© 2018 by the Rights and Resources Initiative (RRI), a global coalition of 15 Partners, 7 Affiliated Networks, 14 International Fellows, and more than 150 collaborating international, regional, and community organizations dedicated to advancing the forestland and resource rights of Indigenous Peoples and local communities. The views presented on this site are not necessarily shared by the agencies that have generously supported this work, nor by all the Partners and Affiliated Networks of the Coalition. This work is licensed under a Creative Commons Attribution License CC BY 4.0.

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Introduction

In the past 18 months, 2 United Nations Special Rapporteurs have penned reports on human rights and conservation: Victoria Tauli-Corpuz, UN Special Rapporteur on the rights of Indigenous Peoples, and John Knox, UN Special Rapporteur on human rights and the environment.[1] These reports stress that human rights obligations “apply not only to measures aimed at exploitation of resources, but also to those aimed at conservation,” and duty-bearers have enhanced obligations to respect the rights of “those who have long-standing, close relationships with their ancestral territories.”[2] They also emphasize the interdependent and indivisible nature of healthy ecosystems and the enjoyment of human rights and, conversely, the essential importance of human rights guarantees for protecting ecosystems, particularly in the case of Indigenous Peoples.[3] In this regard, they highlight that respecting human rights is not only a legal obligation, “it is also often the best or only way to ensure the protection of biodiversity.”[4] Effective human rights protections for Indigenous Peoples and local communities have been “shown to result in improved protection for ecosystems and biodiversity,” whereas “trying to conserve biodiversity by excluding them from a protected area typically results in failure.”[5] In common with a growing body of research, both Rapporteurs strongly endorse securing Indigenous Peoples’ rights to their territories as an effective means of rights-compliant conservation.[6] The same is also increasingly the case under international environmental law.[7] As discussed below, these considerations are not simply policy decisions; instead, they go to the heart of assessing the permissibility and legitimacy of conservation initiatives as a matter of human rights law.

 

The Rapporteurs also observe that violations of Indigenous Peoples’ rights persist in conservation actions and that many states[8] and the conservation community, especially its largest actors, have yet to adequately comprehend and develop effective mechanisms to respect these rights.[9] Tauli-Corpuz observes that this pattern of violations is long-standing, affects rights essential to Indigenous Peoples’ survival and well-being,[10] and is particularly pronounced in countries that have not adequately recognized collective land rights and associated protections.[11] Noting that a range of conservation actors have adopted policy statements addressing Indigenous Peoples’ rights, Tauli-Corpuz observes that these “are at times elusive regarding the specific rights of Indigenous Peoples,”[12] and that “considerable implementation gaps remain and new threats to human rights-based conservation are emerging.”[13] The Rapporteurs conclude that conservationists need to intensify “efforts to fulfil their commitments to a rights-based approach to conservation,”[14] and that “States and conservation organizations need to implement measures to recognize the rights of Indigenous Peoples as a matter of priority.”[15]

The Rapporteurs also comment on international environmental law instruments, such as the Convention on Biological Diversity (“CBD”), highlighting provisions that are supportive of Indigenous Peoples’ rights as well as the significant overlap with human rights norms.[16] This includes decisions adopted by the Conference of Parties to the CBD explicitly invoking “the obligations of Parties towards indigenous and local communities” and providing that “the establishment, management and monitoring of protected areas should take place with … full respect for the rights of indigenous and local communities….”[17] Agreeing with the Inter-American Court of Human Rights (IACTHR),[18] the Rapporteurs underscore that respect for Indigenous Peoples’ rights “should be seen as complementary, rather than contradictory, to environmental protection.”[19] Tauli-Corpuz adds that an assessment of Indigenous Peoples’ rights in relation to conservation “requires consideration of the interrelatedness of the different rights, notably self-determination, cultural and property rights, and appreciation of the complementarity of international human rights law and international environment law.”[20]

 

The Rapporteurs’ reports concur with significant, recent developments in international human rights jurisprudence, which provides a set of legal norms governing public and private sector conservation. Taken together, these reports and jurisprudence renew the “challenge to conservationists”[21] made by Indigenous Peoples and others over the past decades, reinforced by concerns raised by some major donors, to move away from the mistakes of the past[22] and ensure that the rights of Indigenous Peoples and other similarly situated people or peoples are respected.[23] This prompted the creation of the Conservation Initiative on Human Rights in 2009, intended “to improve the practice of conservation by promoting the integration of human rights in conservation policy and practice.”[24] Yet, some eight years later, Tauli-Corpuz concludes that, while “a new rights-based paradigm to conservation has been advancing during the last decades, it remains in its initial stages of being applied.”[25] Moreover, advances in international jurisprudence since 2009 have clarified a number of aspects of human rights law in relation to conservation, decidedly moving these issues from the realm of policy to one of legal obligations. This jurisprudence also supports the conclusion that failure to respect Indigenous Peoples’ rights could affect the legitimacy and even continuation of a considerable number of protected areas and other non-consensual conservation interventions. 

Recent Jurisprudence

"… The Commission reiterates that environmental conservation is an important public necessity, but it cannot be pursued at the expense of the human rights of Indigenous Peoples." [26]

Between 2010 and 2017, international judicial or quasi-judicial human rights bodies have adopted four significant decisions related to conservation, addressing protected area establishment and management and the restitution of lands incorporated into protected areas: Xákmok Kásek v. Paraguay (2010), Endorois Welfare Council (2010), Kaliña and Lokono Peoples v. Suriname (2015), and African Commission on Human and Peoples’ Rights v. Kenya (2017). The remainder of this short note summarizes some of the key normative developments in or common to these decisions. It does not address indigenous land rights per se as this is articulated elsewhere.[27] For present purposes, it will suffice to recall that indigenous property rights derive from their customary tenure systems,[28] within which lands must be demarcated and titled, and where any proposed or actual encroachment on these lands, irrespective of legal status in domestic law, triggers a series of obligations incumbent on both public and private sector actors.[29] Additionally, global and regional jurisprudence essentially tracks the norms set out in Articles 25-32 of the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP),[30] including as read together with, inter alia, the territorial, cultural and self-government aspects of the right to self-determination.[31] The Declaration, therefore, provides an indispensable reference point, both in terms of guarantees for indigenous territories and Indigenous Peoples’ rights more generally.    

Protected Area Establishment: Public Interest, Necessity and Proportionality

All four of the above-listed decisions specify obligations pertaining to protected area establishment as it may affect an indigenous territory. The public interest doctrine is especially highlighted because it is often understood by states and others to provide an overriding justification that permits coercive conservation measures, trumping rights in the process. However, human rights bodies have long made clear that a valid public interest declaration is only the first step and that any activity that may lawfully affect certain human rights also must comply with necessity, proportionality, non-discrimination,[32] and other tests.[33] States must demonstrate that coercive conservation is “strictly necessary” and that they have chosen the least restrictive option from a human rights perspective[34] to satisfy the stated public interest.[35] Any restrictions must also be proportionate and closely tailored to the asserted public interest.[36] Moreover, authorizations that restrict property rights “must not be issued if the public purpose in question can be achieved in a different way….”[37] These considerations are questions of fact, and constrained by facts, rather than political discretion.[38] Therefore, evidence of the efficacy of indigenous territorial conservation is central to assessing necessity and proportionality as well as germane to whether coercive conservation measures are permissible and, if so, to what extent.  

As a general principle, it is highly relevant that indigenous territories “coincide with areas that hold 80 percent of the planet’s biodiversity”[39] and that research consistently “reveals a strong correlation between indigenous presence and the protection of natural ecosystems.”[40] Various sources also confirm that Indigenous Peoples are at least as good, if not better, at conservation than states and others.[41] The World Bank’s Independent Evaluation Group, for example, concludes that community-managed forests are much more effective in reducing deforestation than strict protected areas,[42] and, “[i]n Latin America, indigenous areas are almost twice as effective as any other form of protection.”[43] Similar findings have been recorded in other regions of the world.[44] Another World Bank-commissioned study concludes that recognition of indigenous land rights is strongly related to successful conservation outcomes,[45] and “empowering Indigenous Peoples to manage biodiversity in their own territories has resulted in a more sustained and cost effective way to protect biodiversity.”[46] Tauli-Corpuz explains that this body of research, at a minimum, “puts the onus on states to justify why non-consensual protected areas may be strictly necessary within indigenous territories” and to “substantiate that they have rigorously applied the criteria that would allow them to intervene in indigenous territories, including through undertaking participatory assessments of alternatives.”[47] It also strongly supports the view that respect for Indigenous Peoples’ rights is “often the best or only way to ensure the protection of biodiversity” and successful conservation.[48]

 

The Inter-American Commission on Human Rights (IACHR) observes that there must be a “rational connection” between protection of the environment and restrictions on the ownership, use and enjoyment of Indigenous Peoples’ territories.[49] Where it can be shown that indigenous management and conservation is effective, there would be no factual basis for, and hence no need to resort to, coercive measures. Doing so would be unnecessary and disproportionate to the asserted public interest, which could be achieved through alternative, less onerous means, such as negotiated agreements on specific ecosystem or species conservation measures.[50] In this scenario, the public interest of nature conservation can be achieved while also respecting indigenous territorial rights and their governance, management, cultural, and other systems that sustain effective conservation outcomes, including, where necessary, via legal and other agreements with state agencies and others.

 

The above requirements are contextualized and elaborated on in the recent jurisprudence. In Endorois, for instance, the African Commission on Human and Peoples’ Rights (AfCom) observed that the “’public interest’ test is met with a much higher threshold in the case of encroachment of indigenous land rather than individual private property.”[51] It then held that denial of the Endorois’ “property rights over their ancestral land is disproportionate to any public need served by the Game Reserve.”[52] Similarly, in May 2017, the African Court of Human and Peoples’ Rights (ACTHPR) ruled that Kenya had “not provided any evidence” to support its claim that occupation by the Ogiek was detrimental to the environment, and, therefore, “the continued denial of access to and eviction from the Mau Forest … cannot be necessary or proportionate to achieve the purported justification of preserving the natural ecosystem….”[53] Referring again to Kenya’s claim, the ACTHPR ruled that “this cannot, by any standard, serve as a reasonable and objective justification for the lack of recognition of the Ogieks’ indigenous or tribal status and denying them the associated rights derived from such status.”[54] It ruled in the same way with respect to violations of cultural rights.[55] This is consistent with the IACHR and IACTHR’s jurisprudence, including in relation to conservation,[56] which affirms that indigenous lands are fundamental to Indigenous Peoples’ cultural integrity and survival.[57] This jurisprudence additionally holds that certain restrictions may be either “impermissible”[58] or subject to Indigenous Peoples’ free, prior and informed consent, irrespective of the asserted public interest.[59] The same is also the case in the jurisprudence of the Human Rights Committee.[60]

 

The IACTHR has taken the preceding principles a step further. Building on its prior ruling that respect for Indigenous Peoples’ rights is a vitally important public interest consideration in its own right,[61] it ruled that effective participation by Indigenous Peoples in decision-making is itself integral to establishing the public interest justification for conservation in addition to being a right that must be respected in general.[62] Therefore, states must ensure indigenous participation and fully account for the separate, countervailing public interest of respecting Indigenous Peoples’ rights at the outset and throughout the process. Where they do not, it will be very difficult for states to sustain that bare conservation objectives are in the public interest. This line of analysis is also not confined to international human rights bodies. For example, in a July 2017 judgment, albeit concerning oil and gas permits, the Canadian Supreme Court observed that a “project authorization that breaches the constitutionally protected rights of Indigenous Peoples cannot serve the public interest.”[63]

 

In sum, international human rights bodies have ruled that protected areas are subject to the same human rights norms, rules, and treatment as any other intervention in indigenous territories by states and those authorized by them, and that the preceding rules are only one part of the required analysis and applicable obligations.[64] Indigenous Peoples additionally have the right to effective participation in all decision-making around the establishment and management of protected areas, including giving or withholding consent; prior and participatory social and human rights impact assessments; and reasonable benefit sharing.[65] Additionally, coercive measures may be impermissible to the extent that they are unnecessary, disproportionate or incompatible, separately or cumulatively, with the exercise of certain rights. These principles, together with the importance of recognizing and respecting Indigenous Peoples’ territorial rights and the effectiveness of their conservation practices, areas, and initiatives, are also increasingly acknowledged and prioritized in international environmental law, especially pursuant to the CBD.[66]

Management

 

Kaliña and Lokono contains the most detailed jurisprudence relating to the management of protected areas. As a general principle, the IACTHR explains that, from the date the state accepted its international commitments “it should have endeavored to ensure compatibility between the protection of the environment and the collective rights of the Indigenous Peoples, in order to: (a) ensure access to and use of their ancestral territories for their traditional ways of life in the nature reserves, and (b) provide the means for them to participate effectively in the objectives of the reserves; … and (c) to participate in the benefits derived from conservation.”[67] It held that a lack of explicit mechanisms to guarantee access, use and effective participation in the conservation of nature reserves constitutes a violation of the obligation to adopt effective measures “to ensure the rights to collective property, to cultural identity, and to political rights….”[68] The associated order acknowledges that while some restrictions may be possible, they cannot represent “an excessive obstacle to their rights.”[69] “Excessive” relates, in part, to the requirement that “any restriction of their rights must comply with the requirements of legality, necessity and proportionality, and the achievement of a legitimate purpose.”[70] As discussed below, the IACTHR’s ruling in this case would very likely have been quite different if the reserves had been established after, rather than prior to, the state’s acceptance of its jurisdiction.

 

With regard to “effective participation,” the IACTHR observed that “it is necessary to: (i) recognize the right of the Indigenous Peoples to use their own institutions and representatives to manage, administer and protect their traditional territories; (ii) ensure a decision-making system in which the Indigenous Peoples participate fully and effectively; (iii) seek agreements between the respective communities and the conservation agencies that establish the management, the commitments, the responsibilities, and the purposes of the area, and (iv) guarantee access to information regarding any measures taken in relation to these areas.”[71] In relation to “access and use,” the IACTHR provides examples, declaring that states should “accede to their traditional health system and other socio-cultural functions, and preserve their way of life, customs and language, as well as to accede to, maintain and protect their religious and cultural sites.”[72] Additionally, indigenous peoples’ traditional practices that “contribute to the sustainable care and protection of the environment should be maintained, protected and promoted. Thus, it is pertinent to support the Indigenous Peoples’ knowledge, institutions, practices, strategies and management plans related to conservation.”[73] These last elements are consistent with Article 29(1) of the UN Declaration, which provides, in part, that Indigenous Peoples have a right to conservation and protection of the environment and the productive capacity of their territories, and states “shall establish and implement assistance programmes for Indigenous Peoples” to support the same.

 

While more limited in its scope and analysis than Kaliña and Lokono, the IACTHR’s judgment in Garífuna Community of Punta Piedra v. Honduras also deserves mention. In this case, the IACTHR found violations of property and participation rights in connection with the state’s failure to consult about the establishment of a protected area overlapping part of the community’s traditional lands and, later, about the terms of its management plan.[74] It ordered, inter alia, that the state adopts effective measures to guarantee the community free access, use and enjoyment of its collective property in that part of its territory within the National Park,[75] and awarded monetary damages for the violations incurred.[76]

Restitution

"Indigenous Peoples have the right to redress, by means that can include restitution … for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent." [77]

As noted above, failure to respect Indigenous Peoples’ rights may result in challenges to the legitimacy and even continuation of protected areas and other conservation initiatives, among other things, through restitution of all or parts of the lands included therein. While much could be, and has been, said on this issue, this note only addresses restitution as ordered in the above-listed cases.[78] While Xákmok Kásek and Kaliña and Lokono Peoples are most relevant, note that the AfCom also recommended restitution in Endorois[79] and the ACTHPR is expected to address, and possibly order, restitution in a forthcoming reparations judgment in the Ogiek case.[80] As above, the recent jurisprudence builds on existing rules and norms and clarifies their application in the conservation context.[81] These same principles are also reflected in international policies on protected areas, for example, in the 2003 and 2014 decisions of the World Parks Congress.[82] Note also that all but one of the protected areas at issue in these cases was created prior to the respondent state’s ratification of the relevant treaties; thus, all protected areas are potentially subject to restitution, irrespective of when they were first established and to the extent that ongoing and continuous violations may be verified.

 

In Xákmok Kásek, the IACTHR explained that “it has been proved that the declaration of a private nature reserve on part of the land reclaimed by the Community did not take into account its territorial claim and it was not consulted about this declaration…. In addition, it is evident that the state has not taken the necessary positive measures to reverse that exclusion.”[83] The IACTHR further found that the nature reserve imposed “restrictions to use and ownership, including the prohibition to occupy the land, as well as the traditional activities of the members of the Community such as hunting, fishing and gathering.”[84] Because of the ongoing relationships between the community and the lands in the reserve, the Court ruled that the affected people’s right “to recover their lost lands remains in effect” and it ordered restitution of the same.[85]

 

Likewise, in Kaliña and Lokono, the IACTHR verified “a continuous relationship between the Kaliña and Lokono and certain areas [of nature reserves] that they use for their way of life,” and, therefore, ruled that they have the right to “the possible restitution of the parts of their traditional territory within the nature reserves….”[86] The term ‘possible’ should be understood in light of the Court finding that it lacked sufficient information about “the precise dimension of their traditional territory that is within these reserves.”[87] Nonetheless, it required and ordered[88] that the state, as part of the process of titling the traditional territory, “must weigh the collective rights of the Kaliña and Lokono peoples against the protection of the environment as part of the public interest” to determine whether restitution should also take place.[89] The IACTHR explained that this ‘weighing’ must assess the necessity and proportionality of any restrictions to the Kaliña and Lokono’s rights in the reserves, including whether continued denial of their ownership rights to all or parts of the reserves is defensible to achieve nature conservation objectives.[90] Moreover, this should be read in conjunction with the IACTHR’s conclusion that Indigenous Peoples play “an important role in nature conservation, since certain traditional uses entail sustainable practices and are considered essential for the effectiveness of conservation strategies. Consequently, respect for the rights of the Indigenous Peoples may have a positive impact on environmental conservation.”[91]

 

Finally, the IACTHR ordered restitution in Kaliña and Lokono despite finding that, because the reserves were created prior to the entry into force of the relevant treaty, it lacked jurisdiction to examine their creation and was “prevented from examining aspects related to the process that led to the technical determination of the dimensions, limits, and areas established as nature reserves.”[92] This meant that the Court was able to address ongoing or new issues related to the reserves, but not their establishment, leaving a number of issues unaddressed, procedural ones especially. It indicated, however, that its ruling would have been different, and along the unequivocal lines of Xákmok Kásek, if it had had jurisdiction over “the creation and persistence of the nature reserves” rather than solely their “existence” and ongoing effects.[93] Either way, should it be determined that it is unnecessary or disproportionate to deny or restrict the ownership and/or other rights of the Kaliña and Lokono, the lands within the reserves must be returned to them as part of the titling process and conservation objectives must be addressed in other ways and within the context of full respect for their territorial and other rights.

[1] Report of the Special Rapporteur of the Human Rights Council on the rights of indigenous peoples, A/71/229, 29 July 2016 (hereinafter “VTC 2016”); and Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, A/HRC/34/49, 19 January 2017 (hereinafter “JK 2017”).

[2] JK 2017, para. 58 (citing African Commission on Human and Peoples’ Rights, Endorois Welfare Council v. Kenya, No. 276/2003 (2010) (hereinafter “Endorois”); and Kaliña and Lokono Peoples v. Suriname, IACTHR, Ser. C No. 309, 25 November 2015 (hereinafter “Kaliña and Lokono Peoples”).

[3] JK 2017, para. 5 (“The full enjoyment of human rights thus depends on biodiversity, and the degradation and loss of biodiversity undermine the ability of human beings to enjoy their human rights”).

[4] Id. at para. 59.

[5] Id.; and VTC 2016 para. 15-7. See also S. Stevens, Indigenous Peoples, National Parks, and Protected Areas: A New Paradigm, at p. 4 (explaining that consistent findings have shown denial of rights in protected areas has had “three adverse consequences from a conservation perspective: … 1) the loss of indigenous peoples’ custodianship and care of what have long been cultural landscapes and culturally shaped ecosystems rather than uninhabited wilderness; 2) loss of their guardianship and defense of ecosystems against environmentally destructive settlement [and] extractive industries … and; 3) reliance for the protection, maintenance and restoration of protected area ecosystems and biodiversity on state authorities who often have lacked the necessary capacity, resources or political will to achieve these outcomes”).

[6] VTC 2016, para. 65-7.

[7] JK 2017, para. 61; and id. para. 31 (citing UNEP/CBD/COP/DEC/XII/12 and stating that “In 2014, the Conference of the Parties adopted a decision which highlighted the requirement that protected areas and management regimes must be consensual and participatory if indigenous peoples’ rights are to be respected. It also recognized the contribution of indigenous peoples’ own conservation initiatives within their territories to the effective conservation of important biodiversity sites”). See also UNEP/CBD/COP/DEC/XI/24, 5 December 2012, para. 1(e).

[8] VTC 2016, para. 19 (further observing that “among the principal challenges that indigenous peoples continue to face globally are difficulties in gaining legal recognition of collective ownership over their ancestral lands, especially when these have already been declared protected territories. National legislation is often contradictory. Laws pertaining to conservation and forestry are commonly not harmonized with subsequent national legislation and international law asserting the rights of indigenous peoples and the authorities responsible for enforcement of the different laws frequently fail to coordinate”).

[9] JK 2017, para. 63 and 73; and id., inter alia, paras. 11 and 49.

[10] VTC 2016, para. 9 (stating that “The three Special Rapporteurs on the rights of indigenous peoples have, since the creation of the mandate, paid particular attention to the human rights violations that conservation measures have caused indigenous peoples worldwide, notably by the expropriation of land, forced displacement, denial of self-governance, lack of access to livelihoods and loss of culture and spiritual sites, non-recognition of their own authorities and denial of access to justice and reparation, including restitution and compensation”); and para. 51 (stating that “The respective Special Rapporteurs on the rights of indigenous peoples have, since the establishment of the mandate in 2001, received numerous allegations of large-scale violations of the rights of indigenous peoples in the context of conservation measures”).

[11] Id. para. 38 (further explaining that “conservation efforts in countries where indigenous peoples remain marginalized have had the least sustainable and successful outcomes, which has prompted scrutiny of international conservation policies”); and 52.

[12] Id. at para. 21.

[13] Id. at para. 11.

[14] JK 2017, para. 73.

[15] VTC 2016, at para. 32.

[16] JK 2017 para. 60-1; and id. para. 30-2.

[17] See Decisions of the Conference of Parties, COP VII, Decision VII/28, Protected Areas (article 8a-e), at para. 22. See also e.g., Decisions of the Conference of Parties, COP X, Decision X/31, Protected Areas, para. 32(c) (“Recalling paragraph 6 of decision IX/18 A, further invites Parties to Establish effective processes for the full and effective participation of indigenous and local communities, in full respect of their rights and recognition of their responsibilities, in the governance of protected areas, consistent with national law and applicable international obligations”).

[18] Kaliña and Lokono Peoples, at para. 173 (finding also that “a protected area consists not only of its biological dimension, but also of its socio-cultural dimension and that, therefore, it requires an interdisciplinary, participatory approach. Thus, in general, the indigenous peoples may play an important role in nature conservation, since certain traditional uses entail sustainable practices and are considered essential for the effectiveness of conservation strategies. … Hence, the rights of the indigenous peoples and international environmental laws should be understood as complementary, rather than exclusionary, rights”).

[19] JK 2017, at para. 59; VTC 2016, para. 28.

[20] VTC 2016, at para. 20.

[21] M. Chapin, ‘A Challenge to Conservationists’, World Watch November/December 2004, http://www.worldwatch.org/system/files/EP176A.pdf.

[22] See e.g., VTC 2016, para. 39 (explaining that, in 2003, the world’s leading conservationists announced a ‘new paradigm’ for protected areas which would respect the rights of indigenous peoples and local communities. This important shift in the approach to conservation was adopted in response to growing public opinion that conventional protected area models wrongly excluded or marginalized indigenous peoples and local communities from their governance and management”).

[23] JK 2017 para. 51-2 and 71 (recommending that “… States should recognize that members of non-indigenous minority communities that have separate cultural traditions and close material and cultural ties to their ancestral territories have rights that are similar (but not simply identical) to those of indigenous peoples, and States should respect and protect their rights as well as those of indigenous peoples”).

[24] http://www.thecihr.org/. Members are listed as: BirdLife International, Conservation International, Fauna & Flora International, The Nature Conservancy, the International Union for the Conservation of Nature (IUCN), the Wildlife Conservation Society, and the World Wide Fund for Nature (WWF).

[25] VTC 2016, para. 68

[26] IACHR, Kaliña and Lokono Peoples (Suriname), Merits Report No. 79/13, Case 12.639, 18 July 2013, at para. 134.

[27] See e.g., IACHR, Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources. Norms and Jurisprudence of the Inter-American Human Rights System, OEA/Ser.L/V/II, 30 December, 2009.

[28] See e.g., UNDRIP, Art. 26(1), providing that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”

[29] See e.g., IACHR, Indigenous and Tribal Peoples’ Rights over their Ancestral Lands, supra.

[30] See e.g., Kaliña and Lokono Peoples, para. 139, footnote 178, where the Court cites UNDRIP, Art. 26, and states that “Similarly, [that article] recognizes the right to lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired, as well as the right to own, use, develop and control these lands; thus, States must give legal recognition and protection to these lands, respecting the customs, traditions and land tenure systems of the indigenous peoples concerned.”

[31] See e.g., Saramaka People v. Suriname, IACTHR, Ser. C No. 172, 28 November 2007, at para. 129 (hereinafter “Saramaka People”).

[32] See e.g., Asmundsson v. Iceland, ECtHR, Judgment of 12 October 2004, at §40 (ruling that “Unjustifiable differential treatment in itself” strongly supports a finding that restrictive measures are impermissible, “which consideration must carry great weight in the assessment of the proportionality issue…”); and Xákmok Kásek Indigenous Community v. Paraguay, IACTHR, Ser. C No. 214, 24 August 2010, at para 274 (hereinafter “Xákmok Kásek”). Such considerations are also incorporated into domestic legal regimes where regard to equality is often constitutionally required when assessing the ‘necessity’ of measures limiting rights (e.g., Section 36 of the South African Constitution).

[33] See e.g., Hatton v. United Kingdom, European Court of Human Rights, Judgment of 8 July 2003, at §127; African Commission on Human and Peoples’ Rights v. Kenya, ACTHPR, Application No. 006/2012, Judgment, 26 May 2017, para. 129 (hereinafter “AfCom v. Kenya”).

[34] Hatton v. United Kingdom, European Court of Human Rights, Judgment of 8 July 2003, at §127 (where the ECHR identified the obligation of states to minimize interferences with rights by seeking alternative solutions, “and by generally seeking to achieve their aims in the least onerous way as regards human rights”).

[35] Case of Ricardo Canese, IACTHR, Ser. C No. 111, 31 August 2004, at para. 96; Case of Herrera-Ulloa, IACTHR, Ser. C No. 107, 2 July 2004, at para. 121 (quoting Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (arts. 13 and 29 American Convention on Human Rights), OC-5/85, 13 November 1985, para. 30). See also Article 46(2) of the UN Declaration on the Rights of Indigenous Peoples (providing that restrictions on indigenous peoples’ rights must be “non-discriminatory and strictly necessary,” and solely concern securing due recognition and respect for the rights of others or the “just and most compelling requirements” of democratic society”).

[36] See e.g., Angela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009, at para. 7.6 (ruling that, in the case of indigenous peoples, State parties “must respect the principle of proportionality so as not to endanger the very survival of the community and its members”) and; Saramaka People, at para. 128, and 129-134 (defining ‘survival’ as indigenous peoples’ “ability to ‘preserve, protect and guarantee the special relationship that they have with their territory’, so that ‘they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected’”).

[37] Sporrong & Lonnroth v. Sweden, European Court of Human Rights, Judgment of 23 Sept. 1982, at §69.

[38] Various human rights bodies apply strict standards of scrutiny to restrictions to indigenous peoples’ rights and explicitly reject the application of a ‘margin of appreciation’ in such cases. See e.g., I. Lansman et al. vs. Finland (Communication No. 511/1992), CCPR/C/52/D/511/1992, at para. 9.4 (observing that “A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27”); and, Australia. CERD/C/AUS/CO/14, 14 April 2005, para. 16.

[39] C. Sobrevila, The Role of Indigenous Peoples in Biodiversity Conservation: the natural but often forgotten partners, (World Bank, Washington D.C., 2008), at p. 5 and 20.

[40] Id. (citing research conducted in the Amazon and then again in southern Mexico and Central America, comparing maps of forest cover and biodiversity with indigenous territories and finding that the highest areas of forest cover, in some cases, the only forest cover, and highest incidences of biodiversity all coincided with the indigenous territories).

[41] S. Stevens, Indigenous Peoples, National Parks, and Protected Areas: A New Paradigm (U. Arizona Press, 2014) (summarizing the findings of the various sources).

[42] A. Nelson & K. Chomitz, Effectiveness of Strict vs. Multiple Use Protected Areas in Reducing Tropical Forest Fires: A Global Analysis Using Matching Methods, PLoS ONE 6(8) 2011.

[43] Id. at Table 6.

[44] See e.g., D. Sheil, M. Boissière & G. Beaudoin, Unseen sentinels: local monitoring and control in conservation’s blind spots, 20(2) Ecology and Society 39 (2015); & C. Stevens, R. Winterbottom, K. Reytar & J. Springer, Securing Rights, Combating Climate Change. How Strengthening Community Forest Rights Mitigates Climate Change (WRI/RRI 2014)

[45] See also P. Kashwan, Democracy in the Woods. Environmental Conservation and Social Justice in India, Tanzania, and Mexico (OUP: Oxford 2017) (examining, inter alia, the role of land rights in environmental protection and social justice).

[46] The Role of Indigenous Peoples in Biodiversity Conservation, at p. 45. See also V. Toledo, Indigenous Peoples and Biodiversity, in S. Levin et al., (eds.) Encyclopedia of Biodiversity, 2nd Ed. Academic Press (2007), at p. 1 (further explaining, at p. 9, that “The research accumulated in the three last decades by investigators belonging to the fields of conservation biology, linguistic and anthropology of contemporary cultures, ethnobiology and ethnoecology, have evolved convergently towards a shared principle: that world's biodiversity only will be effectively preserved by preserving diversity of cultures and vice-versa;” and “it is essential to recognize the necessity of empowering local communities. That is to maintain, reinforce or give control to the indigenous communities on their own territories and natural resources…. Important here are legally recognized and enforceable rights to lands and waters, which give the communities both an economic incentive and a legal basis for stewardship.”)

[47] Kaliña and Lokono Peoples, Testimony of Expert Witness, Victoria Tauli-Corpuz, Audio Transcript, Part 2, at 1:30:31.

[48] JK 2017, at para. 59.

[49] Kaliña and Lokono Peoples, Concluding Statement of the IACHR, Audio Transcript, Part 3, at 1:32:00 (observing that there is “no rationale connection, none” in the case sub judice).

[50] See e.g., Indigenous Community Yakye Axa v. Paraguay, IACTHR, Ser. C, No. 125, June 17, 2005, at para. 145 (explaining that for “restrictions to be compatible with the Convention, they must be justified by collective objectives that, because of their importance, clearly prevail over the necessity of full enjoyment of the restricted right”).

[51] Endorois, at para. 212.

[52] Id. at para. 214 (stating also that any limitations on rights must be proportionate to a legitimate need, and should be the least restrictive measures possible, and, at para. 215, that: “a limitation may not erode a right such that the right itself becomes illusory;” “the point where such a right becomes illusory, the limitation cannot be considered proportionate – the limitation becomes a violation of the right;” and “the Respondent State has not only denied the Endorois community all legal rights in their ancestral land, rendering their property rights essentially illusory, but in the name of creating a Game Reserve and the subsequent eviction of the Endorois community from their own land, the Respondent State has violated the very essence of the right itself, and cannot justify such an interference with reference to ‘the general interest of the community’ or a ‘public need’”).

[53] AfCom v. Kenya, para. 130.

[54] Id. at para. 145.

[55] Id. para. 189 (finding that “the Respondent has not adequately substantiated its claim that the eviction of the Ogiek population was for the preservation of the natural ecosystem of the Mau Forest. Considering that the Respondent has interfered with the cultural rights of the Ogieks through the evictions and given that the Respondent invokes the same justification of preserving the natural ecosystem for its interference, the Court reiterates its position that the interference cannot be said to have been warranted by an objective and reasonable justification. … In view of this, the purported reason of preserving the natural environment cannot constitute a legitimate justification for the Respondent's interference with the Ogieks' exercise of their cultural rights”).

[56] See e.g., Xákmok Kásek, para. 157; and IACHR, Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities, OEA/Ser.L/V/II., Doc. 47/15, 31 December 2015, para. 259.

[57] See e.g., Kichwa Indigenous People of Sarayaku v. Ecuador, IACTHR, Ser. C No. 245, 27 June 2012, para. 146 (explaining that “the protection of the territories of indigenous and tribal peoples also stems from the need to guarantee the security and continuity of their control and use of natural resources, which in turn allows them to maintain their lifestyle. This connection between territory and natural resources that indigenous and tribal peoples have traditionally maintained, one that is necessary for their physical and cultural survival and the development and continuation of their worldview…”); and Río Negro Massacres, IACTHR, Ser. C No. 250, 4 September 2012, at para. 177 (stating that “in keeping with its consistent case law on indigenous matters, in which it has recognized that the relationship of the indigenous peoples with the land is essential for maintaining their cultural structures and for their ethnic and material survival…”).

[58] Saramaka People, at para. 128 (“the State may restrict the Saramakas’ right to use and enjoy their traditionally owned lands and natural resources only when such restriction complies with the aforementioned requirements and, additionally, when it does not deny their survival as a tribal people”).

[59] Id. para. 134.

[60] See e.g., Concluding observations of the Human Rights Committee: Australia 28/07/2000, CCPR/CO/69/AUS, at para. 10 and 11 (observing that Article 27 requires that “necessary steps should be taken to restore and protect the titles and interests of indigenous persons in their native lands…” and that; “securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering), and protection of sites of religious or cultural significance for such minorities … must be protected under article 27…”); accord, Bernard Ominayak, Chief of the Lubicon Lake Band vs. Canada, A/45/40, vol. 2 (1990); Apirana Mahuika et al. vs. New Zealand, (Communication No. 547/1993, 15/11/2000), CCPR/C/70/D/547/1993 (2000); and Angela Poma Poma v. Peru, CCPR/C/95/D/1457/2006 (2009). 

[61] Kaliña and Lokono Peoples, para. 196. See also Yakye Axa v. Paraguay, supra, para. 148.

[62] Kaliña and Lokono Peoples, para. 196. See also Garífuna Community of Punta Piedra v. Honduras, IACTHR, Ser. C, No. 304, 8 October 2015, paras. 168-73 (finding violations of property and participation rights in connection with the establishment of a protected area and the adoption of its management plan).

[63] Clyde River (Hamlet) v. Petroleum Geo‑Services [2017] SCC 40, at para. 70.

[64] See e.g., Endorois; Committee on the Elimination of Racial Discrimination: Ethiopia. CERD/C/ETH/CO/15, at para. 22; Concluding observations of the Committee on Economic, Social and Cultural Rights: Thailand, E/C.12/THA/CO/1-2, para. 10; and IACHR, Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities, OEA/Ser.L/V/II., Doc. 47/15, 31 December 2015, para. 259 (stating that “the IACHR underscores that when the establishment of protected areas affects indigenous territories, the previously mentioned special guarantees in relation to extraction and development projects are also applicable”).

[65] See e.g., notes 56-60 supra; Saramaka People, para. 128-34; Committee on Economic, Social and Cultural Rights, General comment No. 21, Right of everyone to take part in cultural life, E/C.12/GC/21, 21 December 2009, at para. 36-7 (requiring that states parties “respect the principle of free, prior and informed consent of indigenous peoples in all matters covered by their specific rights”); and Angela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009, at para. 7.6 (stating that “the admissibility of measures which substantially compromise or interfere with the culturally significant economic activities of a minority or indigenous community depends on whether the members of the community in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy. The Committee considers that participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community”).

[66] See e.g., Decision XII/12, Plan of Action on Customary Sustainable Use of Biological Diversity; and Decision X/31, Protected Areas.

[67] Kaliña and Lokono Peoples, para. 192.

[68] Id. para. 197.

[69] Id. para. 286.

[70] Id. 

[71] Id. Footnote 230.

[72] Id. Footnote 231 citing Article 12 of the United Nations Declaration on the Rights of Indigenous Peoples and Decisions adopted by the Conference of the Parties to the Convention on Biological Diversity at its twelfth meeting, Decision XII/12, paras. 8 and 9. See also Sarayaku v. Ecuador, supra, para. 146, 147 (stating that “lack of access to the territories and their natural resources may prevent indigenous communities from using and enjoying the natural resources necessary to ensure their survival, through their traditional activities; or having access to their traditional medicinal systems and other socio-cultural functions, thereby exposing them to poor or inhumane living conditions, to increased vulnerability to diseases and epidemics, and subjecting them to extreme situations of vulnerability that can lead to various human rights violations, as well as causing them suffering and harming the preservation of their way of life, customs and language”).

[73] Id.

[74] Garífuna Community of Punta Piedra v. Honduras, IACTHR, Ser. C, No. 304, 8 October 2015, paras. 168-73, 182.

[75] Id. para. 280.

[76] Id. para. 292.

[77] UN Declaration, Art. 28(1).

[78] See e.g., F. MacKay, Indigenous Peoples and the Right to Restitution: Implications of Inter-American Human Rights Jurisprudence for Conservation Practice, 15 IUCN Journal of Conservation Matters 209-22 (2007).

[79] Endorois, para. 199 (explaining that “The African Commission is of the view that … the Endorois property rights have been encroached upon, in particular by the expropriation and the effective denial of ownership of their land”); and Recommendations 2(a) (recommending that Kenya “Recognise rights of ownership to the Endorois and Restitute Endorois ancestral land”).

[80] AfCom v. Kenya, para. 219-20 (concerning restitution) and 223 (where “The Court decides that it shall rule on any other forms of reparations in a separate decision, taking into consideration the additional submissions from the Parties”).

[81] The UN Committee on the Elimination of Racial Discrimination, for instance, has explicitly articulated the principles applicable to establishment of nature reserves in indigenous peoples’ territories. Two main inter-related rules apply: first, in 2002, the Committee held that “no decisions directly relating to the rights and interests of members of indigenous peoples be taken without their informed consent” in connection with a nature reserve in Botswana. Botswana. 23/08/2002, A/57/18,paras.292-314, at 304. Second, in connection with a national park in Sri Lanka, the Committee called on the state to “recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources.” Sri Lanka. 14/09/2001, A/56/18, paras. 321-342, at 335. See also Ethiopia, CERD/C/ETH/CO/15, para. 22; and Suriname, CERD/C/SUR/CO/13-15, para. 26. More generally, the Committee has recognized that indigenous peoples have a right to restitution of their traditional territories and resources that also applies to nature reserves previously established in their territories. See e.g., Concluding observations of the Committee on the Elimination of Racial Discrimination: Guatemala, CERD/C/GTM/CO/11, 15 May 2006, at para. 17.

[82] Durban Accord: Action Plan, adopted at the Vth IUCN World Parks Congress, Durban South Africa (2003), at p. 248-9, calling for “participatory mechanisms for the restitution of indigenous peoples’ traditional lands and territories that were incorporated in protected areas without their free and informed consent…;” and A strategy of innovative approaches and recommendations to enhance the diversity, quality and vitality of governance in the next decade, 2014 World Parks Congress, at p. 7, deciding that “Governments and UN human rights bodies … [should] establish effective monitoring, restitution and accountability mechanisms to ensure that rights-based approaches and international standards of justice are applied in all conservation programmes. This should redress past and ongoing injustices suffered by indigenous peoples … including restitution of lands expropriated without free, prior and informed consent…”).

[83] Xákmok Kásek, at para. 274.

[84] Id. at para. 82.

[85] Id. at para. 116 (see also para. 311-13, 337(26)), and, at para. 313 (ordering that “the State must take the measures necessary to ensure that Decree No. 11,804 [concerning the protected area] is not an obstacle to returning the traditional land to the members of the Community”)).

[86] Kaliña and Lokono Peoples, at para. 168.

[88] Id. para. 166 (explaining that that “the violations that have been verified owing to the failure to recognize the property of the Kaliña and Lokono, as well as the failure to delimit their territory, do not allow this Court to know the precise dimension of their traditional territory that is within these reserves, and which has already resulted in the violation of the right to collective property”).

[88] Id. para. 278, 279(b) – 282 and 284 – 285.

[89] Id.

[90] Id. para. 168 (referencing paras. 155 and 165).

[91] Id. para. 173 (also explaining that “the Court finds that a protected area consists not only of its biological dimension, but also of its socio-cultural dimension and that, therefore, it requires an interdisciplinary, participatory approach”). See also para. 181 (stating that “…the protection of natural areas and the right of the indigenous and tribal peoples to the protection of the natural resources in their territories are compatible, and it emphasizes that, owing to their interrelationship with nature and their ways of life, the indigenous and tribal peoples can make an important contribution to such conservation”).

[92] Id. at para. 166.

[93] Id. at para. 165 (stating that “in the case of the Xákmok Kásek, the Court established that: ‘[…] the State must adopt the necessary measures to ensure that [its domestic law concerning a protected area] does not represent an obstacle to the return of the traditional lands to the members of the Community.’ It should be noted that, in that case, the protected area was established at a time when the Court had jurisdiction”) (footnote omitted).