Australian Human
Rights Centre (AHRC)
WORKING PAPER 2003/3
Australian HumanRights Centre (AHRC)WORKING PAPER 2003/3 |
|
Global Sustainable Development : Human Rights, Environmental Rights and Indigenous Peoples
Associate Professor Donna Craig
Centre for Environmental Law
The
author wishes to dedicate this paper to her good friend and colleague Dr Darrell
Addison Posey from the Oxford Centre for Environment Ethics and Society. Darrell
died on
1.0 SUSTAINABLE DEVELOPMENT
1.1 Concept of Ecologically Sustainable Development
1.2 Indigenous Ethno-Development
2.0 Standards and Approaches to Human,
2.1 Traditional Human Rights Approaches
2.2 Evolving Approaches to Human Rights and the Environment
2.3 Water As A Human Right: An Example
2.4 Integrated Indigenous Rights Approaches
2.5 Traditional Resource Rights
3.0 COMPLIANCE WITH INTERNATIONAL STANDARDS
3.1 Inter-American Human Rights Regime
3.3 United Nations Permanent Forum on Indigenous Peoples
4.0 RECOGNITION OF INDIGENOUS RIGHTS IN THE INTERNATIONAL LAW OF NATURAL RESOURCES AND ENVIRONMENT
4.1 Early Environmental Conventions
4.2 World Heritage Convention
5.0 INDIGENOUS PEOPLES AND THE CONVENTION ON BIOLOGICAL DIVERSITY
5.1 Convention on Biological Diversity
5.2 Intellectual and Cultural Property Issues
6.0 RECENT ENVIRONMENTAL CONVENTIONS ‑ DESERTIFICATION
CONVENTION
6.1 Principles and Articles
7.0 OTHER INTERNATIONAL DEVELOPMENTS ON THE INTEGRATED RIGHTS OF INDIGENOUS PEOPLES
7.1 ILO Convention 169
7.2 The International Convenant on Economic, Social and Cultural Rights
7.3 International Covenant on Civil and Political Rights
7.4 Draft Universal Declaration on the Rights of Indigenous Peoples
8.0 EXAMPLES ON NATIONAL IMPLEMENTATION: INDIGENOUS RIGHTS
9.0 CONCLUSIONS
The Brundtland Report has popularised the concept of sustainable development (SD):
Humanity has the ability to make development sustainable to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs. The concept … does imply limits – not absolute limits but limitations imposed by the present state of technology and social organisation on environmental resources and by the ability of the biosphere to absorb the effects of human activities. Buth technology and social organisation can be both managed and improved to make way for a new era of economic growth [1] :.
Taken out of the context of the Report, such popularity is understandable. It seems to imply that we can continue to have economic growth, so long as we develop “better” ways of managing the environment. The ambiguity of the term allows for such an interpretation. The common usage of the concept of sustainability originated in relation to sustainable yield from biological and physical resources.
We have now extended the concept to the socio‑economic realm where the goal is not a sustained level of a physical stock or physical production from an ecosystem over time, but some sustained increase in the level of societal and individual welfare. This broader context was generated by the Brundtland Report that a wide range of other economic, social and cultural changes were essential to the objective of SD. A particular emphasis was given to poverty alleviation, equity, public participation and culturally appropriate strategies.
1.1 Indigenous Ethno-Development
The concept of ethno-development primarily focuses on local issues within territory occupied by indigenous people. However, they are inevitably impacted by decisions and plans which go beyond their land and involve peoples from the dominant culture. ESD requires action at the national and international level. A key issue which must be addressed is how we recognise the requirements of ESD and the needs of indigenous people for self‑determination. It is fundamental that indigenous peoples must have legally recognised title to their land, seas and natural resources and the power to control their use and management in a way that they consider appropriate.
Following the United Nations Conference on the Human Environment [2] , several declarations have stated the basic right of indigenous peoples to exercise self-determination to achieve ESD:
Development should respect, maintain and enhance the diversity of natural life and human culture to maintain and expand the availability of options for this and future generations .... This requires that homogenisation of land use and human lifestyles be avoided. [3]
The Declaration of San Jose defines the right to ethno-development as:
the amplification and consolidation of ... a culturally distinct society's own culture, through the strengthening of its capacity to guide its own development and exercise self‑determination ... and implying an equitable and proper organisation of power. [4]
This paper explores evolving concepts and legal approaches to human, environmental and Indigenous rights and the extent to which they potentially contribute to SD and ethnodevelopment.
2.0 STANDARDS AND APPROACHES TO HUMAN, ENVIRONMENTAL AND INDIGENOUS RIGHTS
Traditionally, international law has focused on state sovereignty and nation states have predominated as legitimate parties. This has changed to a limited extent, in regimes such as the human rights conventions, which focus on the rights of the individuals. The role of Non Government Organizations in the negotiation and implementation of some global and regional environmental conventions has also challenged the dominant concept that international law purely regulates the relationship between nation states. These new challenges, in modern international law, relate to the :
· concept and formulation of the rights (including procedural rights);
· enforcement, monitoring and financing of the obligations of developing nations on an equitable basis (sometimes involving differential responsibilities for the “North” and “South”);
· need to develop practical, affordable and innovative implementation strategies that empower, legitimise rights (in terms of the dominant political order) and work effectively for local communities and Indigenous and tribal peoples and address urgent needs such as poverty;
· Promotion of the rapid dissemination and adaptation of comparative experiences relating to national implementation;
Often, Indigenous peoples are seeking both collective and individual rights.
The predominant Western legal traditions, based on social contract theory, tends to pit individual rights against the State [5] . Indigenous strategies often involve this defensive role but they also assert their collective rights and (internal) collective obligations to maintain and continue to evolve their cultures and nations in the face of threats such as discrimination, dispossession, environmental change and the cultural, economic and the impacts of the dominant society.
Because Indigenous peoples have integral and unique relationships with the
earth (including land, seas, resources, wildlife) they do not fragment or compartmentalise
their rights and obligations relating to their ecological, spiritual, cultural,
economic and social dimensions.
[6] The accumulated knowledge of countless generations, acquired
in this way, has become a matter of global interest and exploitation
[7] . This can also be seen as a fundamental illustration
of Sustainable development (SD) as it draws “wisdom” from the idea of integrating
these dimensions. SD has now become the central focus of modern environmental
policy and the rapidly evolving “third generation of human rights”, such as
the right to development and the right to a healthy environment, (see national
constitutions with rights to environment quality such as
Human rights are often characterised as follows:
· civil & political Rights (first generation rights);
· economic, social and cultural rights (second generation rights);
· the (evolving) right to development and the right to a healthy environment.
Article 1 of the Declaration on the Right to Development [8] reads:
The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedom can be fully realised.
An example of this newer right is Article 30 in the Convention on the Rights of the Child:
In those States in which ethnic, religious or linguistic minorities or persons of Indigenous origin exist, a child belonging to such a minority or who is Indigenous shall not be denied the right, in community with his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language. [9]
International law and policy relating to SD has been promoted by Rio Declaration,
Agenda 21, Convention of Biodiversity (CBD), Framework Convention
on Climate Change (FCCC) and the Forest Principles which were the
key outcomes United Nations Conference on Environment and Development (UNCED)
in 1992 [10] . The rights of Indigenous peoples
is specifically mentioned in each of these global declarations and instruments
except for the FCCC. The Plan of Implementation developed at the World
Summit on Sustainable Development (
Arguably, basic provisions in international human rights instruments have become part of international customary law, known as “jus cogens”, and they are inextricably related to the rights to environment and development. Important jus cogens norms are as follows:
§ the right to be free from genocide (including cultural genocide)
§ the right to life (including the right of people not to be deprived of their own means of subsistence)
§ the right of peoples to self-determination [11]
Ward goes on to argue that these provisions in human rights instruments (now jus cogens) establish:
[T]he right to be free from hunger, the right to an adequate standard of living, the right to health, free personal development, sustainable community development using environmental and social impact assessments, and the right to integrity of the community as a whole. [12]
The overlaps in the approaches to human rights has caused the United Nations to begin preparing a Declaration of Principles on Human Rights and the Environment [13] . This Draft Declaration commences:
1.Human rights, an ecologically sound environment, sustainable development and peace are interdependent and indivisible.
2.All persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural, economic, political and social rights are universal.
The World Conservation Union (IUCN) has prepared a Draft of an umbrella global treaty to provide a legal framework for SD. It is known as the Draft Covenant on Environment and Development. [14] This is a very important indicator of future trends in international environmental law. It includes respect for all life forms. It recognises the right to development but has regard to the urgent need to maintain and restore the Earth’s ecological systems. The Covenant begins with nine fundamental principles guiding it’s objectives and implementation:
Art. 2 - Respect for all Life Forms
Nature as a whole warrants respect. The integrity of the Earth’s ecological systems shall be maintained and restored. Every form of life is unique and is to be safeguarded independent of its value to humanity.
Art.3 - Common Concern of Humanity
The global environment is the common concern of humanity.
Art.4 – Interdependent Values
Peace, development, environmental protection and respect for fundamental rights and fundamental freedoms are interdependent.
Art 5 – Intergenerational Equity
The freedom of action of each generation in regard to the environment is qualified by the needs of future generations.
Art. 6 – Prevention
Protection of the environment is best achieved by preventing environmental harm rather than by attempting to remedy or compensate for such harm.
Art 7 – Precaution
Lack of scientific certainty is no reason to postpone action to avoid potentially serious or irreversible harm to the environment.
Art 8 – Right to Development
The exercise of the right to development entails the obligation to meet the developmental and environmental needs of humanity in a sustainable and equitable manner.
Art 9 – Eradication of Poverty
The eradication of poverty, which in particular necessitates a global partnership, is an indispensable requirement for sustainable development
Art 10 – Consumption Patterns and Demographic Policies
The elimination of unsustainable patterns of consumption and production and the promotion of appropriate demographic policies are necessary to enhance the quality of life for all humanity and reduce disparities in living standards.
The United Nations Meeting of Experts on Human Rights and the Environment (2002) has reviewed the progress made since the United Nations Conference on Environment (Rio de Janiero, 1992) [15] They concluded that there was a growing and close connection between human rights and environment protection in the context of sustainable development. Important developments have occurred at the national and international level.
The experts particularly noted the linkage reflected in
developments relating to procedural and substantive rights, in the activities
of international organisations and in the drafting and application of national
constitutions. The is a wealth of case law, particularly
in developing nations, upholding the constitutional right to environmental quality.
[16]
This often required innovative approaches to standing and public
participation as seen in the famous Phillipines case of Oposa vs.Factoran [17] The was also refected
in the
Some human rights treaties, such as the Convention on the Rights of the Child and ILO 169 Concerning Indigenous and Tribal Peoples in Independent Countries, the African Charter on Human and Peoples Rights and the Protocol of San Salvador to the American Convention on Human Rights expressly recognise the right to live in a healthy or satisfactory Environment [19] . The experts conclude that respect for human right is broadly accepted as a pre-condition for sustainable development and that environmental protection is a pre-condition for the enjoyment of human rights – they are interdependent and interrelated [20] This is now reflected in national and international practices and developments [21] It is also understood that poverty is at the centre of a number of human rights violations and is a the same time a major obstacle to achieving SD [22] .
2.3 Water as a Human Right
The above discussion is intended to be provocative in terms of the way we perceive rights in a range of contexts related to SD and how we respect Indigenous peoples self determination of their rights. The argument for the need for a new right to water highlights novel ways of understanding rights and the reality that environmental quality underpins the ability to exercise most rights – in the Indigenous and non-indigenous world.
A powerful argument for a right to water is made by John Scanlon, Angela Cassar and Noemi Nemes from IUCN. The following background and discussion of the need for a human right to water is extracted from their recent paper [23] .
In the past century, the world’s population tripled while global demand for water has increased six-fold. [24] Today, more than a billion people lack safe drinking water and almost two and a half billion live without access to sanitation systems. [25] An estimated 14 to 30 thousand people, mostly young and elderly, die every day from avoidable water-related diseases. [26] If current trends persist, by 2025 two-thirds of the world’s population will be living with serious water shortages or almost no water at all. [27] The availability of adequate water supply is critical to every aspect of human life; a water crisis would have adverse impacts on health and welfare, the environment and economics world-wide.
The year 2003 was identified by the United Nations
as the International Year of Freshwater with one of its aims to reassert the
UN’s Millennium Declaration Goal: “to halve, by the year 2015, the proportion
of the world’s people unable to reach, or to afford, safe drinking water”
[28] and “to stop the unsustainable exploitation of water
resources.” [29] The Goal, endorsed by the World Summit on Sustainable
Development held in
The Need for a Human Right to Water
After a detailed review of current international law, Scanlon et al conclude that there is not yet an existing human right to water: [32]
Rather, a right to water is interpreted as being an implicit component of either existing fundamental human rights, or is expressly included in non-binding instruments that are designed to achieve specific ends. [33]
They follow with a discussion about the value of expressly recognizing water as a human right [34] . In this part of the paper an emerging approach to sustainable development is analyzed [35] .
[That approach] … is essentially a rights-based approach founded on the principles of equity. The link between sustainable development and human rights is a basic one. The protection of human life, health, and living standards is a fundamental precondition of economic development based on social equity and respect for the environment. The WSSD Plan of Implementation acknowledges "[p]eace, security, stability and respect for human rights and fundamental freedoms, including the right to development, as well as respect for cultural diversity, are essential for achieving sustainable development benefits for all." [36]
Strengthening universal human rights in the environmental and the social spheres will enable us to make significant changes towards the eradication of poverty which is critical to the successful realization of any programmes aiming at the achievement of sustainable development. That human rights, including realization of the right to development, is a prerequisite for effectively combating poverty is reflected in the Millennium Declaration [37] , the Copenhagen Declaration [38] , the Vienna Declaration [39] and the work of the General Assembly [40] . The inextricable link between sustainable development, poverty, and environment was also recognized in the WSSD Plan of Implementation:
"The goals of sustainable development can only be achieved in the absence of a high prevalence of debilitating diseases, while obtaining health gains for the whole population requires poverty eradication. There is an urgent need to address the causes of ill health, including environmental causes, and their impact on development, with particular emphasis on women and children, as well as vulnerable groups in society, such as people with disabilities, elderly persons and indigenous people." [41] [Emphasis added]
Linking human rights and the environment appears prima facie, straightforward - especially in view of the now well-accepted fundamental relationship between human rights and sustainable development, one key element of which is environmental protection. Human rights cannot be secured in a degraded or polluted environment. Many national constitutions support this basic premise by recognizing a right to a clean/safe environment. Nevertheless, acknowledging a human right to a safe/clean environment has proven to be anything but an easy task as is evident from debates over the last decade under the leadership of the Sub-Commission's [42] Special Rapporteur, Mrs. Fatma Zohra Ksentini, who explored the environmental dimension of human rights. Klaus Toepfer, Executive Director of UNEP said, "it is time to recognize that those who pollute or destroy the natural environment are not just committing a crime against nature, but are violating human rights as well." [43] The human rights aspect of the two pillars of sustainable development – i.e. the social and the environmental – was made visible in the UN/ECE Aarhus Convention [44] , which states in its Preamble that "every person has the right to live in an environment adequate to his or her health and well-being." This regional Convention may provide an important link to a new human rights-based approach to sustainable development as it ensures the right to information, justice and participation within the sustainable development context. Such an approach would also protect the most vulnerable in society. The elevation of the issue of safe water to the human rights sphere needs to be enhanced, as it is fundamental precondition for working on both poverty and environment.
Content of a Human Right to Water
Scanlon et al consider that the terminology, content and scope of an international human right to water. [45] They consider that a rights based approach must be
supplemented by an ecosystem approach
'Water' is looked upon as a social and environmental resource. The term 'right to water' does not only refer to the rights of people but also to the needs of the environment with regard to river basins, lakes, aquifers, oceans and ecosystems surrounding watercourses. Realistically, a right to water cannot be secured without this broader respect. A failure to recognize water as an environmental resource may jeopardize the rights-based approach, which views water primarily as a social resource. If we are to consider the maintenance of good quality water of adequate access and supply, we need to look at how this is to be achieved beyond the provision of safe drinking water and sanitation. Maintaining a safe water supply means that overall river basin management, agricultural practice, and other works are important if we are to meaningfully strengthen, and uphold any right to water. Thus, we need to make certain that river basins and groundwaters are managed in their entirety. Steps need to be taken to make provision for environmental flows for healthy river systems, i.e. to maintain downstream ecosystems and their benefits. [46]
The substantive aspects would include:
- within safe physical reach for all,
- affordable for all, and
- accessible to all in law and in fact;
The procedural rights that should accompany a human right to water are:
· the right of individuals to information concerning the government's
activities on water-related issues;
· the right of individuals to participate in decision-making, which concerns
water issues;
· the right of individuals to recourse for environmental harm suffered;
· the right of individuals to fair and just administrative action [48] .
The new human right should impose duties on the public and private sector. [49]
2.4 Integrated Indigenous Rights Approaches
It no longer makes any sense to talk about “categories of rights”. None of the human rights instruments attempt any ranking ‑ all rights and freedoms are placed on an equal footing. “All rights are, like humans themselves, inextricably singular and social.” [50] Therefore, “first” and “second” generation should be approached as a unity rather than a duality [51] . Brownlie maintains that there has been an assumption lying behind the classical formulation of human rights standards that “group rights would be taken care of automatically as a result of the protection of the rights of individuals” [52] . This approach has been inadequate to protect the rights of Indigenous peoples and there is an urgent need to advance international law in the direction of a more unified conceptual framework.
International Labour Organisation Convention 169 (ILO 169) and the Draft Declaration on the Rights of Indigenous Peoples (UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities) provide examples of the integrated rights approach (the Draft Declaration being a better example). ILO 169 and Draft Declaration should be understood within the wider framework of international environmental, Indigenous rights and human rights law. This is discussed by Darrell Posey who argued that there has been a gradual evolution of sui generis Traditional Resource Rights [53] .
Thus, Indigenous rights in international law and policy are not the “poor relation”. They are a catalyst for developing more unified and effective approaches to human rights and sustainable development which should be recognised and implemented in co-management regimes [54] .
2.5 Traditional Resource Rights
At a time when the difficulties in adapting existing western legal structures to enhance conservation of biodiversity and empower indigenous and local communities become manifest, the emergence of the concept of Traditional Resource Rights (TRR) appears to be timely. The TRR concept was first elaborated in an article by Posey entitled: “Traditional Resource Rights : De Facto Self‑determination for Indigenous Peoples” [55] .
The term Traditional Resource Rights describes the many 'bundles' of rights existing and being developed which can be utilised for the protection of and compensation for the use of traditional knowledge and resources. Traditional Resources include plants, animals, and other material objects, like minerals and cultural artifacts, which may have intangible (e.g. sacred, ceremonial, heritage, or aesthetic) qualities. Traditional Resources may also be totally intangible, metaphysical, or non‑quantifiable with no physical manifestations, such as systems of knowledge. The term 'property' is inappropriate, since property in traditional societies frequently has intangible, spiritual manifestations, and, although worthy of protection, can belong to no human being.
TRR encompasses not only conventional intellectual property rights mechanisms but basic rights and customary law defined in, or accommodated by, national and international laws, agreements and declarations. It is proposed that the TRR concept can form the basis for sui generis systems for protection and benefit‑sharing. Also, it could be implemented locally, nationally and internationally as a set of principles to guide the process for dialogue between indigenous and local communities, and governmental and non‑governmental institutions. TRR could, for example, guide the development of innovative contracts providing benefits to local communities in exchange for the transfer of information and biogenetic material.
In short, TRR‑guided negotiations can offer challenging opportunities for new partnerships based on increased respect for indigenous peoples and their knowledge, new codes of ethics and standards of conduct, socially and ecologically responsible practices, and holistic approaches to sustainability. At the very least TRR‑oriented discussions are certain to be more fruitful than those based on intellectual property rights because TRR brings the environmental concerns of local communities, and issues relating to SD and global trade, into the human rights debate. The process of developing TRR will involve further dialogue, debate and consciousness‑raising.
Traditional Resource Rights consists of the following bundles of rights, which are supported by the legally and non‑legally binding agreements stated below:
TRADITIONAL RESOURCE RIGHTS [56]
RIGHT (bundle)
SUPPORTING AGREEMENTS: legally binding
SUPPORTING AGREEMENTS: non legally binding
Human rights
ICESCR, ICCPR, CDW, CERD, CG, CRC, NLs
UDHR, DDRIP, VDPA
Right to self-determination
ILO169, ICESCR, ICCPR
DDRIP, VDPA
Collective rights
ILO169, ICESCR, ICCPR
DDRIP, VDPA
Land and territorial rights
ILO169, NLs
DDRIP
Right to religious freedom
ICCPR, NLs
UDHR
Right to development
ICESCR, ICCPR, ILO169
DDHRE, DDRIP, DHRD, VDPA
The right to privacy
ICCPR, NLs
UDHR
Prior informed consent
CBD, NLs
DDRIP
Environmental integrity
CBD
RD, DDHRE
Intellectual property rights
CBD, WIPO, GATT, UPOV, NLs
Neighbouring rights
RC, NLs
Right to enter into legal agreements, such as contracts and covenants
NLs
Cultural property rights
UNESCO-CCP, NLs
Right to protection of folklore
NLs
UNESCO-WIPO, UNESCO-F
Right to protection of cultural heritage
UNESCO-WHC, NLs
UNESCO-PICC
Recognition of cultural landscape
UNESCO-WHC
Recognition of customary law and practice
ILO169, NLs
DDRIP
Farmers’ Rights
FAO-IUPGR
KEY:
Legally binding agreements in force (with number of State Parties)
CBD: Convention on Biological Diversity (1992)
CDW: Convention on the Elimination of all Forms of Discrimination Against Women
CERD: Convention on the Elimination of all Forms of Racial Discrimination (1966)
CG: Convention on the Prevention and Punishment of the Crime of Genocide (1948)
CRC: Convention on the Rights of the Child
GATT: Final Act Embodying the Results of the
ICESCR: UN International Covenant on Economic, Social and Cultural Rights (1966)
ICCPR: UN International Covenant on Civil and Political Rights (1966)
ILO169: International Labour Organisation Convention 169: Convention Concerning Indigenous and Tribal Peoples in Independent Countries (1989)
NLs: National laws
RC:
UNESCO: UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) (WHC)
UNESCO: UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) (CCP)
UPOV: International
WIPO: The World Intellectual Property Organisation, which administers international IPR agreements, such as:
The Convention of Paris tor the Protection of Industrial Property (1883, revised most recently in 1967)
The
The
The
The Patent Cooperation Treaty (1970)
Non legal agreements
DDHRE: UN Draft Declaration of Principles on Human Rights and the Environment (1994)
DDRIP: UN Draft Declaration on the Rights of Indigenous Peoples (formally adopted by the UN Working Group on Indigenous Populations in July 1994)
DHRD: UN Declaration on the Human Right to Development (1986)
FAO‑IUPGR FAO International Undertaking on Plant Genetic Resources (1987 version)
RD:
UDHR: Universal Declaration of Human Rights (1948)
UNESCO‑F: UNESCO Recommendations on the Safeguarding of Traditional Culture and Folklore (1989)
UNESCO‑PICC: UNESCO Declaration on the Principles of International Cultural Cooperation (1966)
UNESCO-WIPO: UNESCO‑WIPO Model Provisions for National Laws on Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1985)
VDPA: UN Vienna Declaration and Programme of Action (1993)
In part, the transition from principle to action will come through changes in funds and funding. The Global Environmental Facility (GEF) and other international funding agencies (such as the World Bank, multilateral lending institutions, development agencies, etc.) should provide funding for indigenous conservation efforts, development of TRR sui generis provisions, application of indigenous and traditional knowledge, and economic options for local communities.
The first step in this effort is to require that there are adequate IPR/TRR provisions in all funded projects. Currently many research or development projects can be funded without even securing the permission of the communities involved. This is no longer acceptable, just as projects with no specific guidelines on or implementation procedures for protection and compensation of scientific, cultural and intellectual property should not even be considered for funding.
Transfer of plant and animal genetic materials takes on a new dimension since such materials should appropriately be seen as technological transfers as they are the application of traditional knowledge and lifeways systems. Establishment of global funds, such as the one for “Farmers' Rights” to compensate local farmers for their “contributions in conserving, improving and making available plant genetic resources” [57] , will become essential to effect equitable sharing of the benefits of biodiversity conservation.
3.0 COMPLIANCE WITH INTERNATIONAL STANDARDS
The enforcement of international law and policy, relating
to the human and environmental rights of Indigenous peoples, is often inadequate
with the possible exception of Convention on the Rights of the Child, ILO
169 and the optional protocol under the Convention on Civil and Political
Rights. Regional human rights conventions (
Inter – American Human Rights Regime
The Organization of American States (OAS) is a regional agreement,
founded on the principle that States, comprising North, Central and
The characteristic that distinguishes it from the United Nations
system is the accessibility of the ‘communication’ of a petition is not restricted
to Non-Government Organizations or member states but the individual, family
relation or third party may initiate proceedings. The Commission can appoint
moderators to oversee ‘friendly settlement’ proceedings whereby the parties
agree, acting in good faith, to attempt to reach a resolution of the violations
and have a six month deadline. A restriction on the OAS system for the protection
of human rights is that similar proceedings cannot be ongoing in the United
Nations system concurrently. The finding of a violation of a
A recent decision of the Inter-American Court of Human Rights,
The Mayagna (Sumo) Indigenous Community of
Awas Tingni v. The
The Court stated that it is not enough for
United Nations Permanent Forum on Indigenous Peoples
The announcement of the United Nations Decade for the World's Indigenous Peoples was indicative that the recognition of the fundamental rights of Indigenous peoples will continue to evolve internationally and nationally. The Permanent Forum on Indigenous Peoples, a new subordinate organ of the United Nations Economic and Social Council, has an innovative internal organization. It is comprised of eight representatives of Indigenous peoples and eight experts chosen by the member states of the United Nations, a combination not previously seen in other United Nations entities. The Forum is in response to the growing body of work on Indigenous issues at the international level and the resounding success and participation of Working Groups [58] under the Human Rights Commission.
4.0 RECOGNITION OF INDIGENOUS RIGHTS IN THE INTERNATIONAL LAW OF NATURAL RESOURCES AND ENVIRONMENT
4.1 Early Environmental Conventions
In the field of natural resources and environment early international legal instruments adopted during this century, make only isolated mention of the rights of indigenous peoples. Of the more than one hundred instruments on protection and use of natural resources, only a few provide for exceptions to be applied to the uses made by indigenous people. As it may also be seen, important progress was made in the last part of the decade of the eighties, and more particularly at UNCED and the modern trend is towards vigorous assertion of indigenous rights in legal instruments.
The Convention relative to the Preservation of Fauna and
Flora in their
In 1962, the International Convention for the Regulation of Whaling (1946) started mentioning the special rights of indigenous peoples to undertake whale hunting. From 1972 onwards, this recognition became a constant issue in the agendas of the governing body of the Convention, the International Whaling Commission. In 1986, when the moratorium on whale hunting was declared, an exception was included in favour of Aboriginal groups. Finally, in 1989 a special Subcommittee on whale hunting by Aboriginal groups was established.
The African Convention of Nature and Natural Resources (1968) included in its article XI a provision indicating that Contracting States shall take all necessary legislative measures to reconcile customary rights with the provisions of the Convention. It was expected that traditional uses were adapted to the thrust of the Convention and not the other way around.
In the Agreement on Conservation of Polar Bears (1973), the States of the Arctic Region established limitations regarding the taking of polar bears, providing that exceptions were allowed when such taking was to be carried out by local people using traditional methods in the exercise of their traditional rights in accordance with the laws of that Party or wherever polar bears have or might have been subject to taking by traditional means by its nationals (Article ill(d) and (e)).
The Convention on Conservation of Nature in the South Pacific (1976), contains provisions for the protection of protected areas, national parks and national reserves, which enables the Contracting Parties to make appropriate provisions for customary use of areas and species in accordance with traditional cultural practices. Later on, the Protocols concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region [59] and the Protocol to the Convention on the Natural Resources and the Environment of the South Pacific Region [60] provided that, in complying with the Convention, parties may take into account the cultural value of the area concerned and the exercise of traditional customary rights therein.
A Protocol concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region [61] , was adopted in 1985. This legal instrument also includes, in article 12, the obligation for the Contracting Parties to promulgate protective measures, taking into account the traditional activities of their local populations in the areas to be protected.
4.2 World Heritage Convention
The World Cultural and Natural Heritage Convention (1972) provides for the identification and protection of cultural and natural heritage which is of “outstanding universal value”. A World Heritage List is compiled under the auspices of UNESCO. The State parties to the Convention also provide some (limited) funds for the protection of the places on the list.
Examples of criteria for “cultural” properties require that they should:
· …be an outstanding example of a traditional human settlement or landuse which is representative of a culture (or cultures), especially when it has become vulnerable under the impact of irreversible change; or,
· be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance. (NB the Committee considers that this criterion should justify inclusion in the List only in exceptional circumstances or in conjunction with other criteria).
The criteria for “natural” properties includes places which:
· be outstanding examples representing major stages of earth's history, including the record of life, significant on-going geological processes in the development of landforms, or significant geomorphic or physiographic features; or
· be outstanding examples representing significant on-going ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals; or
· contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance; or
· contain the most important and significant natural habitats for in-situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation;
Of the 690 listed sites (as at March 2001), 529 were selected for their cultural importance and 138 for their natural significance. The rest are joint cultural and natural heritage sites.
The World Heritage Site of Tongariro National Park in
It would appear from the above that the Convention may be useful in protecting
the cultural heritage of some indigenous peoples although recognition of their
concerns and values, through criteria, has been slow. A factor will be the willingness
of the World Heritage Committee and “expert” advisers such as IUCN to pay heed
to the interests of indigenous peoples when considering the inclusion of new
nominations and already listed properties under the new criteria. However, ultimately,
the extent to which the religious and cultural importance of places and objects
for ethnic minorities and indigenous peoples is taken into account in the World
Heritage List depends upon: (a) whether governments are willing to consult indigenous
peoples: (b) whether national legislation to implement the Convention allows
for a flexible or broad interpretation of “cultural and national heritage” and
(c) whether the Committee is prepared to take the view that cultural and natural
properties important to an indigenous people constitute part of the heritage
of humankind of sufficient importance to justify the expense of their protection [63] . Precedents do exist and some places that are important
to an indigenous people are now on the World Heritage List, such as Tongariro
and Uluru Kata Tjuta (Ayers Rock) in
5.0 INDIGENOUS PEOPLES AND THE CONVENTION ON BIOLOGICAL DIVERSITY
The UNCED gathering, in 1992, brought together more Heads of States than had ever before been assembled to debate the future of planet earth. A key outcome of UNCED was the Convention on Biological Diversity (CBD), to guide and govern the use and conservation of biogenetic resources and traditional knowledge, while protecting local communities and indigenous peoples. The primary role and sovereignty of States is not challenged by the CBD. For example, Article 1 of the Convention states:
The objectives of this Convention ... are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources, including by appropriate access to genetic resources and appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.
The CBD itself refers to indigenous peoples in several significant sections. Article 8(j) is the most important of these sections. Signatories to the Convention agreed to:
Subject to it’s national legislation, respect, preserve and maintain knowledge, innovations, and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovations and practices.
The CBD places indigenous and traditional knowledge, as well as traditional technologies and biogenetic resources, under Nation‑State sovereignty. Thus, no matter how liberal or generous provisions might appear, indigenous peoples are faced with a difficult conundrum. On the one hand their contributions, central role in SD and conservation, and rights as decision‑makers and beneficiaries are recognised far beyond any previous international binding legal convention. However, indigenous peoples are reluctant to accept that ultimate control over resources lies with nation‑states. Few indigenous groups are willing to allow this a priori usurpation of their fundamental rights of self-determination no matter what promises and favourable interpretations may arise.
There is no reason to expect that the CBD, will significantly contribute to the resolution of basic issues raised in the Draft UN Declaration on the Rights of Indigenous Peoples, namely their call for self‑determination. However, it may help pave the way for the development of useful instruments that work towards more equitable partnerships with indigenous peoples.
Intellectual Property Rights and TRR’s are clearly mechanisms for renegotiating the terms of these partnerships, which would be built upon the recognition, application, and compensation for indigenous technologies and knowledge. Unfortunately, the CBD does not provide any explicit legal means to recognise, protect or compensate indigenous peoples, nor do such mechanisms exist in any global legal forum.
The important roles of Indigenous peoples, local communities and women are recognised in the Preamble to the Convention. Most attention has been focused on Article 8(j). The Explanatory Guide to the CBD [64] notes that the proviso of subjecting these obligations to national legislation is unusual. The objectives of the article could be defeated since the wording implies that existing national legislation will take precedence. It also could be taken to imply that these concerns of Indigenous peoples can be respected and preserved without addressing outstanding issues of Indigenous peoples' rights to land and biological resources. It is obvious that such communities cannot continue these traditional practices in isolation from the land and biological resources that they need [65] , and this recognition would be consistent with a growing body of international obligations such as ILO 169 and the Draft Universal Declaration on the Rights of Indigenous Peoples.
If Article 8(j) is to be given legal meaning, which respects the concerns of Indigenous peoples, some fundamental issues must be addressed:
· Indigenous concepts of conservation and sustainable use need to be much better understood by the wider national and international community. This should be facilitated by providing the resources, and access, for Indigenous peoples to express these concepts directly in their own words. It also involves a recognition of wide cultural diversity even within small groups of Indigenous peoples.
· Indigenous knowledge, innovation and practices are also poorly understood. Ethnographic and ethnobiological studies are limited and have not necessarily been undertaken for the policy purpose of conservation and sustainable use of biological diversity. The knowledge and practice is deeply embedded in Indigenous culture and appropriate research and policy development will need to be undertaken through Indigenous control or partnership.
· The expression “Indigenous and local communities embodying traditional lifestyles” needs to be critically considered. Many Indigenous peoples, with strong traditional links and involvement, may be excluded from Article 8(j) because of their employment or where they live. In particular, it fails to consider the realities of contemporary Indigenous culture. The Australian Government briefing for the first meeting of the Conference of Parties stated that Australia considers that the phrase “embodying traditional lifestyles” should not imply that such communities do not change and would include Indigenous peoples who follow traditional customs but do so in a “non‑traditional” way.
· Contracting parties are meant to promote wider application of Indigenous knowledge with the approach and involvement of relevant Indigenous people. The holder/s of the knowledge or technology may be an individual, group or community. This will make the participatory provisions difficult to implement without sound applied anthropological studies and co‑operation from individuals and communities. It is unclear who can, or should, determine the issue of who are the “holders” of knowledge and technology.
· The provision for the “equitable sharing” of benefits, from the wider applications, raises the same issues discussed in (4) above. Will “equity” be determined from an Indigenous perspective and does it imply the recognition of cultural and intellectual property rights held by Indigenous peoples? At the very least Indigenous peoples will expect that the wider application of their knowledge, practices and technology would be preceded by recognition of Indigenous concerns in the first part of Article 8(j). The analogy is with the idea of a “trust”. If national governments are to use Indigenous knowledge, innovations and practices, for the wider public “good”, then there should be a clear obligation towards the Indigenous peoples who have developed them. It would be against the intent (see Preamble) of the Convention to construe Article 8(j) purely as a means of appropriating Indigenous knowledge without reciprocity. The legal and practical forms of this reciprocity remain to be worked out under the Convention.
Article 10(c) requires contracting parties to “Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation and sustainable use requirements”. Most of the Articles in the Convention recognise that non-indigenous laws, policies and practices will change as we learn more about biodiversity and strategies to protect it. Indigenous culture has always been subject to some change. Indeed, this is why some of their biodiversity strategies and protective systems have been so effective. If expressions such as “customary use” and “traditional cultural practices” are interpreted as protecting only past, or existing, uses and practices this would deny contemporary Indigenous self determination and undermine many of the purposes of the Convention. The relevant focus is Indigenous sustainable use. Judgments about “traditionality” will impede Indigenous co‑operation on these issues.
Some of these specific Indigenous peoples' issues have been dealt with in a Work Programme of the CBD Conference of Parties (COP) from 1996 onwards.
Article 6 requires Contracting Parties to develop national strategies,
plans or programmes for the conservation and sustainable use of biodiversity.
This is one of the most important obligations for implementation, under the
Convention.
The identification and monitoring provisions (Article 7) involve national surveys or inventories of biological diversity. Article 14 deals with environmental impact assessment and minimising adverse impacts. Those activities must involve affected Indigenous peoples in a significant way. These Articles will provide important bases for Indigenous participation in planning for biodiversity conservation at the national and local levels and complement the rights in Articles 8(j) and (10(c) of the CBD
5.2 Intellectual and Cultural Property Issues
A close analysis of the CBD reveals a serious risk that Indigenous peoples will be seen as a “resource” for biological diversity rather than as peoples who hold legal and cultural rights in relation to it. This poses serious ethical and practical issues in seeking to involve Indigenous peoples. Indigenous knowledge is a considerable source of wealth in the pharmaceutical and other industries and a constant focus of research activity. At the present time, virtually none of the profits are returned to Indigenous peoples. Several Articles in the CBD are primarily concerned with promoting commercial access to genetic resources and promoting the commercial access and transfer of technology. The relevant articles (15 and 16) make no specific provisions for Indigenous peoples and they have to be read in the context of the earlier articles (such as 8(j)).
The promotion of access to genetic resources, and recent proposals to patent genes, could eventually deny Indigenous people the biological resources which they have managed for thousands of years. These issues are of concern to Indigenous and non‑Indigenous peoples. The provisions for increased access to genetic resources need to be considered in the context of proposals to patent animal and life forms with the possible reduction in biodiversity because of monopolies in ownership and control.
The provisions for the access and transfer of knowledge and technology (Articles 16, 17 and 18) include Indigenous and traditional knowledge and technology. The term “technology” can encompass such knowledge and technology (in Article 16) and it is explicitly referred to in Articles 17 and 18. The only basis for Indigenous “control”, “participation” and “benefit” is contained in Article 8(j). The scene is set for wide use of Indigenous knowledge and practices relating to biodiversity. However, few jurisdictions have developed legislation and codes of conduct which will ensure that some of the benefits are returned to Indigenous communities.
One strategy for Indigenous peoples is to use existing intellectual property law for their own benefit where possible. At the same time, they are pushing for changes to intellectual property laws to encompass their cultural concerns and collective forms of “ownership”. Proposals for national biodiversity laws will need to consider existing and alternative frameworks for addressing the intellectual and cultural property rights appropriate for Indigenous peoples at the present time.
Intellectual property law provides the primary mechanism for non-Indigenous governments and corporations to appropriate Indigenous knowledge. The main international conventions are as follows:
·
The
·
The
· The International Convention for the Protection of New Varieties of Plants 1961 (UPOV amended, 1971, 1978 and 1991).
These conventions were developed with virtually no regard for the needs of Indigenous and traditional peoples for the protection of their cultural and intellectual property (usually embodied in their communal lifestyles). They were developed to protect the marketable property of non‑Indigenous corporations. This is a restricted form of property which is severed from the original components of the “invention” and the cultures which may have nurtured its initial forms of stages. It is the “modification” or “discovery” through non‑Indigenous technology which is usually rewarded and protected by intellectual property rights.
Indigenous peoples, in contemporary society, require an economic base. This is even the case where many of their activities and lifestyle remain “traditional”. In many situations their ecosystems have been altered, and political circumstances changed, so that they cannot (or do not wish) to live a totally subsistence lifestyle. The economic and sustainable use of resources can be consistent with the maintenance of Indigenous lifestyle. Intellectual property rights are in option to be considered by Indigenous peoples, to protect their biological resources, cultural practices and to develop an economic base required by contemporary circumstances.
It is difficult to formulate a version of intellectual and cultural property rights appropriate for Indigenous peoples at the present time. Some of the difficulties with existing laws are as follows:
· Indigenous peoples are not given recognition, as legal “persons”, to enforce international conventions on intellectual property.
· There is little experience with identifying the Indigenous knowledge or resource “component”, when it is modified by industrial users and with placing an economic value on such a “component”. Such knowledge is usually part of a culture that cannot be segmented by Indigenous peoples or others.
· Intellectual property laws require an individual group, or other legal entity, to make the claim. Indigenous knowledge is often communally held [66] . This is not an impediment in itself, if groups who control knowledge and resources can be identified. The boundaries of groups and the “exclusivity” of knowledge and practice may be problematic.
· Intellectual property rights, in the form held by Indigenous peoples, may not be readily marketable. Large scale marketing may also impact on the cultures and lifestyles which produced the knowledge and technologies.
· Indigenous peoples would require greater resources and capacity building to avail themselves of intellectual property laws [67] .
The intellectual and cultural property rights of Indigenous peoples require further consideration and development having regard to the specific provisions of the CBD. Other mechanisms will also need to be considered such as Indigenous control of access to their communities.
The UNCED agreements, Declarations and Agenda 21, clearly recognise the importance of indigenous peoples' knowledge and traditional practices regarding the conservation and sustainable use of biological resources. The language of the CBD, however, encourages rather than obliges States to protect the rights of indigenous peoples and to develop national legislation to respect, preserve and maintain the knowledge, innovations and practices of traditional peoples. National laws are required to protect the intellectual property and traditional resource rights of communities embodying traditional lifestyles. The active approval by and involvement of indigenous, traditional and local communities in conservation and development activities is fundamental for the successful implementation of the CBD. Furthermore, equitable sharing of benefits and development of effective forms for compensation are critical, as are mechanisms to protect local communities from the adverse effects of external technologies that weaken their effectiveness in conservation efforts.
Much additional research is needed to understand the effectiveness of traditional technologies. Research, monitoring, and inventory criteria, priorities, and methods need to be guided and controlled by local communities. Finally, to successfully implement the provisions of the CBD, financial mechanisms will have to be made available to indigenous, traditional and local communities.
6.0 RECENT ENVIRONMENTAL CONVENTIONS‑DESERTIFICATION CONVENTION
International Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification
In October 1994, the International Convention to Combat
Desertification in Countries Experiencing Serious Drought and/or Desertification
was signed in
The Convention affirms that “human beings in affected or threatened areas are at the centre of concerns to combat desertification and mitigate the effects of drought...” and that “arid, semi-arid and dry sub-humid areas together account for a significant proportion of the Earth's land area and are the habitat and are the source of livelihood for a large segment of its population”. The Convention recognises that “desertification is caused by complex interactions among physical, biological, political, social, cultural and economic factors”, and that “desertification and drought affect ESD through their interrelationships with important social problems such as poverty, poor health and nutrition, lack of food security, and those arising from migration, displacement of persons and demographic dynamics...”
6.1 Principles and Articles
The tone of the COD is set in Principle (a) of Article 3, which states that:
[T]he Parties should ensure that decisions on the design and implementation of programmes to combat desertification and/or mitigate the effects of drought are taken with the participation of populations and local communities and that an enabling environment is created at higher levels to facilitate action at national and local levels.
Article 9 calls for the preparation and implementation of National Action Programmes (NAPs), including regional and subregional programs, to combat desertification. These programs call for a participatory process based on lessons from field action, as well as the results of research. These NAPs are similar to the national plans called for in the CBD.
Article 10 outlines the nature of National Action Programmes. Item 2 states that: “National action programs shall specify the respective roles of government, local communities and land users and the resources available and needed.”
This language is encouraging, since access to appropriate information and technology is essential to local communities as is, of course, effective participation. Indigenous peoples may find (2c) useful, since in some parts of the world, their lands are the least degraded and, consequently, should be given priority for protection.
Article 10(3) allows that NAPs can include such things as local and regional early warning systems, strengthening of food security systems (including storage and marketing), and establishment of “alternative livelihood projects that could provide incomes in drought prone areas”.
Article 16 deals with information collection, analysis and exchange. Data banks and networks are called for that address the needs of local communities and ensure the adequate protection and return for local and traditional knowledge that is provided. Article 17 deals with research and development and requires Signatories to:
(b) respond to well defined objectives, address the specific needs of local populations and lead to the identification and implementation of solutions that improve the living standards of people in affected areas;
(c) protect, integrate, enhance and validate traditional and local knowledge, know‑how and practices, ensuring, subject to their respective national legislation and/or policies, that the owners of that knowledge will directly benefit on an equitable basis and on mutually agreed terms from any commercial utilisation of it or from any technological development derived.
Article 18 treats the subjects of transfer, adaptation and development of technology. Article 19 calls for capacity building, educational, and public awareness measures, including training in alternative technologies, conservation, and research. The Article also calls for action:
(d) by fostering the use and dissemination of the knowledge, know‑how and practices of local people in technical cooperation programmes, wherever possible;
(e) by adapting, where necessary, relevant environmentally sound technology and traditional methods of agriculture and pastoralism to modern socio-economic conditions.
This raises serious issues about what (if any) mechanisms will be used to protect indigenous rights to intellectual and cultural property.
Articles 20 and 21 deal with financial resources and mechanisms and call for assistance from the Global Environmental Facility (GEF) and international lending institutions. It also recognise debt swaps “and other creative mechanisms”. Article 21(3) calls on States to utilise participatory processes involving non‑governmental organisations, local groups and the private sector, in raising funds, in elaborating as well as implementing programmes and in assuring access to funding by groups at the local level.
A “Global Mechanism” is also established in Article 21(5) to guide, inform, advise and facilitate States in their attempts to finance relevant programs and projects. Such a mechanism should address the specific concerns of indigenous, traditional, and local communities.
In general, the Convention to Combat Desertification offers significant promise to some local communities and, in as much as indigenous communities are local communities, this should not go unnoticed. As with the CBD, the call for wider use and application of local and traditional know‑how, knowledge, practice, and skills may be well‑intentioned, but without adequate provisions for protection and just compensation for such use, such a call is dangerous.
The provisions of the Convention to Combat Desertification go farther than the CBD in their for protection of intellectual, cultural, and scientific property rights. However, no specific mechanisms are proposed, nor even any process to develop such provisions. This situation should signal to indigenous and local communities an even greater and more urgent need to develop their own guidelines for technology access, transfer, and protection.
Although the COD has somewhat stronger wording in support of local communities and their traditional knowledge, know‑how, and practices, it suffers the same problems as the CBD. These include extension of State sovereignty over traditional resources. It recognises and only tacit guarantees of Indigenous rights. Furthermore, the COD does not enjoy the general application and international grassroots support of the CBD. Consequently it is less likely that the COD will be moulded by public sentiment in favour of Indigenous Peoples. Nonetheless, there is no reason that such pressures could not be mobilised, since the Convention to Combat Desertification is yet another major international agreement that can and should serve as a pivotal point for the integration of human and environmental rights.
7.0 OTHER INTERNATIONAL DEVELOPMENTS ON THE INTEGRATED RIGHTS OF INDIGENOUS PEOPLES
The international legal status of Indigenous peoples, as self determining nations, remains an enduring and controversial issue in international law. This remains the situation even though there is increasing domestic legal recognition of various forms of Indigenous self government within many nation. The fear of succession, and other political factors, has influenced the international position adopted by States. The right of self determination remains a central concern in the negotiation of the UN Draft Declaration of Indigenous Rights. It is clear that this right is the focal point for asserting contemporary Indigenous claims for their integrated and comprehensive rights. This discourse has largely transcended the wider issue the assertion of collective or group rights in the "third generation" of international human rights.
7.1 ILO Convention 169
In 1989 the International Labour Organisation adopted a new convention, ILO 169, Concerning Indigenous and Tribal Peoples in Independent Countries. Some indigenous peoples and other commentators consider that ILO 169 undermines indigenous aspirations by emphasising “participation” or “consultation” rather than self determination However, taken as a whole, ILO 169 is the most significant international treaty, so far, that recognises the integrated and comprehensive rights of Indigenous and Tribal peoples
Relevant articles require systematic and co-ordinated action to protect the rights of indigenous peoples:
· Article 7
1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well‑being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.
2. The improvement of the conditions of life and work and levels of health and education of the peoples concerned, with their participation and co‑operation, shall be a matter of priority in plans for the overall economic development of areas they inhabit. Special projects for development of the areas in question shall also be so designed as to promote such improvement.
3. Governments shall ensure that, whenever appropriate, studies are carried out, in co‑operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. …
· Article 13
1. In applying the provision of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use and in particular, the collective aspects of this relationship.
2. The use of the term “lands” in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.
· Article 14
1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measure shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy and to guarantee effective protection of their rights of ownership and possession.
3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.
· Article 15
1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be especially safeguarded These rights include the right of these peoples to participant in the use, management and conservation of these resources.
ILO 169 tends to be regarded as a “floor” and not the “upper level” of indigenous rights. It was being negotiated at the same time as the Draft UN Declaration of Indigenous Rights. Many indigenous peoples prefer the stronger language in the Draft Declaration. ILO is expressed in a form to encourage ratification by the maximum number of nations, some of which give poor recognition to indigenous rights at the present time. International standards will develop under this convention along with other human rights and environmental conventions as well as “soft law” such as universal declarations by the United Nations.
7.1 The International Covenant on Economic, Social and Cultural Rights
After the adoption of the Universal Declaration of Human Rights (UDHR), the United Nations' Commission on Human Rights commenced drafting two human rights' conventions which are relevant to indigenous peoples' rights to ecologically ESD.
Article 1(2) of the ICESCR provides that:
[A]ll 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.
Indigenous peoples assert their rights as “people” under this provision, but prefer the terminology of peoples associated with the right to self-determination.
Article l5(1c) provides that States recognise the right to “benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”.
Posey argues that this provides a basis for indigenous intellectual, scientific and cultural property rights protection [68] .
7.3 International Covenant on Civil and Political Rights
Article 1(2) of the ICCPR is identical to Article 1(2) of the ICESCR. Article 18 of the ICCPR states that everyone shall have a right to freedom of thought, conscience and religion. Article 27 provides for the rights of minorities:
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 other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
7.4 Draft Universal Declaration on the Rights of Indigenous Peoples
In 1982 the Economic and Social Council of the United Nations authorised the establishment of a Working Group on Indigenous Populations to meet annually as part of the Sub‑Commission on the Prevention of Discrimination and Protection of Minorities. The Mandate of the Working Group was:
· to review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of Indigenous Peoples; and
· to give special attention to the evolution of standards concerning the rights of indigenous populations.
The two major matters for Working Group deliberations are a “Review of Developments” and “Standard Setting”. Since 1985 the Working Group has decided to meet its “Standard Setting” mandate by formulating a Draft Declaration on the Rights of Indigenous Peoples. The process has involved hundreds of indigenous peoples in UN meetings and work for over ten years. The Draft Declaration has been passed up to the Sub‑Commission and make its way to the UN General Assembly. Within the next few years it will be a UN Declaration with the same status as the UN Declaration on Human Rights. The Working Group Draft will be amended by Nation States in this process.
However, the Working Group version of the Draft Declaration (1993) is the most comprehensive, integrated and strongest articulation of indigenous rights, by indigenous peoples, to date. This version expresses the international standard developed by indigenous participants over a very long period of deliberation. This was one of the most participatory NGO processes, particularly including indigenous peoples, in UN history. The Draft Declaration needs to be read holistically as the clearest articulation of the integrated rights of indigenous peoples in evolving international law and policy.
The clear and unqualified right to Indigenous self determination is contained in Article 3. Other rights (including management rights) to lands, resources, waters, seas, biological resources, the recognition of intellectual and cultural property and the rights of Indigenous peoples to determine their own development priorities are contained in 25 to 30. These are more powerful reflections of the contemporary aspirations and needs of Indigenous peoples than the provisions in ILO 169.
The Draft Declaration is slowly proceeding through the UN process. It will remain important to consider what parts of it are reflected in other treaties (discussed above), international customary law and jus cogens.
8.0 EXAMPLES ON NATIONAL IMPLEMENTATION: INDIGENOUS RIGHTS
Because indigenous societies are largely agriculturally based, they view access to and control over significant land areas as vital to their economic welfare and social cohesion. Recently, indigenous groups have linked these issues to the international debate on environmental protection. They argue that economic expansion onto indigenous lands has degraded the environment and the natural resource base. This poses a threat, many warn, not only to indigenous lifestyles which depend on the land, but also to the regional and global ecological balance. The remedy, indigenous groups argue, is for the international community to support indigenous peoples' demands for secure titles to and control over their lands and resources on the grounds that their use of the land will protect the environment better than other uses.
Many nations have recognised the customary laws of indigenous peoples to use
and manage their resources through the common law or through statute. In the
Canadian [69]
,
Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed. …
It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connection between the indigenous people and the land remains. [72]
A Canadian Supreme Court Case has decided that the Canadian Federal Government owes a fiduciary obligation to indigenous peoples when they dispose of ancestral or reserve land [73] . This Court also held that native title includes practices that form an integral “part” of an indigenous community's distinctive culture such as the indigenous use of fisheries [74] . An argument can be made that native title necessarily includes indigenous management of marine resources, wildlife, natural resources, land and waters and this is an essential dimension of their sustainable indigenous use.
In the context of Canada, the recognition of native title has led to the negotiation
of some modern treaties which settle indigenous land claims, allocate rights
to natural resources (and royalties from their exploitation) and set up comprehensive
regimes for indigenous participation in environmental assessment, development
decisions and the management of land, seas, natural resources and wildlife (Canadian
Regional Agreements) [75] . Native title rights and Regional Agreements are granted
constitutional protection [76]
. Unresolved native title in
In