University of Minnesota




Authorities and Precedents in International and Domestic Law for the Proposed American Declaration on the Rights of Indigenous Peoples, Inter-Am. OEA/Ser.L/V/II.110, Doc. 22 (2001).


 

Article XIII. Right to environmental protection

1. Indigenous peoples have the right to a safe and healthy environment, which is an essential condition for the enjoyment of the right to life and collective well-being.

2. Indigenous peoples have the right to be informed of measures which will affect their environment, including information that ensures their effective participation in actions and policies that might affect it.

3. Indigenous peoples shall have the right to conserve, restore and protect their environment, and the productive capacity of their lands, territories and resources.

4. Indigenous peoples have the right to participate fully in formulating, planning, managing and applying governmental programmes of conservation of their lands, territories and resources.

5. Indigenous peoples have the right to assistance from their states for purposes of environmental protection, and may receive assistance from international organizations.

6. The states shall prohibit and punish, and shall impede jointly with the indigenous peoples, the introduction, abandonment, or deposit of radioactive materials or residues, toxic substances and garbage in contravention of legal provisions; as well as the production, introduction, transportation, possession or use of chemical, biological and nuclear weapons in indigenous areas.

7. When a State declares an indigenous territory as protected area, any lands, territories and resources under potential or actual claim by indigenous peoples, conservation areas shall not be subject to any natural resource development without the informed consent and participation of the peoples concerned.

I. INTERNATIONAL AUTHORITIES AND PRECEDENTS

1. Draft United Nations Declaration on the Rights of Indigenous Peoples (UN 1994)

Article 26: "Indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions, and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation of or encroachment upon these rights."

Article 30: "Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including the right to require that States obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. Pursuant to agreement with the indigenous peoples concerned, just and fair compensation shall be provided for any such activities and measures taken to mitigate adverse environmental, economic, social, cultural or spiritual impact."

2. C 169, Convention on Indigenous and Tribal People (ILO Convention 1989)

Article 6

1. "In applying the provisions of this Convention, governments shall:

(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions whenever consideration is being given to legislative or administrative measures ^ which may affect them directly;

(b) establish means by which these peoples can freely participate to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programs which concern them;

(c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.

2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.

3. Governments shall ensure that, whenever appropriate, studies are carried out, in co-operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities."

Article 7(4): "Governments shall take measures, in co-operation with the peoples concerned, to protect and ^ preserve the environment of the territories they inhabit."

3. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social And Cultural Rights (OAS 1988)

Article 11: "Right to a Healthy Environment

1. Everyone shall have the right to live in a healthy environment and to have access to basic public services.

2. The States Parties shall promote the protection, preservation, and improvement of the environment."

4. Carta Internacional Americana de Garantías Sociales (1948)

Articulo 39. "El Estado ejercerá su tutela para preservar, mantener y desarrollar el patrimonio de los indios o de sus tribus, y promeverá la explotación de las riquezas naturales, industriales, extractivas o cualesquiera otras fuentes de rendimiento, procedentes de dicho patrimonio o relacionadas con éste, en el sentido de asegura, cuando sea oportuna, la emancipación económica de las agrupaciones autóctonas”.

5. International Covenant on Civil and Political Rights (UN 1966)

Article 1(2): “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.”

6. International Covenant on Economic, Social and Cultural Rights (un 1966)

Article 1(2): “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.”

7. Convention on Biological Diversity (UN 1992)

Article 8. “In situ Conservation

Each Contracting Party shall, as far as possible and as appropriate:

(b) Develop, where necessary, guidelines for the selection, establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity.

(j) Subject to its national legislation, respect, preserve and maintain knowledge, invocations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.

(m) Cooperate in providing financial and other support for in-situ conservation.”

Article 10: "Sustainable Use of Components of Biological Diversity

Each Contracting Party shall, as far as possible and as appropriate: ...

(c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.”

(d) Support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced; and

(e) Encourage cooperation between its governmental authorities and its private sector in developing methods for sustainable use of biological resources”"

8. Universal Declaration of Human Rights (UN 1948)

Article 17(1): “Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property.”

9. Committee on the Elimination of Racial Discrimination, General Recommendation XXIII (51) Concerning Indigenous Peoples (August 1997)

Para. 4: "The Committee calls in particular upon States parties to:

d. ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent."

10. Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (UN doc. 1992)

Para. 5 (a): "National forest policies should recognize and duly support the identity, culture and the rights of indigenous people, their communities and other communities and forest dwellers. Appropriate conditions should be promoted for these groups to enable them to have an economic stake in forest use, perform economic activities and achieve and maintain cultural identity and social organization, as well as adequate levels of livelihood and well being, through, inter alia, those land tenure arrangements which serve as incentives for the sustainable management of forests."

-Para. 12(d): "Appropriate indigenous capacity and local knowledge regarding the conservation and sustainable development of forests should, through institutional and financial support and in collaboration with the people in the local communities concerned, be recognized, respected, recorded, developed and, as appropriate, introduced in the implementation of programmes. Benefits arising form the utilization of indigenous knowledge should therefore be equitably shared with such people."

11. African Charter on Human and Peoples’ Rights (Banjul Charter 1981)

Article 9(1): “Every individual shall have the right to receive information.”

Article 24: “All peoples shall have the right to a general satisfactory environment favorable to their development.”

12. Copenhagen Declaration on Social Development and Programme of Action of the World summit for Social Development (Copenhagen, Denmark, March 6-12, 1995)

Annex II: Programme of Action of the World Summit for Social Development Content.

Chapter II. Eradication of Poverty.

-Para. B(32): "Rural poverty should be addressed by: (f) Protecting, within the national context, the traditional rights to land and other resources of pastoralists, fishery workers and nomadic and indigenous people, and strengthening land management in the areas of pastoral or nomadic activity, building on traditional communal practices, controlling encroachment by others. (g) Promoting education, research and development on farming systems and smallholder cultivation and animal husbandry techniques, particularly in environmentally fragile areas, building on local and traditional practices of sustainable agriculture. (h) Strengthening agricultural training and extension services to promote a more effective use of existing technologies and indigenous knowledge systems."

13. World Bank

- Operational Directive 4.20 (OD 4.20) (September 1991)

“8. The Bank’s policy is that the strategy for addressing the issues pertaining to indigenous peoples must be based on the informed participation of the indigenous people themselves. Thus identifying local preference through direct consultation, incorporation of indigenous knowledge into project approaches, and appropriate early use of experienced specialists are core activities for any project that affects indigenous peoples and their rights to natural and economic resources.”

15(a)(ii): “Particular attention should be given to the rights of indigenous peoples to use and develop the lands that they occupy, to be protected against illegal intruders, and to have access to natural resources (such as forests, wildlife, and water) vital to their subsistence and reproduction.”

Article15(c): “When local legislation needs strengthening, the Bank should offer to advise and assist the borrower in establishing legal recognition of the customary or traditional land tenure systems of indigenous peoples. Where the traditional lands of indigenous peoples have been brought by law into the domain of the state and where it is inappropriate to convert traditional rights into those of legal ownership, alternative arrangements should be implemented to grant long-term renewable rights of custodianship and use to indigenous peoples.”

Article 15(d): “Mechanisms should be devised and maintained for participation by the indigenous people in decision making through project planning, implementation, and evaluation.”

Article 15(e): “Plans that draw upon indigenous knowledge are often more successful than those introducing entirely new principles and institutions.”

- Operational Manual, "Description and Sample Outline of an Environmental Action Plan, Operational Directive 4.02 , (July 1992)

Para. 4: "A Comprehensive EAP [Environmental Assessment Plan] normally covers a broad range of topics similar to those listed below. The weight accorded to each item covered depends on local circumstnaces.

(b) An analysis of major cross-sectoral issues (e.g., demography, public health and safety, cultural and natural heritage) and socioeconomic factors important to the environment and resource use. Basic information required for the cross sectoral analysis includes the following:

(iv) Socioeconomic factors: The location and occupation of indigenous peoples; identification of high risk groups, key groups of resource users, and patterns of social organization at the grass roots; resettlement; land tenure systems; traditional farming and grazing practices."

14. Rio Declaration on Environment and Development (June 13, 1992)

Principle 22: "Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development."

15. Agenda 21: Programme of Action for Sustainable Development, Rio Declaration on Environment and Development. Statement of ^ Principles. Final Text of Agreements Negotiated by Governments at UNCED Conference, June 1992, Rio de Janeiro, Brasil

23(2): " ...in the more specific context of environment and development, the need for new forms of participation has emerged. This includes the need of individuals, groups and organizations to participate in environmental impact assessment procedures and to know about and participate in decisions... [They].. should have access to information relevant on environment and development held by national authorities, including information on products and activities that have or are likely to have a significant impact on the environment, and information on environmental protection measures."

26.1 “Indigenous peoples and their communities have an historical relationship with their lands... They have developed over many generations a holistic traditional scientific knowledge of their lands, natural resources and environment.... In view of the interrelationship between the natural environment and its sustainable development and the cultural, social economic and physical well being of indigenous people, national and international efforts to implement environmentally sound and sustainable development should recognize, accommodate, promote and strengthen the role of indigenous peoples and their communities."

"...Objectives

26.3 In full partnership with indigenous people and their communities, Governments and, where appropriate, intergovernmental organizations should aim at fulfilling the following objectives: ...

(ii) Recognition that the lands of indigenous people and their communities should be protected from activities that are environmentally unsound or that the indigenous people concerned consider to be socially and culturally inappropriate: ...

(iii) Recognition of their values, traditional knowledge and resource management practices with a view to promoting environmentally sound and sustainable development.

(iv) Recognition that traditional and direct dependence on renewable resources and ecosystems, including sustainable harvesting, continues to be essential to the culture, economic and physical well being of indigenous peoples and their communities.

(vi) Support for alternative environmentally sound means of production to ensure a range of choices on how to improve their quality of life so that they can effectively participate in sustainable development.

(vii) Involvement of indigenous people and their communities at the national and local levels in resource management and conservation strategies..."

"Activities to incorporate their values, views and knowledge, including the unique contribution of indigenous women, in resource management and other policies and programs that may affect them

c) Strengthen research and education programs aimed at:

i) achieving a better understanding of indigenous peoples knowledge and management experience related to the environment, and applying this to contemporary development challenges.”

16. Stockholm Declaration, or the Declaration on the United Nations Conference on the Human Environment (1972)

Principle 1: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”

Principle 13: “In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and co-ordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve the human environment for the benefit of their population.”

Principle 14: “Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment.”

Principle 15: “Planning must be applied to human settlements and urbanization with a view to avoiding adverse effects on the environment and obtaining maximum social, economic and environmental benefits for all. In this respect projects which are designed for colonialist and racist domination must be abandoned.”

Principle 26: “Man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement, in the relevant international organs, on the elimination and complete destruction of such weapons...”

17. Declaration of Guácimo, signed by the Presidents of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama, and the Prime Minister of Belize (Guácimo, Limon, Republic of Costa Rica, August 20, 1994)

-"We view economic growth as growth with equity that does not damage our natural resource base..."

-"Central Americans are aware of the direct relationship between environmental protection and the quality of human life..."

-"We will support transparency and honesty in the management of information on public affairs."

18. Concausa Declaration, signed by the Presidents of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, Panama, the United States, and the Prime Minister of Belize (Miami, Florida, December 10, 1994)

Annex: Action Plan, I. Conservation of Biodiversity: the United States Government and Central American Governments "declare their political commitment" to "[p]romote the participation of indigenous people in decision that affect the conservation and sustainable use of the biodiversity of Central America."

19. Alliance for Sustainable Development documents signed by signed the Presidents of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama and a Representative of the Prime Minister of Belize, at the Central American Ecological Summit for Sustainable Development in Managua, Nicaragua, (October 12, 1994)

Principles of the Alliance for Sustainable Development:

"The following are the seven fundamental principles that we the citizens of Central America have adopted in our pursuit of sustainable development. They will be reflected in all the policies, programs and activities promoted by our countries, individually or collectively, and by civil society, inasmuch as they are the basis of objectives and commitments of common interest.

1. Respect for All Life Forms: Sustainable development cannot be achieved at the expense of other groups or future generations.

5. Respect for Cultural Plurality and Ethnic Diversity:

Indigenous peoples generally live in areas of great biological diversity, and their lifestyles are frequently in harmony with the natural environment. Their world view is compatible with the objective of sustainable development in that it perceives nature as inseparable from human beings.

Therefore, respect for ethnic diversity and the development of indigenous cultures, an objective in itself, is synonymous with respect for the environment. Nevertheless, if respect for the environment is to translate into an effective practice, people must have access not only to ideas, but also to possibilities for self-sustaining development."

20. Summit of the Americas Plan of Action, signed by 34 heads of state participating in the Summit of the Americas (Miami, Florida 1994)

IV. "Guaranteeing Sustainable Development and Conserving Our Natural Environment for Future Generations

22. Partnership for Biodiversity. Support democratic governmental mechanisms to engage public participation, particularly including members of indigenous communities and other affected groups, in the development of policy involving conservation and sustainable use of natural environments. The forms of this participation should be defined by each individual country."

21. Resolution (a) on the catastrophic environmental impact of large-scale deforestation in Sarawack, Malaysia, adopted in 1988 by the European Parliament

“Large scale logging in Sarawak constitutes a serious threat to the environment and to the indigenous people who live in and from the tropical rain forest. When logging concessions are granted, insufficient attention is paid to such threats and the traditional land rights of indigenous peoples are ignored.”

22. Resolution (k) on “The human and ecological disaster in the Pastaza Region in Ecuador, adopted in 1991 by European Parliament

-The Parliament expresses: “concern about the increase of oil exploitation over the last 20 years in the Ecuadorian rainforest by Conoco, Arco, Unocal, Occidental, City, Bristish Gas, Parker Construtore and Texaco. Continued exploration and extraction along existing exploitation methods by oil companies is not contributing to sustainable development and can do serious damage to the region.”

-The Resolution: “calls upon the Ecuadorian government to recognize the rights of their indigenous people”.

23. Preliminary Report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur, pursuant to Sub-Commission on the Prevention of Discrimination and Protection of Minorities resolutions 1900/7 and 1990/27 (E/CN.4/Sub.2/1991/8, 2 Aug. 1991)

Para. 27. "The prevailing development process, as is being increasingly acknowledged by Member States, is not only damaging to the environment but may also be harming the way of life of many people, and especially indigenous peoples. Indeed, it can be said that all environmental degradation has a direct impact on the human rights of the indigenous peoples dependent on that environment. For example, where there is unrestrained deforestation, forest-dwelling indigenous peoples may be forced from their traditional homelands, may thereby be denied a means of livelihood, may be driven to take refuge among strangers and, in the most extreme cases, may fall victim to diseases against which they have no immunity. Similarly desertification, a phenomenon which is as much man-made as it is an act of nature, has led many self-sufficient pastoralists to an impoverished existence in refugee camps. Even smaller scale environmental sacrifices - the inundation caused by dam-building, mining, prospecting and so on - have affected indigenous peoples all over the world, causing them to leave lands they have occupied for generations, often without their willing consent or any compensation. Indigenous peoples may, thus, be victims of inappropriate development and environmental degradation. As such their fundamental freedoms and human rights are affected."

24. Council of European Union Resolution on Tropical Forest (May 29, 1990)

"The Community and its member State recognize the necessity of a world wide co-ordinated strategy for tropical for tropical forest resources and endorse i.e. the following principles and activities;

Particular importance has to be attached to the social dimension of forestry. The traditions and experience of Indigenous forest dwellers should be respected and drawn upon while at the same time the needs and problems of new and those living on the periphery of the forest should be addressed.

Active steps should be taken to involve local populations in planning and implementation of projects."

25. Report of European Commission of October 1990 on “Environmental problems in the Amazon region”, “Measures to protect the Ecology of the Tropical Forests” and on “the Conservation of Tropical Forest”

The Commission declares:

"The need to protect Indigenous Peoples -

The life, culture and, occasionally the very existence of indigenous peoples are intimately bound up with the forest. This concern is one of the priorities which the Commission is endeavoring to advance in the context of a wide-ranging pilot program to save the Amazon forest.”

 



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