Indigenous peoples are often considered as the guardians of the planet’s biological resources. Their lifestyles and beliefs are considered to contribute to the protection of the environment and the natural resources on which they depend. In addition, according to the report Indigenous and Traditional Peoples of the World and Ecoregion Conservation: An Integrated Approach to Conserving the World’s Biological and Cultural Diversity, 95% of the world’s ecoregions where the biodiversity is the highest and most threatened are located in indigenous territories. Therefore, the issue of whether the full recognition of the rights of indigenous peoples could be beneficial for biodiversity protection deserves further consideration.
In this regard, it is interesting to examine the recent decision of the Supreme Court of Canada in the case Tsilhqot'in Nation v British Columbia (2014, SCC 44). In June 2014, the Court awarded new rights to indigenous peoples following a historic decision that has major implications on the extractive industries across the country: the Court recognized for the first time the existence of a property title for indigenous populations on a specific site, covering a vast area of the interior of British Columbia. This title grants them control over their ancestral lands and the right to exploit them for economic purposes, while preserving the land for future generations.
Indigenous rights and environmental protection
This decision should have rather beneficial implications for the environment, especially when we consider that pipelines are due to be built from the Alberta tar sands to the British Columbia coast, through the Great Bear rainforest. These pipelines could have devastating long-term environmental impacts on the “First Nations” ancestral territories that they are due to cross. Consequently, many aboriginal people in British Columbia were opposed to the project. The decision of the Supreme Court has finally determined that Canada’s indigenous peoples own their ancestral lands, so long as they have not given up their property rights in government treaties.
However, caution is necessary because this example does not indicate that the recognition of the rights of indigenous peoples necessarily guarantees a better management of natural resources. For example, indigenous people may decide to sell their rights or to exploit their resources unsustainably. Therefore, the responsibility for protecting biodiversity as well as the rights of all citizens, including those of indigenous peoples, should first and foremost lie with national governments and their legislation. Nevertheless, it remains important to also promote international cooperation and the participation of indigenous peoples within sustainable development conventions such as the UN Convention on Biological Diversity (CDB).
Indigenous peoples have suffered a long history of injustice, domination, inequality, discrimination, marginalization, invasions, colonization, exploitation and poverty. The aim of human rights instruments is to ensure that this history is not repeated. According to the UN report State of the World’s Indigenous Peoples (2010), there are 370 million indigenous people (about 5% of the world population) in over 90 countries (occupying approximately 20% of the Earth’s surface), representing approximately 5,000 languages and cultures.
Despite this significant contribution to the cultural diversity of humanity and to sustainable development, many remain socially marginalized. Thus indigenous peoples account for 15% of the world’s poor and about one third of the 900 million extremely poor rural people.
Given their great diversity, there is no official definition of “indigenous peoples” at the level of the UN, which has however defined some common criteria, such as their historical continuity with pre-colonial societies; strong links to territories and surrounding natural resources; distinct social, economic or political systems; distinct language, culture and beliefs; the fact that they form non-dominant groups in society and they maintain and reproduce their ancestral environments.
In a historical decision, the CBD recognizes the distinct identity of indigenous peoples
At the 12th Conference of the Parties (COP12) to the CBD, held in Pyeongchang in South Korea from 6 to 14 October 2014, the adoption of the term “indigenous peoples and local communities” – instead of “indigenous and local communities” – is an important step towards the full participation of indigenous peoples in the UN system. This decision was based on the appeal in 2011 of the United Nations Permanent Forum on Indigenous Issues to adopt the term “indigenous peoples and local communities” as an “accurate reflection of the distinct identities developed by those entities since the adoption of the CBD.”
While the possible responses to this demand were a source of disagreement during the COP11 negotiations in Hyderabad, state parties managed to overcome these divisions by deciding to use in future the terminology “indigenous peoples and local communities” in decisions and secondary documents under the Convention. But they also agreed on the fact that the use of this terminology should not in any way affect the legal significance of Article 8(j) of the Convention on the protection of traditional knowledge. The COP12 decision also states that the use of the term “indigenous peoples and local communities” cannot be interpreted by parties as implying a change of their rights or obligations under the CBD.
Taken together, the provisions of this decision constitute an important symbolic recognition of the distinct identity of indigenous peoples. But the new terminology does not automatically apply to decisions and secondary documents under the CBD protocols. So while the terminology “indigenous peoples” can be used, mutatis mutandis, in these instruments, it will be down to the parties of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization and of the Cartagena Protocol on Biosafety to rule expressly on the issue at their next conferences.
It should also be recalled that the responsibility for protecting biodiversity –in the same way as for aboriginal rights– rests with national governments and is subject to legislation in each country, consistent with applicable international standards. The adoption of the new term does not imply legal changes in the CBD, which respects and protects the sovereignty of states as decision-making authorities. This is why the implementation of the convention on the national scale, along with good governance are, and will continue to be, two key factors to enable the better consideration of the environment when making trade-offs between different development trajectories.
However, this decision is important because the representatives of indigenous peoples (and the overwhelming majority of governments) believe that this is a minimal statement of recognition and respect for their identity and dignity.
Implementation of existing instruments and new options for action
A priori, we can consider that a governance system that respects the rights of all –including those of indigenous peoples– and takes fully into account all externalities, positive and negative (and costs suffered by the people directly concerned) will be more likely to result in decisions and policies that promote respect for biodiversity than would a governance system that is corrupt or not respectful of fundamental rights.
Another key point in terms of biodiversity conservation efforts by indigenous peoples and local communities is the role of investment, especially in the industrialization process in developing countries, which are experiencing a level of activity on an unprecedented scale within protected areas.
One must also consider the impact of transnational criminal activities, such as poaching. More generally, the security issues in fragile states have a very negative impact on the community processes of biodiversity conservation.
Therefore, the strengthening of governance and the rule of law are increasingly important, from the perspective of environmental protection and human rights. This calls for the urgent implementation of the rights of indigenous peoples, that are already inscribed in a number of agreements and international instruments, such as: the UN Declaration on the Rights of Indigenous Peoples (2007), the Indigenous and Tribal Peoples Convention of the International Labour Organization (ILO-convention 169, 1989), the final document of the World Conference on Indigenous Peoples (2014), the Durban Action Plan, Revised Version, March 2004, from the 5th International Union for Conservation of Nature (IUCN) World Parks Congress, and the application of social and environmental safeguards for biodiversity in activities for the reduction of emissions from deforestation and forest degradation in developing countries (REDD+). As we can see, there are already numerous instruments to protect both biodiversity and the bio-cultural diversity of indigenous peoples. But we must ensure that they are applied.
In addition, new courses of action have been proposed, such as, at the European level, the establishment of a harmonized legal framework to regulate the extractive industries, imposing sanctions in cases of the violation of indigenous peoples’ human rights, even if committed outside of Europe. In the international negotiations conducted by the European Commission, it will also be essential to systematically incorporate a preliminary evaluation of the real effects on human rights of any trade and investment agreement, with the objective of meeting all the commitments of the European Union and its member states regarding indigenous peoples.