ground is all the way more difficult thing than hyping in the Internet and social networks.»
  • Alexander Novyukhov (RAIPON vice-president in Ural federal district): «There is no political motivation in the liquidation of this organization. We are regularly meeting with activities of such «human rights organizations» and other fake experts. Their main activity aims to destroy the work of generally accepted and officially legitimized indigenous leaders and to undermine the authoritative information.»
  • Vladimir Klimov (vice-president of RAIPON on interregional cooperation): «Somebody says that one of the leading indigenous rights organizations was closed — that’s an overstatement. We don’t need to search for some enemies acting through government or the Ministry of Justice — I think this is just bad management (from Rodion side). He has to keep a strict watch over his own documents.»

Dozens of media in Russia and around the world including leading information agencies have written about the liquidation of the Center for the Support of Indigenous Peoples of the Russian North. And only RAIPON’s representatives and several other pseudo-indigenous rights organizations from Russia commented this act of injustice as a «bad management» and a wave of a rush of indignation in civic society because of this action of the Russian government as a «hyping in social networks».

Considering this we declare that at present, RAIPON, which is completely controlled by the Russian authorities, has finally discredited itself and has no right to represent indigenous peoples of Russia and to make statements on their behalf. We strongly urge representatives of all organizations that have any relations with RAIPON at any level, including representatives of States, international organizations and indigenous organizations working at the UN and at the Arctic Council, to take this consideration into account in their future activity.

Pavel Sulyandziga (Batani foundation), Dmitry Berezhkov (Arctic Consult)

The Centre for the Support of Indigenous Peoples published a book about the Bikin Udege

The Centre for the Support of Indigenous Peoples of the North (CSIPN) published a book about the Udege people, which tells about the history of the Udege, about the Ussuri taiga in the Bikin River valley, which scientists call “the Russian Amazon”, the Bikin Udege, the creation of Krasny Yar, and the  Bikin people. For the first time, the book of this kind was compiled by the residents of the Udege village of Krasny Yar. The book gives memories and legends of the Udege people about the origin of their families, describes the history of the Krasny Yar and the current situation of the Bikin Udege. As an Annex to the book, the Center published “Catalogue of products and services of Bikin Udege”.

The Center also released the film “Bagdifi” about Bikin and the Udege. There are a lot of interesting things to learn by reading these books and watching the movie.

It is significant that the Center published the book in the same year when the current territory of the Bikin Udege is included in the UNESCO List of World Natural Heritage sites, for which the Udege fought for almost 20 years to create.

The first Cooperation Agreement

The first Cooperation Agreement of the newly established Batani international Indigenous Fund for Development and Solidarity has been signed with the Norwegian consulting company “Arctic Consult,” whose mission is to provide legal and economic advice to indigenous communities.

Arctic Consult will assist with the research project “Why indigenous rights don’t work in Russia?” This project involves a series of studies about the implementation of state policies that affect indigenous peoples, as well as the problems of the implementation of the rights of indigenous peoples to self-determination and access to lands and resources in the Russian Federation. The project will prepare science-based proposals for the development of a strategy for the sustainable development of the indigenous peoples of Russia, taking into account their right to self-determination.

Within the framework of the project, the partners intend to develop a new innovative methodology for collecting and processing information on the socio-economic development of the indigenous peoples of Russia and their self-government, the implementation of state policy towards indigenous peoples, as well as violations of their rights by public authorities and businesses.

An Open Letter to States Concerning an International Legally Binding Instrument on Business and Human Rights

As scholars and experts in the fields of public international law, human rights law, business and human rights, and international economic law, we have closely followed and analysed the work of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG) established by Resolution 26/9 of the United Nations Human Rights Council in June 2014. Some of us have also participated, in various capacities, in the first three sessions of the OEIGWG.

According to Resolution 26/9, the mandate of the OEIGWG is “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” Based on the discussion held during the first three sessions as well as a series of open informal consultations held in 2018, the Chairperson of the OEIGWG published a zero draft of an international legally binding instrument on 19 July 2018 and a zero draft of an optional protocol to the proposed instrument on 4 September 2018.

We note that there have been differences in opinion among states regarding the need for such an instrument and its scope as well as content. We also note some states who are of the view that the mandate of the OEIGWG was limited to holding three sessions and that a new Human Rights Council resolution would be required to hold the Fourth Session, which is scheduled to take place during 15-19 October 2018.

This open letter addresses these issues with a view to assist states as well as other relevant stakeholders in engaging with the ongoing process (including the Fourth Session of the OEIGWG) in a constructive and informed manner.

International Legally Binding Instrument as a Necessary Complement to Existing Instruments

We acknowledge the positive contribution made by the UN Guiding Principles on Business and Human Rights and other initiatives in providing guidance on the relationship between business and human rights. Significant gaps, however, remain in ensuring that businesses respect human rights and effective remedies are available to victims of business-related human rights abuses. There is also no legally binding international framework to facilitate mutual cooperation and international assistance among states to hold business enterprises accountable for human rights abuses. We believe that an international legally binding instrument would strengthen and complement existing regulatory initiatives and evolving good practice regulation at the national level.

States should Negotiate in Good Faith on the Basis of the Zero Draft

We note that the zero draft of an international legally binding instrument as well as its optional protocol build on existing human rights treaties and other international instruments binding on states. The zero draft seems to reflect the input provided by states and other stakeholders. All states should therefore engage in the process of negotiating an international legally binding instrument in good faith.

Even though we consider that the zero draft needs substantial refinement and revisions to adequately fulfil the mandate of the OEIGWG, it provides a valuable basis for further negotiations. We believe that if future negotiations are conducted in good faith, this should lead to a result which reflects the common goals of all stakeholders to promote respect for human rights by business and improved access to effective remedies for victims of business- related human rights abuses.

Resolution 26/9 as Sufficient Legal Basis for Holding Further Sessions

In addition to establishing the mandate of the OEIGWG, Resolution 26/9 also provides that the two first two sessions of the OEIGWG “shall be dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument”. The Chairperson-Rapporteur’s was to “prepare elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session”.

As further sessions are not explicitly mentioned in the text of Resolution 26/9, there have been questions as to whether the OEIGWG’s mandate allows holding a Fourth Session (and subsequent sessions). At the outset, it should be noted that even though the Resolution only refers to three sessions, it does not say that these would be the only sessions. In fact, the context, object and purpose of Resolution 26/9 suggest that the mandate of the OEIGWG is not limited to just three sessions. As stated in paragraph 1, the OEIGWG’s “mandate shall be to elaborate an international legally binding instrument”, not just have three sessions. Paragraph 3 of the Resolution further provides that the elements to be prepared by the Chairperson-Rapporteur should serve as the basis of “substantive negotiations”. It is thus clear in our view that the mandate of the OEIGWG is not confined to preparing the background for such negotiations but includes conducting such negotiations on a substantive level. This conclusion is also supported by the open-ended nature of the IGWG.

While it may have been the practice in the past that the Human Rights Council would revisit and renew the mandate of an OEIGWG in similar cases, there is no legal requirement to do so. In the absence of a decision of the Human Rights Council to amend the mandate of the OEIGWG, the Fourth Session and any subsequent session rest on the solid legal basis of Resolution 26/9.

In view of the above observations, we strongly urge all states to engage constructively and in good faith with the process of negotiating an international legally binding instrument. By doing so, states will demonstrate their continuous commitment to respect, protect and fulfil all human rights amidst the challenges of the 21st century.

1 October 2018

Signatories (institutions are for identification purposes only)