Environmental Justice and the Rights of Indigenous Peoples

International and Domestic Legal Perspectives

Laura Westra

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136566868
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

More than 300 million people in over 70 countries make up the worlds indigenous populations. Yet despite ever-growing pressures on their lands, environment and way of life through outside factors such as climate change and globalization, their rights in these and other respects are still not fully recognized in international law.In this incisive book, Laura Westra deftly reveals the lethal effects that damage to ecological integrity can have on communities. Using examples in national and international case law, she demonstrates how their lack of sufficient legal rights leaves indigenous peoples defenceless, time and again, in the face of governments and businesses who have little effective incentive to consult with them (let alone gain their consent) in going ahead with relocations, mining plans and more. The historical background and current legal instruments are discussed and, through examples from the Americas, Africa, Oceania and the special case of the Arctic, a picture emerges of how things must change if indigenous communities are to survive. It is a warning to us all from the example of those who live most closely in tune with nature and are the first to feel the impact when environmental damage goes unchecked.

PART ONE

Basic Issues, Principles and Historical Background

CHAPTER 1

The Rights of Indigenous Peoples: Eco-footprint Crime and the ‘Biological/Ecological Integrity Model’ to Achieve Environmental Justice

INDIGENOUS PEOPLES AND INTERNATIONAL LAW

Indigenous people and their communities and other local communities have a vital role in environmental management and development because of knowledge and traditional practices. States should recognize and duly support their identity, culture and interest, and enable their effective participation in the achievement of sustainable development.¹

This declaration provides an excellent starting point from which to evaluate other regimes pertaining to the rights of indigenous peoples. One of the major instruments that supports those rights is the Declaration of Human Rights,² which has been viewed as an ‘expression of general principles of law’ (Castaneda, 1969). The International Court of Justice (ICJ) has also ‘taken judicial notice of the Declaration’ (Cancado Trindade, 1985) and, in general, various UN organs have used the declaration as an ‘authoritative interpretation of human rights provisions of the United Nations Charter’ (Cancado Trindade, 1985; see also Humphrey, 1979). In fact, although some argue that the UN General Assembly resolutions on human rights are not ‘law making’, as they can only be declaratory in character (Guradze, 1971), it is beyond doubt that they have influenced the standards of international behaviour and that they have helped in the formation of international law, as well as state practice, particularly on the highly relevant topics of ‘decolonization, recognition of the right to self-determination of peoples, and permanent sovereignty of States over their natural resources’ (Cancado Trindade, 1985).

All rights are interrelated (Cancado Trindade, 1985), and that holds true especially for the rights supported by the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR); ‘without the latter, the former would have little meaning for most people’ (Cancado Trindade, 1985). This approach has been characteristic of the 20th century. Parallel developments appear to be, first, the emerging importance of individual rights within this scenario, and second, the increasing awareness of the relationship between human rights and environment. For instance, the Stockholm Declaration states that:

… man has the fundamental right to freedom, equality, and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.³

In addition, Principle 14 states that indigenous peoples have the right ‘to control their lands and natural resources and to maintain their traditional way of life’ (Shelton, 1994). The Convention on the Rights of the Child (CRC)⁴ emphasizes the need to protect health and the obligation of state parties to fight both malnutrition and disease and to take into consideration environmental pollution. The 1989 Convention of the International Labour Organization Concerning Indigenous and Tribal Peoples in Independent Countries supports environmental protection,⁵ and the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities also states that human rights violation may lead to environmental degradation and that, in turn, can result in human rights violations. The 1994 Principles declared by that commission affirm ‘the interdependence and indivisibility of human rights, an ecologically sound environment, sustainable development and peace’ (Shelton, 1994).

Moving beyond international law regimes, the African and Inter-American regional rights systems guarantee the right to a ‘safe and healthy environment’,⁶ and recognize the right of all peoples to ‘a generally satisfactory environment favorable to their development’. The Additional Protocol to the American Convention on Human Rights in the Area of Economic Social and Cultural Rights, 22 November 1969, Additional Protocol Art. 11, OAS Treaty Series No. 36, at l, provides that everyone shall have the right to live in a healthy environment, and similar concerns are expressed in several constitutions and are supported by litigation.⁷

These instruments and cases should be considered against the background of the ‘fundamental unity of the conception of human rights, as they all ultimately inhere in the human person’ (Cancado Trindade, 1985). But if the 20th century is characterized not only by the emergence of treaties and declarations supporting human rights, hence the inherent interrelation and the expanding presence of human rights related to the environment, the 21st century may be the locus of developing ‘third generation’ rights, even ‘ecological’ rights, as Prudence Taylor argues (Taylor, 1998).

If the unity of civil and political, with economic, social and cultural rights, together with the emergent diminution of state control over individual rights, is the present trend, then the rights of peoples as well as individuals to environmental/ecological ‘third generations’ rights is indeed the portent of things to come. Individuals have to be recognized through a cosmopolitan approach to human rights before special groups may follow and expect to be considered separately and not only as part of a state party.

The main point is that all these rights are fundamental, as well as interrelated. Hence they should be viewed as non-derogable, jus cogens rights, and the obligations they impose singly and jointly should be viewed as erga omnes, that is, beyond the limited reach of state and domestic law, and even that of treaties limited to those who are prepared to ratify them. This reality increases the gravity of any possible breach, and, at the same time, it demonstrates the complexity that is present when collective responsibility is to be imposed and enforced, justified though it might be.

THE BACKGROUND OF INDIGENOUS PEOPLES’ RIGHTS IN INTERNATIONAL LAW

International law is not only rules. It is a normative system harnessed to the achievement of common values, values that speak to all of us. (Higgins, 1994)

The first thing to note is that there is not one absolute definition of ‘indigenous peoples’ in international law, although they are increasingly emerging both as players and participants in UN instruments, as well as other documents (Metcalf, 2004). The main international law instrument that attempts to define indigenous peoples and their rights, is the International Labour Organization’s (ILO) Convention on Indigenous and Tribal Peoples.⁸ It treats as ‘indigenous’ the following groups:

• peoples whose social, cultural and economic conditions distinguish them from other sections of the national community;

• peoples whose status is regulated wholly or partially by their own customs and traditions;

• peoples who descend from populations that inhabited a country at the time of conquest or colonization; and

• self-identification of a group as indigenous or tribal is regarded as a fundamental criterion (Metcalf, 2004).⁹

There are other legal instruments that are relevant to both indigenous peoples and their environment, but only two of these are legally binding: The International Labour Organization (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, and the Convention on Biological Diversity.¹⁰ James Anaya (2004) traces the rights of indigenous peoples to the earliest times of international law, as they emerged as a topic of discussion after Christopher Columbus’s ‘discovery’.

From the writings of Roman Catholic missionaries such as Francisco de Vitoria, the maltreatment of the ‘other Indians’ is clearly documented, as was the natural law basis for the severe critiques of those ongoing practices (Anaya, 2004). Despite later criticisms of the natural law-based argument for human rights (see, for example, Baxi, 1998), the natural law approach can best provide the basis for an all-embracing system of human rights protection, a system that Grotius later attempted to separate somewhat from that doctrinal origin: ‘Grotius moved toward a secular characterization of the law of nature, defining it as a “dictate of right reason” in conformity with the social nature of human beings’ (Anaya, 2004; see also Grotius, 1925).

Nevertheless, it is only because natural law claims a supranational source for its moral perspective, so that it is not simply ‘humanist’ (Anaya, 2004), that natural law could and did claim to be able to judge positivist laws. For natural law, a law that violated the moral code was not truly law at all (Anaya, 2004; see also Westra, 2004c; King, 1990).¹¹

But in the century after Grotius, Emmerich de Vattel wrote his Law of Nations (1758) where he argued that natural law should simply be applied to nation/state as to individuals (Anaya, 2004). Perhaps this approach was foundational not only to the correct positivist law preference, but it may also be viewed as the origin of the later application of individuals’ rights and norms to corporate legal entities. Both moves proved to be highly damaging to the individual rights of natural persons. In modern times, the prevalence of eco-footprint harms renders these rights particularly vulnerable when the individuals at risk are part of an indigenous population (Westra, 2006).

In sum, the step from the natural law protection of all individual basic rights to the positivist move to subsuming individuals under the category of nation/states, papers over a vast area of differences that exist, for example, between minority groups and others, rich and poor, colonizers and colonized. The lack of recognition of these fundamental differences is highly damaging to indigenous peoples as they are slowly attempting to regain, singly and collectively, the rights they might have retained historically under a different conceptual understanding of the law.

In order to apply international law regimes regarding indigenous peoples to First Nations and other aboriginal groups, the initial steps are: first, to see whether they fit under existing accepted definitions of indigenous peoples; second, to discover what binding or suggestive legal instruments may exist that are relevant to the protection of their interests; and third, to evaluate what soft law instruments may be used to their advantage. In addition to the covenants mentioned above, the Earth Charter should also be included, with its strong component of support for all habitats and natural entities through ecological integrity, and with its explicit support for respect for indigenous peoples.¹²

PROTECTION OF INDIGENOUS PEOPLES THROUGH INTERNATIONAL MECHANISMS

After considering the various legal instruments that might be available to defend environmental and other indigenous peoples’ rights, the next question that should be raised is whether there is any group or body to monitor the regulatory instruments that exist for the protection of indigenous peoples. It is acknowledged that such protection is not adequate by most legal scholars, thus there is a ‘protection gap’ between human rights legislation and the problems faced by indigenous peoples (Anaya, 2004).¹³ Some of these problems include:

… impacts of development projects on indigenous communities, the implementation of recently enacted domestic laws to protect indigenous rights, the relationship between formal state law and customary indigenous law, indigenous cultural rights, indigenous children, indigenous participation in policy- and decision-making processes, and various forms of discrimination against indigenous individuals. (Anaya, 2004, pp223–4)

The Committee on the Elimination on Racial Discrimination¹⁴ has the authority to monitor human rights implementation, and it has adopted procedures to address all circumstances that could be viewed as ‘early warnings’ of situations that might escalate. This approach was urged by Aboriginal groups in Australia. The Committee often invokes the principal of self-determination, even when dealing with Canada and considering Canada’s report in 1992 and the dispute between the Mohawks and the government of Quebec where the question of self-determination was raised.¹⁵

The ILO Convention No. 169 investigated the situation of several Amazonian communities, and noted that ‘the right to life and to physical security and integrity is necessarily related to and in some ways dependent upon one’s physical environment’.¹⁶ This particular point cannot be overemphasized. In fact, when Cherie Metcalf lists two major categories of indigenous rights as the ‘cultural integrity model’ and the ‘self-determination model’, both also present in Anaya’s work (Anaya, 2004; Metcalf, 2004), I believe there is an even more basic model that has been omitted, ‘the biological/ecological integrity’ model. I believe that it is a model that is foundational to all considerations involving First Nations, with special emphasis on the Seven Generations Rule, as well as the legally binding international covenants, including the Convention on the Rights of the Child.

THE ‘THIRD MODEL’ AND FIRST NATIONS ENVIRONMENTAL RIGHTS ISSUES

The ‘indigenous’ perspective or world view is one of embeddedness and holistic integration and sharing, in which the environment is embedded within the identity and the existence of humans. (Kempton, 2005)

The ‘right to life and to physical security’,¹⁷ is clearly a description of the rights that Henry Shue termed ‘basic’: the right to security and subsistence (Shue, 1996). These rights precede both conceptually and in time, civil and political rights, and economic, social and cultural rights. The use of normal functions and the capacity for independent agency both depend on developing in environmental circumstances that permit and foster, rather than hinder, a human being’s normal development (WHO, 2002; see also Gewirth, 1982b; Westra, 2006). The biological integrity of individuals is entirely dependent on the ecological integrity of their surrounding habitat.

In the case of indigenous peoples, including First Nationss, the requirement for a healthy environment is vital: large cities and industrial centres may be able to mitigate some of the disastrous environmental conditions that affect...