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Mini-Forum on Legal Empowerment and the Environment


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This presentation builds upon some of the themes discussed in “Legal Empowerment of the Poor and Environmental Justice in Latin America and the Caribbean: Issues and Challenges” written by Michael MacLennan and Leisa Perch.

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Mini-Forum on Legal Empowerment and the Environment

  1. 1. Mini-Forum on Legal Empowerment and the Environment Legal Empowerment and the Poor andEnvironmental Justice in Latin America and the Caribbean: Issues and Challenges Global South-South Expo Hofburg Palace, Vienna November 22nd, 2012Presenter: Leisa Perch, Policy Specialist/Team Leader - Rural and Sustainable Development International Policy Centre for Inclusive Growth (IPC-IG)
  2. 2. INTRODUCTION TO IPC-IG IPC-IG is a partnership of the Government of Brazil and UNDP based in Brasilia, Brazil. Focus of our research is international; specifically focused on the South and on South-South Cooperation and Learning. Themes for IPC’s applied policy research: Macro-Economic Policy, Rural and Sustainable Development, Social Protection, Development Innovations. In Rural and Sustainable Development, the focus in on 3 key areas: • Inclusive Green Economies/Green Growth • Sustainable Rural Growth • Social and Political Innovations for Sustainable Development *See more on our webpage:
  3. 3. OUR WORK: SCALING UP FOR SOCIALSUSTAINABILITYTargeted Strategies for: 300 million Indigenous PeoplesRural PoorIndigenous PeoplesPersons with Disabilities 600+ millionPLHIV Persons with DisabilitiesIDPs and refugees 1.4 billion Rural Poor globally 30+ million IDPs/refugees All rights reserved by UNDP Pakistan
  4. 4. OVERVIEW OF THE PAPER- Introduction to the theme and the issues- The Poverty-Inequality-Environment Nexus in LAC- Evolving Notions of Justice and Entry points for Legal Empowerment- Collective and Individual Rights in LAC and the Role of the Law- Legal empowerment for greater natural resource benefit- sharing and burden-sharing - Appeals to law/legal reforms - Increasing access to the law - From increased access and specific rights to securing real justice - Addressing user rights and property rights in the context of REDD_- Key Takeaways
  5. 5. INTRODUCTION TO KEY THEMESAND ISSUES harmful impacts of natural resource exploitation fall disproportionately on the poor and indigenous peoples Policy solutions tend to be in the form of:  Effective governance  progressive institutional frameworks, “Most indigenous peoples live on  greater access to effective the margins….their purses are not remedies as strong as others when coping  the legal empowerment of the with climate change.” Chief Charles Williams of the Kalinago Territory in Dominica poor - at the UN-affiliated Peoples’ Summit on Global Climate Change in 2009. Legal Reform alone often not enough
  6. 6. ENVIRONMENTAL JUSTICE Environmental justice has been described as “an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs related to the impacts of ecological change on the poor and vulnerable in society.”* Notions of environmental justice are being shaped by broader international policy, norms and principles, often creating a dualistic evolution of justice where pressures are exerted by social movements within states and also are derived from global crises and policy advances.*Khoday, K and Perch, L. a. (2012). Green Equity: Environmental Justice for More Inclusive Green Growth. IPC-IG. Brasilia: IPC-IG.
  8. 8. UNIQUENESS OF THE LAC REGION  not the poorest region of the world, it is often identified as the most unequal, particularly LA.  Montserrat (5K) to Brazil (200MN)  Traditions, rights and historical inequalities & intensified debates about ownership of environmental assets and endowments. Protests across LA in particular.  Regional correlation between the structure of production, labour market participation and income inequality (UNECLAC, 2012)  Caribbean: Resource dependence = inter- relationships between poverty, environmental sustainability, the structure of the economy and the sustainability of growth  Caribbean: Multiplier effects from natural hazards + poverty (Estimated 38 per cent poverty rate paradoxical given high HDI)
  9. 9. UNIQUENESS OF THE LAC REGIONFigure 1. Variation in Inequality in Labour and Total Table 1.Change in HDI accounting forIncome,Gini Index, 2002-2010 inequality in select CARICOM States Country HDI 2011 Inequality- Adjusted HDI Bahamas 0.771 0.655 Guyana 0.663 0.493 Haiti 0.454 0.278 Jamaica 0.727 0.610 Trinidad and 0.760 0.655 Tobago
  10. 10. MAJOR POVERTY-ENVT-INEQUALITY ISSUES  the social Injustice of environmental problems  Caribbean still largely shaped by colonialism and discriminatory patterns of wealth, social equity and resource control  the disproportionate impact of climate change on low-lying SIDS and States with potential for entire populations to be come the climate-poor  links between social equity, social justice, environmental protection and ecological sustainability (CC)  fair and equitable access to resources for development  Indigenous population in the region - about 40 million people (LA and C).  In Mexico alone, there are 56 recognized indigenous groups and 62 languages. In Guatemala, 86.6 per cent of indigenous people are considered poor, while in Mexico, 80.6 per cent are poor (World Bank).  Community protests concerning potential mining investments have spiked, largely due to the negative environmental impacts on health and livelihoods (e.g. Peru).
  11. 11. LONG TERM CLIMATE RISK & THEDEVELOPING SOUTH Table 2 – 2010 Risk IndexHarmeling, 2012
  13. 13. MAPPING THE EVOLUTION Development in LAC  (colonial,post-colonial, nationalist or otherwise) have involved the exploitation of natural resources for economic growth.  Economic structure of colonization = unlimited access to land, labour, resources and minerals and the total capture of resources. Lasting impact of these economic structures ( who has access to what resource) Re-dress (top-down):  Nationalization of resources at will (in Argentina, Bolivia and Venezuela);  the allocation of territorial rights (in Brazil and the Commonwealth of Dominica);
  14. 14. MAPPING THE EVOLUTION (2) Land as economic empowerment:  nationalized approaches have eliminated some of the basic ethnic/racial biases in landownership e.g. the Tenantry Freehold Act of 1980 in Barbados radically shifted the distribution of land ownership Economy and social power:  Economy as instrument for redistribution and green growth - importance of continued social inclusion that prioritizes rural areas, indigenous peoples and women  State intervention and the implementation of public policies to assume the costs of transition (SELA, 2012:18) Climate Finance:  Expanse of justice/equity discourse to include access to global finance and prioritization in fund allocation (esp. Caribbean)
  15. 15. JUSTICE AND REAL JUSTICE? Ancestral Lands After landmark judgements in  specific attention to the 2007 and 2010 in favour of the Maya villages of Conejo and needs of women and Santa Cruz (of Belize) full children (IACHR) legal ownership over their  State obligation to give lands and its resources as well special attention to as the remaining Mopan and indigenous peoples, tribes Q’eqchi villages in Toledo and their members District, In 2011 the Maya (IACHR, 2009:18) in Conejo woke up to the Land Reform and Gender: sound of explosions right outside their village. Without  40 per cent of Haiti’s any warning, US Capital rural households are Energy had cleared some four FHH miles of forest. Additionally,  Can own, buy, sell and seismic testing ignited a inherit land and pass it to massive fire that destroyed their heirs more than 400 acres of the newly discovered ecosystem.  But do not enjoy fully equal inheritance rights.
  16. 16. poor infrastructure Exposure to natural disaster Social Susceptibility Social Resilience Fem ale -he ad ed ion ho use d u cat ho vel e ld t e le Ad eq u a Sub s t anda rd ho using ell-b eing poor planning Nation Health w (Individual, s Low health statu Strength of social Household or capital Community) as Econo mic w e ar e ell pron -being ster ng g in disa - be i Adequ Livin l ate le ic we l v els of housin nom g f e co lev el o Low Measure of social vulnerabilityConstruct of Social Vulnerability developed by Asha Kambon, 2005
  17. 17. ENVT JUSTICE AND THE CREATIONOF NEW GROUPS “Club rights”: the rights of specific groups within society - most significant advances in environmental justice emerging in the expansion of indigenous rights and social justice avenues for indigenous peoples.  Indigenous Peoples: “social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live,” (The United Nations Permanent Forum on Indigenous Peoples)  Citizens of SIDS: Environmental threats potentially undermine the realization of individual rights by threatening life, livelihoods and health in a way that potentially affects entire states  Coastal dwellers and those dependent on coastal livelihoods: Climate change could displace specific groups of people**.*( px)
  18. 18. EVOLVING FACE OF WHO NEEDSACJ Organic farmer, Roseau Market, Dominica
  20. 20. RIGHTS OR ECONOMIC RIGHTS? “It is not only the legal rights that thepoor need, it is the capacity to exercisetheir economic rights effectively.”(Mennen, 2010).
  21. 21. INCREASING OVERLAP/CONTESTATION • adequate housing • water quantity and quality of • non-discrimination environmental resources • equality between men and women users  privacy and respect for the access to services home  peaceful enjoyment of possessions  freedom of movement  protection from displacement property owners Mairi Beautyman
  22. 22. COLLECTIVE AND INDIVIDUALRIGHTS AND RESPONSIBILITIES Right to development both for people and the state  the International Covenant on Economic, Social and Political Rights suggests the following guarantee by the State for its peoples: All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. (Part 1, Article 1: 2). Forest resources? individual and collective rights can pit the rights to Figure 6: Vendors sell vegetable charcoal at La Saline market in Port-au-Prince. Nearly all of the development and livelihood directly 30 million trees planted in the 1980s with a against the right to protection from US$22.8 million project by the U.S. Agency for International Development, have been cut down to displacement (e.g. Haiti). make charcoal for cooking. The resulting erosion has made the island more vulnerable to devastating floods each hurricane season.
  24. 24. APPEALS TO LAW/LEGALREFORMS IN THE PURSUIT OFENVIRONMENTAL JUSTICE National laws, legal reform etc- Ecuador: - Constitutional amendment in Ecuador to confer Rights of Nature (2008): Right of Nature to exist and its value to society.- Mexico’s General Law on Climate Change - One of the most direct statutes addressing the issue of climate change (2012)*. - Guarantees, inter alia, the right to a healthy environment.- Barbados: - The CZMA confers the right to protect the environment as well as coral reefs as well as the right to levy damages for reef destruction. - 1999 Ombudsman report noted “the sea” as one of most precious natural assets for Barbadians*- * *
  25. 25. INTER-AMERICANCOMMISSION/COURT OF HUMANRIGHTS In October 2002, the IACHR recognized the connection between environmental degradation and human rights, applying a rights- based approach to environmental protection and justice. 144th Session (March 2012), schedule of hearings included six cases concerning indigenous rights + a hearing on the Human Rights Situation of Persons Affected by the Extractive Industries in the Americas.Box 1. The Saramaka People v. Suriname In The Saramaka People v. Suriname , the IACHR addressed logging and mining concessions on Saramaka territory that were awarded by the Government of Suriname without full and effective consultation. In its ruling for the Saramaka people, the Court outlined three safeguards that the State must abide by to avoid inflicting future social and environmental injustices on indigenous peoples and their lands: 1. effective consultations, as well as free, prior and informed consent in connection with development and investment projects; 2. sharing of benefits from development plans; and 3. prior and independent environmental and social impact assessments. These three safeguards serve as a good model for other states seeking to mitigate the risk of committing or enabling environmental injustices. (Orellana, 2008, 841)
  26. 26. INTER-AMERICANCOMMISSION/COURT OF HUMANRIGHTSState/Country Date Incident DetailsPanama February 7, 2012 (noted by IACHR) Members of the Ngöbe Buglé indigenous group blocked the Inter- American highway for several days in a protest related to the discussion in Congress of Bill No. 415, “which establishes a Special Regime for the Protection of Mineral, Water, and Natural Resources in the community of Ngöbe Buglé.”Guatemala March 27, 2012 In 2011, five men were arrested and charged with taking part in the Plan de Sánchez Massacre of 268 people, mostly members of the Maya indigenous community. This case has since been reopened. The IACHR notes that there is a protection deficit of indigenous territorial rights in Guatemala, characterized by failures to recognize indigenous lands; the lack of a property registry or cadastre system that recognizes ancestral territories and enables the protection of lands that belong to indigenous peoples; the acquisition of lands by companies without the States direct supervision; and the execution of investment, development and natural resource extraction projects in contradiction of international norms in these matters.Venezuela September 5, 2012 Illegal miners allegedly opened fire on the Irotatheri, where approximately 80 members of the Yanomami Peoples were gathered. (IACHR release) Individuals in a helicopter opened fire on the group, including children and elders. The IACHR asserts that states have an obligation to protect members of the Yanomami Indigenous Peoples from third-party attacks and from those interested in the natural resources that exist in Yanomami
  27. 27. FROM INCREASED ACCESS ANDSPECIFIC RIGHTS, TO SECURINGREAL JUSTICE In Trinidad and Tobago:  Series of protests over an extended period seems to have halted the establishment of one of two proposed smelters.  Arguments for:  Macro-economy - importance of these activities and their economic benefits.  Arguments against:  Environment and health related externalities  Plans for a second plant, proposed for LaBrea, were also scrapped, despite local approval for the proposal.  Interesting court ruling ( temporarily halting construction of the LaBrea smelter)  finding that environmental approval for the smelter was granted in an “outrageous, irrational and procedurally irregular manner.”  The judge cited the lack of consideration in granting a Certificate of Environmental Clearance by the Environmental Management Agency of the cumulative impact of the smelter and two other industrial projects, namely a power plant and a new port facility.
  28. 28. USER AND PROPERTY RIGHTS INTHE CONTEXT OF REDD+:EMERGING CHALLENGES FOR EJ Arguments for:  Reduction of emissions through avoided emissions and sequestration  Mobilize resources for the poor  Recognizes ecosystem services Arguments against:  Limits user rights  Appropriately compensating for the loss of such rights?  Given an economic value? Other Questions:  who owns or has rights to carbon (Parkinson and Wardell (2010: 6).  Resolving conflicts………between agricultural communities and indigenous peoples” (IDLO, 2010).
  29. 29. FORESTS: BEYOND CARBON SEQUESTRATION change-success program-could-threaten-rights-of-350-million-people.html • Co-benefits: biodiversity conservation, forest recuperation and sustainable harvesting of forest resources at global, national and local levels •Indigenous people’s role in forest and biodiversity conservation through their livelihoods absent in policy initiatives. •References to indigenous peoples are now increasingly common but in what context?
  31. 31. KEY TAKE-AWAYS Strengthening marginalized groups’ trust in the institutions and authorities. Indigenous autonomy regimes, increased corporate citizenship and a rights based-approach to environmental protection have also helped. Rights at the state, regional or international level are effective only when a state enables their implementation. Legally empowered organizations must mobilize to ensure that social and political conditions in each country allow policies to be proposed and discussed. Legal decisions in favour of indigenous or marginalized groups need to be applied to their daily lives. Non-legal mechanisms (social movements) can play a significant complementary role, by enhancing societal roles in the development process. Need to update the “socio-environmental compact”. Need to look at cumulative effects and not just individual cases.