Indigenous Peoples

This report analyses developments under international law processes concerning Indigenous peoples and the environment that occurred this year. It addresses the following themes: marine biological diversity and Indigenous peoples; conservation measures and the militarization of Indigenous peoples’ territories; and green financing and the rights of Indigenous peoples.

(1) Marine Biological Diversity and Indigenous Peoples

In June, the parties to the 1982 United Nations Convention on the Law of the Sea reached the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (UN Doc. A/CONF.232/2023/4 <https://www.un.org/depts/los/bbnj.htm>; <https://www.un.org/depts/los/XXI10CTC%28EN%29.pdf>). The preamble of the agreement refers expressly to the UN Declaration on the Rights of Indigenous Peoples and affirms that nothing in this agreement shall be construed as diminishing or extinguishing the existing rights of Indigenous peoples, including as set out in the UN Declaration on the Rights of Indigenous Peoples.

The agreement includes, among its general principles and approaches, the following:

The use of relevant traditional knowledge of Indigenous Peoples and local communities, where available …. The respect, promotion and consideration of their respective obligations, as applicable, relating to the rights of Indigenous Peoples or of, as appropriate, local communities when taking action to address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. (art 7 (j) and (k))

Article 13 of the agreement regulates access to traditional knowledge of Indigenous peoples and local communities. It states that:

Parties shall take legislative, administrative or policy measures, where relevant and as appropriate, with the aim of ensuring that traditional knowledge associated with marine genetic resources in areas beyond national jurisdiction that is held by Indigenous Peoples and local communities shall only be accessed with the free, prior and informed consent or approval and involvement of these Indigenous Peoples and local communities. Access to such traditional knowledge may be facilitated by the Clearing-House Mechanism. Access to and use of such traditional knowledge shall be on mutually agreed terms. (art. 13)

Concerning the establishment of area-based management tools, including marine protected areas, the agreement provides that state parties shall consult and collaborate as appropriate with Indigenous peoples for the development of proposals (arts 19.2 and 21). It also states that proposals shall be formulated on the basis of the best available science and scientific information and, where available, relevant traditional knowledge of Indigenous peoples and local communities and shall include, among other things, human activities in the area, including uses by Indigenous peoples and local communities, and their possible impact, if any (arts 19.3 and 19.4(c)).

In addition, among other things, the agreement lays down that measures adopted on an emergency basis—that is, those applied when a natural phenomenon or human-caused disaster has caused, or is likely to cause, serious or irreversible harm to marine biological diversity of areas beyond national jurisdiction, to ensure that the serious or irreversible harm is not exacerbated—shall be based on the best available science and scientific information and, where available, relevant traditional knowledge of Indigenous peoples and local communities (art 24 (3)).

(2) Conservation Measures and the Militarization of Indigenous Peoples’ Territories

This year, the UN Expert Mechanism on the Rights of Indigenous Peoples issued a study entitled Impact of Militarization on the Rights of Indigenous Peoples: Study by the Expert Mechanism on the Rights of Indigenous Peoples (Doc. A/HRC/54/52 <https://www.ohchr.org/en/documents/studies/ahrc5452-impact-militarization-rights-indigenous-peoples-study-expert-mechanism>). Among the various types of militarization of the lands, territories, and resources of Indigenous peoples, the study addresses the militarization linked to the protection of conservation projects. The study notes that:

The Expert Mechanism has received information on the significant rise in militarized approaches to conservation with the expansion of protected areas and the increased focus on biodiversity conservation and addressing climate change. Indigenous territories may become increasingly militarized in response to the 30 by 30 target, under the Convention on Biological Diversity, to protect 30 per cent of the planet by 2030. Protected areas often feature heavy policing, with national wildlife services and local government rangers patrolling the protected areas, including those in Indigenous territories. The militarization of conservation has been documented in the Central African Republic, the Democratic Republic of the Congo, Guatemala, India and South Africa. Park guards and rangers receive a military-type training and funding has increased for arming guards. (para. 22)

It highlights the wide-ranging impact of militarization of Indigenous peoples’ human rights, including their rights to life, integrity, liberty, and security, to land, territories, and natural resources, and other economic, social, and cultural rights.

In the advice that accompanies the study, the Expert Mechanism indicates that:

States should be guided by article 30 of the United Nations Declaration on the Rights of Indigenous Peoples, which affirms that military activities shall not take place in the lands or territories of Indigenous Peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the Indigenous Peoples concerned. “Public interest” does not constitute by itself a determinative factor and must comply with the principles of suitability, necessity and proportionality as defined within an overall framework of respect for human rights. (A/HRC/54/52, Annex, para. 3)

Moreover, the Expert Mechanism states that states should undertake consultation processes with the Indigenous peoples concerned, even where sufficient public interest can be found. Furthermore, states should ensure that consultations are free from interference from government actors, companies, or the military, and facilitate Indigenous peoples’ internal consensus building and decision-making practices, respecting their time frames, customary laws, and representative structures. Free, prior, and informed consent is required in cases where military activities may have significant impacts, as required by the declaration (para. 5). It emphasizes, among other aspects, that states should ensure that Indigenous peoples’ rights are respected when expanding protected areas, mitigating climate change, and carrying out conservation projects, which often feature high levels of militarization. Indigenous peoples should be part of any decision making in such situations (para. 12).

(3) Green Financing and the Rights of Indigenous Peoples

In this year’s report to the UN Human Rights Council, the UN special rapporteur on the rights of Indigenous Peoples addresses the impact of green finance on Indigenous peoples and the social and environmental safeguards needed to protect their rights (Doc. A/HRC/54/31 <https://www.ohchr.org/en/documents/thematic-reports/ahrc5431-green-financing-just-transition-protect-rights-indigenous>).

Green financing involves loans and investments for projects, programs, and initiatives that promote environmental sustainability and climate action. The special rapporteur highlighted that the processes and associated finances to achieve the climate and biodiversity targets could have significant negative impacts on Indigenous peoples unless the protection of their internationally recognized human rights is defined as central to successfully achieving those goals (para. 6). The report also underscores that many green projects and nature-based solutions are likely to occur on Indigenous lands, whether or not the land rights of Indigenous peoples are recognized by the state, and human rights due diligence should therefore be undertaken from the outset, using a human rights-based approach that acknowledges their collective rights to land and right to self-determination (para. 7). The special rapporteur furthermore emphasizes that: ‘A just green transition will require that States and other financial actors break down the power asymmetries that continue to characterize aid and development financing and involve Indigenous Peoples, Indigenous women in particular, as equal stakeholders in the finance process and foster true cooperation and solidarity’ (para. 75).

The rapporteur recommends in particular that states should:

(c) Guarantee the right of Indigenous Peoples to provide or withhold their free, prior and informed consent regarding green finance initiatives affecting their lands, territories and resources after a meaningful and gender-inclusive consultation process. States should ensure that Indigenous Peoples have access to relevant information, can freely express their views and make decisions without coercion or manipulation. States should recognize that free, prior and informed consent is an ongoing process, requiring ongoing consultation throughout the life cycle of a project;

(d) Ensure that Indigenous Peoples directly and equitably benefit from green financing projects. Indigenous Peoples should be provided with access to employment opportunities, training, capacity-building programmes and business development initiatives associated with green projects. States should ensure that funding proposals include provisions for benefit-sharing mutually agreed upon with Indigenous Peoples;

(e) Secure the land rights of Indigenous Peoples and demarcate their ancestral lands and territories to protect them from encroachment, land-grabbing and other forms of unauthorized exploitation;

(f) Establish effective, accessible, culturally appropriate and independent mechanisms for Indigenous Peoples to seek justice and remedy in cases of human rights violations or environmental harm resulting from green financing projects;

(g) Establish monitoring and reporting mechanisms to track the impacts of green financing projects on the rights of Indigenous Peoples, including regular consultations with the Indigenous communities affected. States should also hold project proponents accountable, in compliance with human rights standards, and require them to report periodically on the human rights and environmental impacts of green initiatives;

(h) Adopt, in consultation with Indigenous Peoples, domestic frameworks regulating the green economy including requirements for REDD-plus initiatives, carbon markets and nature-based markets to clearly recognize and protect the rights to land, territories and resources of Indigenous Peoples and their right to free, prior and informed consent. (para. 77)

In addition, the report addresses a series of recommendations to donors, investors, and funders, including the recommendation to adopt explicit policies and guidelines for the rights of Indigenous peoples that are aligned with international human rights standards, and to condition funding on the adoption and application of a solid Indigenous human rights-based approach by recipient governments and/or implementing partners on the grounds (para. 78).