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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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Public Regulation of the Use of Private Land: Opportunities & Challenges in Kenya (N. Sifuna)

Author

Nixon Sifuna

Keywords

Kenya, land use control, local management institutions, police power, private land, public intervention, public trust doctrine, state regulation

Abstract

In Kenya land is not only one of the most valuable belongings of any person, but a natural heritage that sustains all life forms and one that has to pass on from generation to generation by inheritance. Besides, land is a rather sensitive and emotive issue, for instance, having been central issue in the struggle for independence from colonialism. It is imperative therefore that land be used efficiently and responsibly to ensure it is available to posterity and in a form equitable and beneficial to the present as well as the future generations. Despite its importance, however, land in Kenya is a scarce resource that has to be available to competing uses and needs. It is also a resource whose use may result in environmental harm and degradation, jeopardise the interests of future generations in such land or negatively impact on its various uses. To ensure its efficient use and appropriate distribution of its benefits in the country, there is need for regulation of the use of any land irrespective of its regime of tenure in the public interest-whether is under state ownership, community (communal) ownership or private ownership. The power to regulate the use of private land is generally vested in state and is usually exercised by public institutions and officers on behalf of the state and for the citizenry. Indeed a legitimate government especially that which has been popularly and democratically elected by the people is a custodian of the public interest and welfare of the citizens, with the mandate to act on their behalf. Apart from state and governmental entities, this regulation is also exercised by local management institutions, most of which are informal. Despite its beneficial value in terms of promoting the public good, the exercise of the power of public regulation of private land in Kenya faces numerous challenges. Indeed this power if properly employed can not only enforce and promote the public good but ensure sustainable land use practices as well. In order that it may effectively play this noble role there is need to attenuate challenges while at the same time maintaining appropriate and effective safeguards to guard against its abuse or misuse to avoid mischief.

Citation

(2009) 5(1) Law, Environment and Development Journal 38

Paper

Public Regulation of the Use of Private Land : Opportunities and Challenges in Kenya

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Integration of smallholder wetland aquaculture–agriculture systems (fingerponds) into riparian farming systems on the shores of Lake Victoria, Kenya: socio-economics and livelihoods

Author(s)

J Kipkemboi
A.A. Van Dam
M.M. Ikiara
P. Denny

Keywords

Kenya, wetlands, integrated aquaculture production, socio-economic analysis, livelihoods, food security, fingerponds

Abstract

This paper presents the results of experimental fingerponds: an integrated flood recession aquaculture–agriculture production system in the Lake Victoria wetlands in Kenya. The overall aim of the study is to assess the potential of fingerponds as a sustainable wetland farming system for improving food security at the subsistence level and within the context of the existing livelihood activities. The contribution of this new activity to rural household livelihoods is evaluated. Since it is a sustainable technology, based on natural events, the production level is intermediate and the benefits may not be high in the short term. Economic analysis shows that the gross margin and net income of fingerponds is about 752 and 197 Euros per hectare per year, respectively. This is about an 11% increase in the annual gross margin of an average rural household around Lake Victoria. The additional per capita fish supply is 3 kg per season or more from a 192 m² pond. The potential fish protein supply of 200 kg/ha is high compared with most existing terrestrial protein production systems. Fingerponds have the potential to contribute to household food security and to improve livelihoods. Sensitivity analysis indicates that biophysical variations, which may occur from one wetland to another, have implications for the functioning, and consequently the economic performance, of fingerponds. This reinforces the need for the integration of these systems into other household activities to buffer the household against potential risk

Citation

(2007) 173 Geographical Journal 257-272

Paper

Integration of smallholder wetland aquaculture–agriculture systems (fingerponds) into riparian farming systems on the shores of Lake Victoria, Kenya: socio-economics and livelihoods

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Using Eminent Domain Powers to Acquire Private Lands for Protected Area Wildlife…(N. Sifuna)

Author

Nixon Sifuna

Keywords

Compensation, compulsory acquisition, eminent domain, opportunity cost, parks, private lands, protected areas, tourism, wildlife

Abstract

Under Kenyan law, the provisioning for eminent domain is in the Constitution, as well as in legislation. Exercising these powers, the State may compulsorily acquire private lands, provided the acquisition is for a public good and compensation is given. Generally, eminent domain is a fairly contentious legal issue: the law on the one part guarantees the sanctity of private property and, on the other, allows the government to expropriate such property even against the will of the landowner. With regard to land, the State has a legal obligation to respect and protect privately owned lands, and a corresponding moral obligation to ensure that land is available to sustain other forms of life as well.

While Kenya’s wildlife estate is slightly less than eight per cent of the total land area, it is fast shrinking due to an increasing human population and human activities. As such, the wildlife sector has a bleak future unless the trend is reversed. One way of doing this is by using the powers of eminent domain to acquire private lands for purposes of creating and expanding the wildlife protected areas and their support zones. However, for this manner of acquisition to be desirable and advisable, it has to be fair, humane, democratic and honest. This is to ensure that conservation does not violate the rights of people or undermine livelihoods.

Incidentally, the process of eminent domain in Kenya is bereft of these attributes and tends to be draconian and militaristic. The paper critically examines the potential of using eminent domain for acquiring lands for protected area conservation and makes recommendations for reforms.

Citation

(2006) 2(1) Law, Environment and Development Journal 84

Paper

Using Eminent Domain Powers to Acquire Private Lands for Protected Area Wildlife Conservation: A Survey under Kenyan Law

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