Category Archives: Self-Determination

Climate Change and Indigenous Peoples: The Search for Legal Remedies (eds. R. S. Abate and E. A. Kronk)

Editors

Randall S. Abate and Elizabeth Ann Kronk

Keywords

environment, climate change, environmental law, law – academic, environmental law, human rights, law and development, politics and public policy, human rights, Asia, Kenya, Arctic, South America, Pacific Island Nations, Australia, New Zealand, Africa, indigenous rights, sovereignty, climate justice, adaptation, equality, water rights, Aboriginal communities

Abstract

Indigenous peoples occupy a unique niche within the climate justice movement, as many indigenous communities live subsistence lifestyles that are severely disrupted by the effects of climate change. Additionally, in many parts of the world, domestic law is applied differently to indigenous peoples than it is to their non-indigenous peers, further complicating the quest for legal remedies. The contributors to this book bring a range of expert legal perspectives to this complex discussion, offering both a comprehensive explanation of climate change-related problems faced by indigenous communities and a breakdown of various real world attempts to devise workable legal solutions. Regions covered include North and South America (Brazil, Canada, the US and the Arctic), the Pacific Islands (Fiji, Tuvalu and the Federated States of Micronesia), Australia and New Zealand, Asia (China and Nepal) and Africa (Kenya).

PART I INTRODUCTORY CONTEXT AND PRINCIPLES
1. Commonality among unique indigenous communities: an
introduction to climate change and its impacts on indigenous
peoples 3
Randall S. Abate and Elizabeth Ann Kronk
2. Introduction to international and domestic climate change
regulation 19
Deepa Badrinarayana
3. Introduction to indigenous peoples’ status and rights under
international human rights law 39
Lillian Aponte Miranda
4. Introduction to indigenous sovereignty under international
and domestic law 63
Eugenia Charles-Newton and Elizabeth Ann Kronk
5. Climate change and indigenous peoples: comparative models
of sovereignty 79
Rebecca Tsosie
6. Indigenous environmental knowledge and climate change
adaptation 96
Maxine Burkett

Climate change and indigenous peoples
PART II GLOBAL PERSPECTIVES
International Organizations
7. REDD+: its potential to melt the glacial resistance to
recognize human rights and indigenous peoples’ rights at the
World Bank 123
Leonardo A. Crippa
South America
8. REDD+ and indigenous peoples in Brazil 151
Andrew Long
9. REDD+: climate justice or a new face of manifest destiny?
Lessons drawn from the indigenous struggle to resist
colonization of Ojibwe Forests in the nineteenth and twentieth
centuries 178
Philomena Kebec
Lower 48 States of the United States of America
10. Natural resource development and indigenous peoples 199
Sarah Krakoff and Jon-Daniel Lavallee
11. Climate change and tribal water rights: removing barriers to
adaptation strategies 218
Judith V. Royster
Arctic
12. Canadian indigenous peoples and climate change: the
potential for Arctic land claims agreements to address
changing environmental conditions 243
Sophie Thériault
13. America’s Arctic: climate change impacts on indigenous
peoples and subsistence 263
Peter Van Tuyn
14. The Saami facing the impacts of global climate change 287
Irina L. Stoyanova
15. Complexities of addressing the impacts of climate change on
indigenous peoples through international law petitions: a case
study of the Inuit Petition to the Inter-American Commission
on Human Rights 313
Hari M. Osofsky

Pacific Island Nations
16. Climate change, legal governance and the Pacific Islands: an
overview 339
Erika J. Techera
17. Fiji: climate change, tradition and Vanua 363
Victoria Sutton
18. Islands in the stream: addressing climate change from a small
island developing state perspective 377
Clement Yow Mulalap
19. The rising tide of international climate litigation: an
illustrative hypothetical of Tuvalu v Australia 409
Keely Boom
Asia
20. The impacts of climate change on indigenous populations in
China and legal remedies 441
Wenxuan Yu, Jingjing Liu and Po Dong
21. Changing climate and changing rights: exploring legal and
policy frameworks for indigenous mountain communities in
Nepal to face the challenges of climate change 468
J. Mijin Cha
Australia and New Zealand
22. Climate change impacts to Aboriginal and Torres Strait
Islander communities in Australia 493
Megan Davis
23. Negotiating climate change: Māori, the Crown and New
Zealand’s Emission Trading Scheme 508
Naomi Johnstone
Africa
24. Climate change, law and indigenous peoples in Kenya:
Ogiek and Maasai narratives 535
Patricia Kameri-Mbote and Elvin Nyukuri

Citation

2013. Climate Change and Indigenous Peoples: The Search for Legal Remedies, eds. Randall S. Abate and Elizabeth Ann Kronk. Cheltenham: Elgar.

Paper

Climate Change and Indigenous Peoples: The Search for Legal Remedies

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Indigenous Rights and the Environment: Evolving International Law (C. Metcalf)

Author

Cherie Metcalf

Keywords

indigenous rights, international law, international environmental law, environmental rights, cultural integrity model, self-determination, recognition, autonomy, state sovereignty, participation, sustainability, sustainable environmental management

Abstract

This paper explores the relationship between indigenous peoples’ rights in international law and international environmental law. Two models underlie the protection of indigenous environmental rights. A “cultural integrity” model recognizes indigenous peoples’ environmental rights as a corollary to the protection and preservation of indigenous culture. In the alternative ‘self-determination” model, indigenous peoples’ environmental rights flow from their recognition as distinct communities with an inherent degree of autonomy and control over their own development. Both models have the potential to transform international environmental law. Recognition of indigenous peoples’ rights allows principles of international environmental law to pierce the veil of state sovereignty. The cultural integrity model offers the potential to broaden the legal framework of international environmental law
through the inclusion of human rights instruments. The self-determination model may lead to indigenous peoples’ independent participation in international agreements addressing environmental concerns. There is a crucial difference between the models. The cultural integrity model incorporates a connection between indigenous rights and sustainable environmental management while the self-determination model is based on indigenous peoples’ right to choose their own environmental policy. There is no inherent relationship between recognition of indigenous rights and sustainable environmental management in the latter model. The implications for international environmental law are more uncertain.

Citation

(2003) Ottawa Law Review 35 (1) 103-40

Paper

Indigenous Rights and the Environment: Evolving International Law 

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Indigenous Peoples and the Environment: Convergence from a Nordic Perspective (L. Watters)

Author

Lawrence Watters

Keywords

indigenous rights, environment, legal systems, globalisation, internationalization, Sami, sovereignty

Abstract

Part I of the article introduces the larger picture and the process of transition in which indigenous peoples like the Sami are found. The discussion focuses on both the convergence of legal systems generally which influence the protection of indigenous peoples in international and domestic law and the concomitant impacts related to the concentration of new forces from trade, technology and communications, or, in a word, globalization. These dynamics, in concert with the ‘internationalization’ of the environment, have special consequences for indigenous peoples.

Part II considers the Sami heritage, prior to contemporary conflicts. The evolution of their status is highlighted with developments
in the law at the domestic level. Part III moves from the past, considering the topography of the protection for indigenous
peoples like the Sami in international conventions, emphasizing the emerging, shared perspective of states toward the special status
of indigenous peoples. This includes the process of change in traditional notions of sovereignity as states recognize new imperatives on behalf of the environment, culture and human rights. Part IV shifts from consideration of the larger framework to its
contemporary implementation in Norway concerning the Sami, natural resources and the environment. Part V examines the outcome of this process in a preliminary critique, assessing the implementation of the principles and standards for the protection of the Sami as well as the next stage in the resolution of issues relating to governance within the context of sovereignity and
self-determination.

Citation

(2002) UCLA Journal of Environmental Law and Policy 20 pp. 237-304

Paper

Indigenous Peoples and the Environment: Convergence from a Nordic Perspective

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The Right to Free, Prior and Informed Consent: Indigenous Peoples’ Participation Rights Within International Law (T. Ward)

Author(s)

Tara Ward

Keywords

Indigenous Rights, United Nations, Human Rights, International Labour Organisation, Self-Determination

Abstract

The right of indigenous peoples to free, prior, and informed consent (FPIC) in relation to development, infrastructure, and resource extraction projects is currently being debated within international law. Particularly contentious is the question of whether the right to FPIC is an existing customary international legal principle and if so, whether this constitutes a full veto right for the affected peoples. This article examines this question by analyzing the development of FPIC within international law and applying the current international standards to two distinct case studies. The first is the Lubicon Cree in Alberta, Canada, and the second is that of the Mayan Communities of Sipakapa and San Miguel Ixtahuacan, Guatemala. Ultimately, these two cases demonstrate how similar violations of indigenous peoples rights can occur in two very different contexts.

While the most explicit expression of FPIC is found in the United Nations Declaration on the Rights of Indigenous Peoples, by examining the jurisprudence of the United Nations Human Rights system, International Labour Organisation Treaty system, and Inter-American Human Rights system, it is clear that the various treaty bodies are interpreting existing rights to culture, property, and non-discrimination as the right of indigenous peoples to participate in decisions that impact their lands or resources. Although it is clear that as of yet the right to full FPIC is not part of customary international law, there is a well-defined consensus that States at a minimum have an obligation to consult with indigenous peoples in good faith with regard to any projects found within their lands or which impact traditionally used resources.

Furthermore, this analysis, which consists of both of the above-mentioned case studies and international human rights jurisprudence, highlights the extent of the gap that exists between the standards being developed and current State practice. In the end, this article finds that in order to effectively implement the FPIC and other participation rights, consultations must be recognised as expressions of the right to self-determination and not merely as administrative procedures.

Citation

(2011) 10 Northwestern Journal of International Human Rights 54

Paper

The Right to Free, Prior and Informed Consent: Indigenous Peoples’ Participation Rights Within International Law

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Self-Determination, and Environment-Based Cultures (P.M. Manus)

Author

Peter M. Manus

Keywords

Self-Determination, indigenous peoples, environmental rights, sovereignty, human rights

Abstract

This article presents a survey of both the rhetoric and applications of international law addressing indigenous peoples’ environmental rights. Part I assesses three terms that are widely used in international instruments – sovereignty, human rights, and self-determination – for their applicability to the environment-related interests of indigenous peoples. Part II presents a sixty year litany of international instruments as a means of tracing the evolution of global awareness of the uniquely vulnerable position that indigenous people occupy in the world community in connection with their environmental interests. Part III offers a comparative analysis of the cases Kitok v. Sweden and the Awas Tingni Community v. Nicaragua, and Part IV discusses the draft American Declaration on the Rights of Indigenous Peoples.

Citation

(2005) 23 Wisconsin International Law Journal 553

Paper

Self-Determination, and Environment-Based Cultures: The Emerging Voice of Indigenous Peoples in International Law

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