16 SEPTEMBER 2019

Indigenous Peoples as Environmental Stewards: Fact or Legal Fiction?

by Mariana Monteiro de Matos*

If you are unfamiliar with the concept of indigenous peoples, you have probably checked out the Wikipedia entry of this word before starting to read this article. (Moreover, in case you are familiar with this concept, you have already read the Wikipedia’s entry on indigenous peoples). Accordingly, on Wikipedia’s page on indigenous peoples, you looked at persons standing in beautiful landscapes and read the following paragraph:

“Indigenous peoples, also known as first peoples, aboriginal peoples or native peoples, are ethnic groups who are the original settlers of a given region, in contrast to groups that have settled, occupied or colonized the area more recently. Groups are usually described as indigenous when they maintain traditions or other aspects of an early culture that is associated with a given region.”

Wikipedia reflects a popular idea associated with indigenous peoples - their attachment to the lands. Digging into this idea, you would probably come across the myth of the noble sauvage and the letter of the Portuguese Pero Vaz de Caminha. However, if you were interested in international environmental law, you would be better with exploring the European scenario and the Sámi people.

A landmark case for the indigenous peoples’ international movement was the Alta affair in Norway. In the 70s, the Norwegian Government started a project to build a hydroelectric dam in the Northern Norway that is the territorial homeland of the Sámi. This project would have caused a massive displacement of Sámi residents and a disruption of their traditional practices of reindeer herding and fishing. After a considerable opposition by the Sámi and their supporters, the government changed the original project and built therefore the Alta dam with a design that has had less negative impacts on the Sámi people. By doing so, Norway through its Secretary of State at the Foreign Ministry linked the concept of indigenous peoples directly to the Sámi of Norway (Minde, 1996, p. 240). At that time, the ILO Convention 107 (1957) was the only international legal instrument recognizing specific rights to indigenous peoples and Norway had not ratified it.

The key legacy of the Alta affair is the intertwinement between environmental issues and indigenous peoples. The Sámi opposition to a state project affecting their traditional lands is similar to the one of the indigenous peoples on the borders of the Xingu river in Brazil (IACHR, 2011) and to the one of the Kuna and Emberá peoples in Panama (IACtHR, 2014). In that sense, the Alta affair made clear that indigenous peoples have been facing similar struggles all around the world. This has helped to shape the agenda of the indigenous international movement. Thus, degradation of lands, use of natural resources in an industrial scale, pollution of land, air and water, destruction of wildlife have become common causes that unite on a global basis the claims of indigenous peoples.

Sámi family in Norway around 1900 (Photo: Wikimedia Commons).

Indigenous issues have had a tremendous effect in international environmental law. This field of law was responsible for conceiving the notion of indigenous peoples as environmental stewards. In this regard, a milestone refers to principle 22 of the Rio Declaration on Environment and Development (1992): “Indigenous people and their communities, and other local communities, have a vital role in environment management and development because of their knowledge and traditional practices.” In the same vein, it followed the preamble and Article 7(j) of the Convention on Biological Diversity (1992), and Article 26.3(a) of Agenda 21 of the United Nations (1992). Taken altogether, such legal instruments constitute the legal basis in international environmental law with respect to indigenous issues.

International human rights law has borrowed from international environmental law the notion of indigenous peoples as environmental stewards. The recital 8 of the preamble of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) highlights the positive contribution of indigenous peoples for sustainable development. Similarly, Article 25(1) of the American Declaration on the Rights of Indigenous Peoples (2016) upholds indigenous peoples’ responsibilities to preserve their lands for themselves and for future generations. Remarkably, recital 11 of the preamble of the main instrument on specific rights to indigenous peoples, the United Nations Declaration on the Rights of Indigenous Peoples (2007) - UNDRIP, recognizes that the respect for indigenous knowledge, cultures, and traditional practices contributes to sustainable and equitable development and proper management of the environment. Article 29 of the UNDRIP stipulates conservation and protection of the environment as a right of indigenous peoples. This provision differs from others in international human rights law because it frames nature conservation as a right of indigenous peoples - and not as duty imposed to them by international rules. In terms of legal practice, different human rights bodies have emphasized the role of indigenous peoples as guardians of nature. Inter-American organs have been remarking the positive role played by indigenous peoples with respect to nature conservation (IACHR, 1998, p. 33-34; IACtHR, 2015, p. 49). Against this background, it is important to note that international environmental law and international human rights law are bound together.

The controversial issue linked to the role of indigenous peoples as environmental stewards concerns the reification of indigenous cultures. It is obvious that many indigenous peoples have lifestyles and traditional knowledge based on historical practices of the sustainable use of lands and natural resources therein. However, this is not a rule. Similar to other groups in the society, some indigenous peoples have been incorporating new traditions and the use of modern technology to their daily life. In view of that, some states claim before courts that indigenous peoples were assimilated and hence that indigenous’ land rights have been extinguished. International judicial and quasi-judicial bodies have been engaging with such controversy. As a response to states, they have consistently decided in favor of indigenous peoples and their protection - for instance see the case Länsman et al. v. Finland (HRC, 1994, para 9.2). As the African Court stated cum grano salis (2017, p. 56): “In this vein, the Court stresses that stagnation or the existence of a static way of life is not a defining element of culture or cultural distinctiveness. It is natural that some aspects of indigenous populations’ culture such as a certain way of dressing or group symbols could change over time. Yet, the values, mostly, the invisible traditional values embedded in their self-identification and shared mentality often remain unchanged.”

To sum up, in light of the above analysis, it is compelling to conclude that the role of indigenous peoples as environmental stewards may be, in some cases, a fact. History and social anthropology corroborate such statement. Yet, the conceptualization of indigenous peoples as environmental stewards is most certainly a legal fiction well established in international environmental law and human rights law.

• AfCtHR. African Commission on Human and Peoples’ Rights v. Republic of Kenya. Application No. 006/2012. Judgment of 26 May 2017.
• HRC. Ilmari Länsman et al. v. Finland. Communication No. 511/1992. CCPR/C/52/D/511/1992. 8 November 1994.
• IACHR. Demanda de la Comisión Interamericana de Derechos Humanos presentada ante la Corte Interamericana de Derechos Humanos en el caso de la Comunidad Indígena Mayagna (Sumo) de Awas Tingni contra la República de Nicaragua. 1998. 
• _____. Interim Measures. MC 382/10 - Comunidades Indígenas da Bacia do Rio Xingu, Pará, Brasil. Available at: https://www.cidh.oas.org/medidas/2011.port.htm. Last access: 08/01/2019.
• IACtHR. Case of the Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and their members v. Panama. Preliminary Objections, Merits, Reparations and Costs. Judgment of October 14, 2014. Series C No. 284.
• ______. Case of the Kaliña and Lokono Peoples v. Suriname. Merits, Reparations and Costs. Judgment of November 25, 2015. Series C No. 309.

References

Henry Minde (1996) The making of an international movement of indigenous peoples, Scandinavian Journal of History, 21:3, 221-246, DOI: 10.1080/03468759608579326.