Indigenous and forest peoples’ rights according to international agreements and their implications for international climate policies By Asbjørn Eide Professor emeritus, Norwegian Centre for Human Rights First Chairman, UN Working Group on Indigenous Peoples’ Righs (1982 -)

Purpose of the presentation Emphasizing the importance of indigenous peoples’ rights in climate policy negotiations and agreements. Illustrated by the threat of increasing demand for biofuel for transport, sought to be justified as a means of reduction of greenhouse gas emissions Biofuel does not reduce GHG emission but is harmful for indigenous peoples

Emphasizing the importance of indigenous peoples’ rights in climate policy negotiations and agreements.

Illustrated by the threat of increasing demand for biofuel for transport, sought to be justified as a means of reduction of greenhouse gas emissions

Biofuel does not reduce GHG emission but is harmful for indigenous peoples

Indigenous peoples in international and national law The long struggle to get recognition for the rights of indigenous peoples John Locke and the concept of property in land Terra nullius? Reversal: From Western Sahara 1975 to the Mabo case in Australia 1992, rejecting the terra nullius doctrine

The long struggle to get recognition for the rights of indigenous peoples

John Locke and the concept of property in land

Terra nullius?

Reversal: From Western Sahara 1975 to the Mabo case in Australia 1992, rejecting the terra nullius doctrine

Contemporary international law ILO convention 169, adopted 1989 The UN Declaration on the Rights of Indigenous Peoples, September 2007 The UN Permanent Forum on Indigenous Affairs

ILO convention 169, adopted 1989

The UN Declaration on the Rights of Indigenous Peoples, September 2007

The UN Permanent Forum on Indigenous Affairs

Who are the indigenous peoples? Those who descend from groups that lived traditionally in the region concerned before the borders of the state or of the colonial borders were drawn and before the arrivals of those who are presently dominant, And who have maintained some or all of their traditions or customs Self-identification as indigenous is an essential element in the definition of indigenous Problems in recognition by states

Those who descend from groups that lived traditionally in the region concerned before the borders of the state or of the colonial borders were drawn and before the arrivals of those who are presently dominant,

And who have maintained some or all of their traditions or customs

Self-identification as indigenous is an essential element in the definition of indigenous

Problems in recognition by states

Marginalisation and evictions of indigenous peoples Indigenous peoples are often evicted Their customs concerning ownership and users’ rights often not respected Land taken for plantations or for contract cash crop farming Growing concern: Plantations for agrofuel Large-scale development projects destroy livelihood for indigenous peoples

Indigenous peoples are often evicted

Their customs concerning ownership and users’ rights often not respected

Land taken for plantations or for contract cash crop farming

Growing concern: Plantations for agrofuel

Large-scale development projects destroy livelihood for indigenous peoples

Hopes and fears on biofuel Hopes and expectations Reduce global warming??? Delay and ameliorate the looming energy crisis??? Providing improved agricultural income for smallholders??? Fears and concerns Land grab and deforestation, with partcilarly negative consequences for indigenous and forest people. Examples from Indonesia Biodiversity reduction, other environmental harm Negative impact on food security and the right to food

Hopes and expectations

Reduce global warming???

Delay and ameliorate the looming energy crisis???

Providing improved agricultural income for smallholders???

Fears and concerns

Land grab and deforestation, with partcilarly negative consequences for indigenous and forest people. Examples from Indonesia

Biodiversity reduction, other environmental harm

Negative impact on food security and the right to food

UN Declaration: Prohibition of evictions; strengthening the right to land. Article 10: Indigenous peoples shall not be forcibly removed from their lands or territories. Article 26. 1: Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired .

Article 10: Indigenous peoples shall not be forcibly removed from their lands or territories.

Article 26. 1: Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired .

Tenure, customs and legal protection Article 26. 3 States shall give legal recognition and protection to these lands,territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned

Article 26. 3

States shall give legal recognition and protection to these lands,territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned

The right to redress or compensation for land taken Article 28.1 1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

Article 28.1

1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

Conservation and protection of their environment Article 29.1 Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.

Article 29.1

Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.

Priorities for development Article 32: 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

Article 32: 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

Duty of consultation and consent Article 32.2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

Article 32.2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

Promoting respect for and application of indigenous peoples rights Article 42: The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration. Article 43: The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.

Article 42: The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.

Article 43: The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.

Climate change: The agrofuel threat and the indigenous peoples Global warming a product of GHG emissions The predominant concern with GHG from transport GHG emission from deforestation and from disruption of wetland and peat cancels out all benefits derived from the use of biofuel in transport The expanding production often takes place by clearing areas inhabited by indigenous and forest peoples

Global warming a product of GHG emissions

The predominant concern with GHG from transport

GHG emission from deforestation and from disruption of wetland and peat cancels out all benefits derived from the use of biofuel in transport

The expanding production often takes place by clearing areas inhabited by indigenous and forest peoples

Conclusions In climate policies and agreements, indigenous peoples’ rights contained in soft or hard international and domestic law must be taken fully into account. Biofuel, here taken as example, will not except under very limited conditions reduce GHG emissions, but is likely to increase emissions. Misguided quest for biofuel is likely further to undermine the situation of indigenous and forest peoples. Do other climate policy measures represent similar risks?

In climate policies and agreements, indigenous peoples’ rights contained in soft or hard international and domestic law must be taken fully into account.

Biofuel, here taken as example, will not except under very limited conditions reduce GHG emissions, but is likely to increase emissions.

Misguided quest for biofuel is likely further to undermine the situation of indigenous and forest peoples. Do other climate policy measures represent similar risks?