Author: Ashwin Nair, School of Law, NMIMS Hyderabad
Abstract
In recent years, the recognition of Indigenous peoples as crucial participants in international law and environmental discourse has grown, marked by their involvement in key legal instruments like the Draft United Nations Declaration on the Rights of Indigenous Peoples and the International Labor Organization Convention No. 169. This shift underscores the importance of integrating Indigenous rights into environmental law, with models like cultural integrity and self-determination offering different approaches. The session highlighted the intersection of human rights and environmental issues, focusing on the substantive rights of Indigenous communities and their unique connection to their environment. Key legal cases globally, such as Delgamuukw v. British Columbia, Friends of the Earth v. Minister for the Environment, and Awas Tingni Community v. Nicaragua, emphasize the need for meaningful consultation with Indigenous peoples and respect for their land rights. This evolving legal landscape suggests a transformative potential for international environmental law, advocating for justice, equity, and the protection of Indigenous rights in the face of contemporary challenges.
Introduction
In recent years, the recognition of indigenous peoples as pivotal participants in international law and environmental discourse has grown significantly. Historically, indigenous peoples were primarily subjects of study; however, they have now become active contributors in developing significant legal instruments such as the Draft United Nations Declaration on the Rights of Indigenous Peoples. This shift highlights the importance of recognizing indigenous rights with environmental components, as evidenced by binding international agreements like the International Labor Organization Convention No. 169 and the Convention on Biological Diversity. The establishment of the Arctic Council in 1996 further underscores this development, providing indigenous groups with a platform to address environmental concerns impacting their ancestral lands. This evolving landscape suggests that integrating indigenous rights into international environmental law can potentially transform its structural and procedural foundations. As these rights gain recognition, two principal approaches emerge: the cultural integrity model, which ties environmental rights to the preservation of indigenous culture, and the self-determination model, which bases these rights on indigenous peoples’ inherent autonomy. While the cultural integrity model aligns with existing environmental law frameworks by emphasizing procedural rights, the self-determination model proposes more radical changes, advocating for substantive, enforceable rights that could redefine state sovereignty in environmental governance. Despite the dominance of the cultural integrity model, the potential of the self-determination model to foster a more inclusive and holistic approach to environmental law remains a compelling prospect, although it faces resistance due to the perceived risks and challenges it poses to the current international legal order.
Intersectionality of human rights and environmental issues
The session delved into the intricate relationship between human rights and environmental concerns, emphasizing the crucial need to protect the rights of Indigenous populations who are deeply connected to their natural surroundings. Jonathan Liljeblad, Associate Professor at the Australian National University, highlighted the historical impact of environmental legislation that has often impeded Indigenous peoples’ traditional way of life. He explored the substantive rights of Indigenous communities, including their rights to resources, life, health, culture, and religion, underscoring that these rights are inherently linked to their environment. Liljeblad argued that safeguarding these rights is essential for preserving the unique cultural and ecological knowledge that Indigenous peoples have developed over millennia, advocating for legal and policy frameworks that support their sustainable coexistence with nature.
Land claims by Orang Asli Community in Malaysia
Seira Sacha Abu Bakar, a member of the Committee on Indigenous Rights at the Malaysian Bar Council, illuminated the myriad challenges confronting the Orang Asli, one of Malaysia’s indigenous communities. Despite existing legislative measures like the Aboriginal Peoples Act of 1954, which aims to protect their rights, the Orang Asli continue to face marginalization, inadequate land protection, and the threat of exploitation. Abu Bakar pointed out the Act’s deficiencies, stressing the urgent need for more robust land claim mechanisms and the active involvement of the Orang Asli in legal processes. She advocated for reforms that ensure their voices are heard and their rights are fully recognized, underscoring the importance of empowering the Orang Asli to safeguard their heritage, lands, and future.
Indian Perspective on Indigenous Rights and Constitutionalism
Senior Advocate Harin P. Raval provided a profound Indian perspective on constitutionalism and the recognition of Indigenous rights, tracing the pivotal events leading to the formation of the 1994 Declaration on Indigenous Rights. He underscored the declaration’s comprehensive nature, emphasizing its focus on the survival, dignity, and well-being of Indigenous communities. Raval’s insights highlighted the importance of these international frameworks in advocating for Indigenous rights and ensuring that Indigenous voices are heard and respected within legal and policy-making processes.
In a nuanced analysis, Senior Advocate Aditya Sondhi revealed a troubling disconnect between India’s constitutional ideals and the lived experiences of Indigenous peoples. Despite a constitutionally sound framework, Indigenous communities often face appropriation and marginalization. Sondhi cited specific judicial decisions, such as Chebrolu v. State of Andhra Pradesh, where a five-judge Constitution Bench used derogatory language like “primitive” to describe certain communities, perpetuating stereotypes and misconceptions. He also highlighted the lingering impact of colonial legislative measures like the Criminal Tribes Act and the Habitual Offenders Act, which have perpetuated prejudices against Indigenous tribes based on socio-cultural practices.
Sondhi also delved into contemporary issues, critiquing the Forest Dwellers Act for prioritizing environmental concerns over the historical coexistence of Indigenous peoples with nature. He stressed the importance of acknowledging the unique relationship that Indigenous communities have with their environment, advocating for a narrative that respects their perspectives rather than patronizing or excluding them. Sondhi proposed reimagining the Indian Constitution from an Adivasi perspective, lamenting the lack of representation, including the absence of a Scheduled Tribe judge in the Supreme Court of India. He called for greater awareness, legal reforms, and a paradigm shift in the perception and safeguarding of Indigenous rights, emphasizing the need for serious discussions about justice and rights rather than relegating Indigenous issues to mere entertainment.
Indigenous Peoples’ Rights and Environmental Protection under
International Law
UN Declaration on Indigenous Peoples’ Rights:
The adoption of the United Nations Declaration on the Rights of Indigenous Peoples ( by the General Assembly on 13 September 2007, marked a significant success for justice and human dignity. It establishes universal minimum standards for the recognition, protection, and promotion of these rights, ensuring the survival, dignity, and well-being of Indigenous communities worldwide. Addressing both individual and collective rights, it encompasses cultural identity, education, health, employment, and language rights, while disallowing discrimination and fostering full and effective participation in all relevant matters. The Declaration affirms the right of Indigenous peoples to maintain their distinctiveness and pursue their economic, social, and cultural development priorities, promoting harmonious and cooperative relations between States and Indigenous communities.
International Labour Organization (ILO) Convention 169:
The Indigenous and Tribal Peoples Convention, 1989, also known as ILO Convention 169, is a landmark international agreement that addresses the rights of indigenous and tribal peoples, serving as a crucial predecessor to the Declaration on the Rights of Indigenous Peoples. Established in 1989, it recognizes the need to update international standards to better address the rights and aspirations of these communities. The preamble recalls foundational standards from the 1957 convention, the Universal Declaration of Human Rights, and other key international instruments. It acknowledges significant developments in international law and the evolving situations of indigenous peoples, emphasizing the need for new standards that move away from assimilationist perspectives. It recognizes the aspirations of indigenous peoples to govern their own institutions, maintain their identities, languages, and religions, and manage their economic development within their states. The convention highlights the ongoing denial of fundamental human rights to indigenous peoples and the erosion of their laws, values, and customs. ILO Convention 169 aims to rectify these injustices, promote respect for indigenous rights and cultures, and support their efforts to maintain their distinct identities and achieve socio-economic development goals.
Case Laws
The intersection of Indigenous rights and environmental laws has been addressed in various landmark case laws globally. Here are some notable cases that highlight this intersection:
Delgamuukw v. British Columbia (1997) – Canada:
In a landmark decision, the Supreme Court of Canada affirmed Aboriginal title to land, establishing that Indigenous land rights can only be extinguished through explicit legislation. This ruling underscored the significance of Indigenous oral history and traditional knowledge in validating land claims, reinforcing Indigenous peoples’ inherent rights to their ancestral territories. By acknowledging the deep-rooted connection between Indigenous communities and their lands, the court emphasized the necessity of respecting and protecting these relationships in contemporary legal frameworks. This decision marked a crucial step toward justice and reconciliation, highlighting the importance of Indigenous perspectives in land management and legal proceedings.
Friends of the Earth v. Minister for the Environment (2013) – Australia:
In this pivotal case, the Australian Federal Court addressed the government’s duty to safeguard Indigenous cultural heritage sites under the Environment Protection and Biodiversity Conservation Act. The court determined that the government had inadequately considered the potential impacts on Indigenous heritage, underscoring a critical oversight in the decision-making process. This ruling emphasized the imperative for meaningful consultation with Indigenous communities, ensuring their rights and cultural interests are integral to environmental assessments and planning. The decision underscored the necessity of respecting Indigenous knowledge and traditions, setting a precedent for more inclusive and respectful approaches to environmental governance that honor the rights and heritage of Indigenous peoples.
Wiwa v. Royal Dutch Petroleum Co. (1996) – United States:
The “Ken Saro-Wiwa case” stands as a poignant example of the intersection between human rights and environmental protection. Brought forth by the relatives of Nigerian environmental activist Ken Saro-Wiwa against Royal Dutch Shell, this lawsuit underscored the vital responsibility of corporations in safeguarding human rights and environmental standards. The court’s examination of Shell’s alleged complicity in human rights abuses tied to the environmental degradation in the Ogoni region highlighted the profound impact of corporate actions on indigenous communities. This landmark case emphasized the imperative for corporations to not only pursue economic interests but also to uphold ethical standards by respecting indigenous rights and protecting the environment.
Awas Tingni Community v. Nicaragua (2001) – Inter-American Court of Human Rights:
In a landmark decision, the court ruled that Nicaragua had infringed upon the rights of the Awas Tingni community by neglecting to demarcate and safeguard their ancestral lands. This ruling set a significant precedent in the realm of international human rights law, underscoring the crucial need to recognize and protect the land rights of Indigenous peoples. It highlighted the state’s obligation to preserve Indigenous territories and resources, reinforcing the broader principle that the protection of Indigenous land rights is integral to the pursuit of justice and equity. This case serves as a pivotal reminder of the importance of respecting and upholding the inherent rights of Indigenous communities globally.
Case of the Saramaka People v. Suriname (2007) – Inter-American Court of Human Rights:
The court’s decision in the case against Suriname marked a critical affirmation of Indigenous rights, as it found that the country had violated the rights of the Saramaka people by granting logging concessions without their consent. This ruling underscored the essential principle of obtaining free, prior, and informed consent from Indigenous communities before initiating any development projects on their lands. By reinforcing the intersection of Indigenous rights and environmental protection, the decision highlighted the importance of respecting the autonomy and environmental stewardship of Indigenous peoples. This case serves as a powerful reminder that sustainable development must be inclusive and respectful of the rights and voices of Indigenous communities.
The Maasai Mara Case (2012) – Kenya:
In a significant victory for the Maasai community, the High Court of Kenya ruled against the government’s decision to permit commercial land use within the Maasai Mara ecosystem, a move that endangered the community’s traditional way of life. The court’s decision affirmed the Maasai’s land rights and underscored the necessity of preserving their cultural heritage and the environment. This case highlighted the vital connection between indigenous land rights and environmental conservation, reinforcing the principle that protecting the rights of Indigenous peoples is essential for maintaining ecological balance and cultural continuity. The ruling serves as a precedent for the protection of Indigenous lands against unsustainable development practices.
Case of the Sani people v. Tanzania (2012) – African Court on Human and Peoples’ Rights:
In a landmark ruling, the court found Tanzania guilty of violating the rights of the Sani people by evicting them from their ancestral lands without adequate compensation or consultation. This decision reinforced the fundamental principle that Indigenous communities must be consulted and compensated fairly before any changes are made to the use of their territories. It underscored the necessity of respecting Indigenous rights and ensuring that their voices are heard in decisions affecting their lands. This case serves as a crucial reminder of the importance of upholding justice and equity in the treatment of Indigenous populations and protecting their rights against unjust displacement.
Conclusion
The growing recognition of Indigenous peoples as essential participants in international law and environmental discourse marks a significant transformation from their historical marginalization. This shift is evident in the development of pivotal legal instruments like the Draft United Nations Declaration on the Rights of Indigenous Peoples, the International Labor Organization Convention No. 169, and the Convention on Biological Diversity. The establishment of the Arctic Council in 1996 further underscores the importance of incorporating Indigenous rights into international environmental law, providing a platform for Indigenous groups to address environmental issues impacting their ancestral lands. Despite the predominance of the cultural integrity model, which aligns with existing environmental law frameworks by emphasizing procedural rights, the self-determination model offers a more inclusive and holistic approach, advocating for substantive, enforceable rights that could redefine state sovereignty in environmental governance.
The intersection of human rights and environmental concerns underscores the critical need to protect Indigenous rights, deeply connected to their natural surroundings. Experts like Jonathan Liljeblad and Seira Sacha Abu Bakar highlight the historical and ongoing challenges faced by Indigenous communities, emphasizing the necessity for robust legal and policy frameworks that recognize and protect their unique cultural and ecological knowledge. Landmark case laws globally, such as Delgamuukw v. British Columbia, Friends of the Earth v. Minister for the Environment, Wiwa v. Royal Dutch Petroleum Co., and others, reinforce the importance of recognizing Indigenous land rights and ensuring meaningful consultation with Indigenous communities. These rulings emphasize that Indigenous perspectives are vital in environmental governance and sustainable development. As the international community continues to evolve its approach to environmental law, integrating Indigenous rights into its framework remains crucial for achieving justice, equity, and sustainability in addressing environmental challenges.
FAQ
1. Why is the recognition of Indigenous peoples important in international law and environmental discourse?
In recent years, Indigenous peoples have shifted from being subjects of study to active contributors in international legal frameworks. Their involvement is crucial because they offer valuable perspectives on sustainable practices and environmental stewardship, as evidenced by their participation in the Draft United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and other international agreements. Recognizing their rights within these frameworks helps ensure their voices are heard and respected, promoting more inclusive and effective environmental governance.
2. What are the two principal models for integrating Indigenous rights into environmental law?
The two principal models are:
Cultural Integrity Model: This model ties environmental rights to the preservation of Indigenous culture. It aligns with existing environmental law frameworks by emphasizing procedural rights and ensuring that Indigenous cultural practices are considered in environmental decision-making.
Self-Determination Model: This model is based on Indigenous peoples’ inherent autonomy and advocates for substantive, enforceable rights. It proposes more radical changes that could redefine state sovereignty in environmental governance, seeking to give Indigenous communities greater control over their lands and resources.
3. What are some examples of how environmental legislation has historically impacted Indigenous peoples?
Jonathan Liljeblad highlighted that environmental legislation often disrupts Indigenous peoples’ traditional ways of life. Historical and ongoing environmental laws frequently neglect Indigenous rights, affecting their access to resources and undermining their cultural and ecological knowledge.
4. What challenges do the Orang Asli community in Malaysia face regarding land claims?
Despite legislative measures like the Aboriginal Peoples Act of 1954, the Orang Asli community faces marginalization, inadequate land protection, and exploitation. Seira Sacha Abu Bakar has pointed out the Act’s deficiencies and advocates for more robust land claim mechanisms and greater involvement of the Orang Asli in legal processes to protect their heritage and lands.
5. How does the Indian perspective address Indigenous rights and constitutionalism?
Senior Advocate Harin P. Raval highlighted the importance of international frameworks like UNDRIP in recognizing Indigenous rights within India’s constitutional framework. Senior Advocate Aditya Sondhi, however, pointed out a disconnect between India’s constitutional ideals and the reality faced by Indigenous communities, criticizing colonial-era legislative measures and advocating for reforms to better acknowledge and respect Indigenous rights.
6. What is the significance of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)?
UNDRIP, adopted on September 13, 2007, is a comprehensive international instrument outlining the rights of Indigenous peoples. It establishes universal standards for recognizing, protecting, and promoting these rights, including cultural identity, education, health, and participation in decision-making. It aims to ensure the survival, dignity, and well-being of Indigenous communities globally.
7. What does ILO Convention 169 entail?
The Indigenous and Tribal Peoples Convention, 1989 (ILO Convention 169), addresses the rights of Indigenous and tribal peoples. It emphasizes the need for updated international standards that reflect Indigenous aspirations, recognizing their right to govern their institutions, maintain their identities, and manage their economic development. It aims to rectify injustices and support Indigenous efforts to maintain their distinct cultures and achieve socio-economic development.
