Indigenous Peoples Rights & Environmental Protection PDF

Rights of indigenous peoples as a tool for environmental protection Karolina Žákovská 9 December 2024 IEELP, LL.M. Programme Faculty of Law Charles University in Prague Indigenous peoples and environmental protection INTRODUCTORY REMARKS  more than 5000 indigenous peoples in more than 90 countrie...

Rights of indigenous peoples as a tool for environmental protection Karolina Žákovská 9 December 2024 IEELP, LL.M. Programme Faculty of Law Charles University in Prague Indigenous peoples and environmental protection INTRODUCTORY REMARKS  more than 5000 indigenous peoples in more than 90 countries (more than 476 million indigenous people)  importance of the environment for their traditional culture and way of life  risks: territorial development, intensive exploitation of natural resources (wood, oil, gold, precious stones etc.) Example: Belo Monte Dam in Brazil 1 Indigenous peoples and environmental protection TERM “INDIGENOUS PEOPLES”  indigenous peoples vs indigenous people, populations or tribes (term peoples implies – among others - the right to self-determination)  no universally accepted definition exists, main characteristics: - historical continuity with pre-invasion and pre-colonial societies (x does not apply for all indigenous peoples) - close relationship with “their” traditional land and natural resources - non-dominant sectors of society (→ minori es) - determined to preserve, develop and transmit to future generations their ancestral territories and their ethnic identity + self-identification as indigenous at both individual and group level (essential aspect!) Indigenous peoples and environmental protection TERM “INDIGENOUS PEOPLES” Binding definition in ILO Convention No. 169 on Indigenous and Tribal Peoples (ITPC, 1989, in force 1991) , art. 1 al. 1 “This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.” 2 Indigenous peoples and environmental protection CHARACTER OF INDIGENOUS PEOPLES´ RIGHTS Collective rights of indigenous peoples → belong to indigenous community as a whole (e.g. right to use tradi onal lands and resources); prerequisite: recognition of the legal personality of indigenous peoples x individual rights of members → belong to individuals  “true” individual rights (e.g. right to life, right to education)  individual rights with a collective dimension = rights that a member can only enjoy together with other members (e.g. cultural rights) Collective and individual rights may either strengthen each other or be conflicting. Indigenous peoples and environmental protection USE OF INDIGENOUS PEOPLES´ RIGHTS AS A TOOL FOR ENVIRONMENTAL PROTECTION Basic approaches :  use of collective indigenous peoples´ rights, including right to self- determination  use of cultural rights of individual members of (ethnic) minorities  use of collective (community) property rights in relation to land and other resources 3 Indigenous peoples and environmental protection COLLECTIVE INDIGENOUS PEOPLES´RIGHTS ITPC + UN Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007) Right of peoples to self-determination = right of a people to freely determine its political status and freely pursue its economic, social and cultural development  basis of all other collective rights  appears in both international covenants of 1966 (art. 1 al. 2) x for indigenous peoples provided for expressis verbis only in UNDRIP  only internal one as far as indigenous peoples are concerned (cf. art. 4 and 46 al. 1 UNDRIP) Other collective rights with environmental dimension (ITPC, UNDRIP) → number of rights (e.g. rights to resources including land, right to have the environment protected, protection of traditional activities, protection of spiritual relationship towards nature) In theory the strongest approach x use in practice limited (ITPC has only 22 State Parties, UNDRIP is not binding, ICCPR does not allow collective complaints) Indigenous peoples and environmental protection COLLECTIVE INDIGENOUS PEOPLES´RIGHTS International Covenant on Civil and Political Rights (1966) Article 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. 4 Indigenous peoples and environmental protection COLLECTIVE INDIGENOUS PEOPLES´RIGHTS Specific regional regime: African Charter of Human and Peoples´ Rights (Banjul Charter, 1981, in force 1986) → provides for both individual and collective rights (including the right of all peoples “to a general satisfactory environment favourable to their development”). Peoples´ rights not originally intended for minority indigenous communities X their application to ALL peoples recognised by the African Commission on Human and Peoples´ Rights Important cases:  Ogoni case (Nigeria, complaint no. 155/96, decision of 27 October 2001) → viola on of both individual and collec ve rights of Ogoni People as a consequence of an irresponsible oil exploitation organized by the government  Endorois case (Kenya, complaint no. 276/03, decision of 25 November 2009) → viola on of both individual and collec ve rights of Endorois People as a consequence of (i) their forced displacement in the 70s for creation of a game reserve and of (ii) a ruby mining by a private company (State concession from 2002) Indigenous peoples and environmental protection COLLECTIVE INDIGENOUS PEOPLES´RIGHTS “From all the evidence (both oral and written and video testimony) submitted to the African Commission, the African Commission agrees that the Endorois are an indigenous community and that they fulfil the criterion of ‘distinctiveness.’ The African Commission agrees that the Endorois consider themselves to be a distinct people, sharing a common history, culture and religion. The African Commission is satisfied that the Endorois are a “people”, a status that entitles them to benefit from provisions of the African Charter that protect collective rights. The African Commission is of the view that the alleged violations of the African Charter are those that go to the heart of indigenous rights – the right to preserve one’s identity through identification with ancestral lands.” (African Commission decision in the Endorois case, para. 162) 5 Indigenous peoples and environmental protection CULTURAL RIGHTS OF INDIVIDUAL MEMBERS Legal basis: Art. 27 International Covenant on Civil and Political Rights (1966, in force 1976) “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” Important decisions of the UN Human Rights Committee (violation of art. 27 IPPCR)  Chief Bernard Ominayak and members of the Lubicon Lake Band v. Canada (communication no. 167/1984, decision CCPR/C/38/D/167/1984 of 1990) → timber concessions and expropriation of indigenous land for commercial interest (oil and gas exploration)  Ángela Poma Poma v. Peru (communication no. 1457/2006, decision CCPR/C/95/D/1457/2006) →withdrawal of water from indigenous land having for consequence the gradual drying out of the wetlands where llama-raising is practiced in accordance with the traditional customs of the Aymara people → traditional way of life is protected as part of the right to enjoy one´s own culture together with other members of the group Indigenous peoples and environmental protection COLLECTIVE PROPERTY RIGHTS Right to the peaceful enjoyment of one´s property  seems to be a “perfect” right for protection of lands and other resources traditionally used by indigenous peoples  BUT, it is generally understood as an individual right in accordance with the traditional Roman law conception of property as the owner´s dominion (absolute power) over a thing x relationship of indigenous people (and peoples) to nature is different  rights of indigenous peoples to “their” lands and resources are being recognised (national level, ITPC, UNDRIP), their character is however unclear → solu on within the Inter-American human rights system → has linked the loose concept of indigenous peoples´ rights over traditional lands to the well established no on of property → recognition of collective (communal) property 6 Indigenous peoples and environmental protection COLLECTIVE PROPERTY RIGHTS Selected judgments of Inter-American Court of Human Rights  Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (judgment of 31 August 2001)  Case of the Saramaka People v. Suriname (judgment of 28 November 2007) paras. 77 – 140 of the judgment (yellow marked)  Case of Kichwa Indigenous People of Sarayaku v. Ecuador (judgment of 27 June 2012) Indigenous peoples and environmental protection COLLECTIVE PROPERTY RIGHTS “Given the characteristics of the instant case, some specifications are required on the concept of property in indigenous communities. Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centred on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.” (I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs. Judgment of August 31, 2001. Series C No. 79, para. 149) 7  SUMMARY AND CONCLUSIONS  the three approaches have been developed within different international forums, but complete and support each other  rights of indigenous peoples are a potentially powerful tool for environmental protection (it is estimated that indigenous peoples inhabit between 12 to 20% of the Earth´s land surface)  obstacles: lack of information and understanding (concept of human rights is essentially a Western society creation), length of proceedings, weak implementation of judgments Others? Thank you for your attention. 8