Human rights implications of the climate change regulatory framework on... peoples’ lands in Africa

Human rights implications of the climate change regulatory framework on... peoples’ lands in Africa

Human rights implications of the climate change regulatory framework on indigenous peoples’ lands in Africa by

Ademola Oluborode Jegede

Submitted in partial fulfilment of the requirement for the degree

LLD (Human Rights)

In the Faculty of Law,

University of Pretoria

(26 August 2014)

Supervisor:

Professor Michelo Hansungule

Annexure G

University of Pretoria

Declaration of Originality

Full names of student: ADEMOLA OLUBORODE JEGEDE

......................................................................…………………………………………………………………

Student number: 28521383

Declaration

1. I understand what plagiarism is and am aware of the University’s policy in this regard.

2. I declare that this thesis is my own original work. Where other people’s work has been used

(either from a printed source, Internet or any other source), this has been properly acknowledged and referenced in accordance with departmental requirements.

3. I have not used work previously produced by another student or any other person to hand in as my own.

4. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as his or her own work.

Signature of student:

....……………………………………………………………………………......

Signature of supervisor:

………………......………………………………………………………….. i

Dedication

Bolaji (BJ), your sacrifice is much! ii

Acknowledgments

It takes a mix of insanity and bravery to embark on this challenging race. If I have been successful, I could not have done it alone but only because I have been greatly helped. My appreciation goes to my ever present help in this journey, the one who came to save his own, the

Lord Jesus, for ordering my path aright, Emmanuel, you have done all things well!

Of course, I am thankful to the people who did not leave me alone to my struggle. Those who, with love and great discipline, have lifted the veil for me to see beyond my several limits are worthy of appreciation. They are many, but I single out my supervisor, Professor Michelo

Hansungule, for his fatherly direction and recommendations, from the conception to the delivery of the thesis, urging me that my focus is not misplaced: my goal is possible, yes it is achievable!

Of no less importance to me in this race is Professor Frans Viljoen, the pleasant director of the

Centre for Human Rights, thank you, for igniting the fire, empassioning my hope and drive, and since inception, approving me for opportunities. Also, my appreciation goes to Associate

Professor Magnus Killander for his contributions and comments on articles and chapters at research meetings. Each and every one of you put your wisdom and understanding within my reach, I am humbled and grateful.

In the course of writing the thesis, I received much help from research visits to Abo Akademi,

Finland and the Centre for International Environmental Law (CIEL), the United States of

America. I gained a lot from consultation meetings in relation to human rights and climate change in different fora, particularly in Geneva, Switzerland with Professor John Knox, the

United Nations Independent Expert on Human Rights and the Environment. I confess that these opportunities guided me to what I needed to know on a broad subject in necessarily short visits.

I appreciate all my „uncles‟, „aunties‟, friends and colleagues including, Mr Kehinde Aina, Elder

Tokunbo and Prof (Aunty) Yemisi Bamgbose, Norman Taku, Dr Martin Nsirbiwa, Dr Soyeju,

Eva Filzmoser (Carbon Market Watch), Alysa Ajohl (CIEL), Jerry Bamgbade, Yvonne Oyieke,

Eric, Sayaad, Lola, Ali, Thuto, Joshua, Tope Oloko, Remi Oyekunle, Romola (Ajoke) Adeola,

Layi Obayan, Azubike, Melhik, Alabo Ozubide, Jehoshapat Njau, Miamingi, Dinokopila, Bright,

Bunmi and Busingye, who have „words in words‟; and my parents and siblings, particularly

Funmi and sister Dammy, who have „hands in hands‟; as well as my Christian fathers, who have

„prayers in prayers‟ travelled along with me on this adventure. I am grateful. iii

I hope it will be understood, and very well too, if I extend gratitude to my children, Toluwani,

Oluwatoni, Temiloluwa and Oluwataayo for their understanding on this journey; and finally, for her love, faith and encouragement over the past ten years, my sweet angel, Bolaji. Surely, I have incurred incalculable debts, sweetheart, to you and the children. I can only ask that you remain strong with me in the hope and belief that rewards will come. Yes! Somehow for the better, the faithful one has promised, sweetheart, the climate will change! iv

Abstract

There is increasing certainty about the global reality of climate change and its negative effects on society. In Africa, owing to a way of life that is culturally and collectively dependent on land and its natural resources, actual and projected evidence shows that indigenous peoples are affected than other populations by the adverse impact of climate change. Indigenous peoples will also be adversely affected by the impact of climate change response measures, particularly adaptation process in accessing funds and the REDD+ mitigation initiatives on their land. Consequently, this thesis examines the extent of protection accorded to indigenous peoples‟ land tenure and use against the backdrop of relevant global, national and regional climate change regulatory frameworks. Using Zambia, Tanzania and Nigeria as case studies, the thesis finds that there is a trend towards inadequate protection of indigenous peoples‟ land tenure and use in the domestic climate change regulatory framework for addressing the adverse effects of climate change and response measures in Africa. The inadequate protection of land use and tenure has negative implications for indigenous peoples‟ participation, carbon rights (a new form of property rights in the forests) and benefit-sharing, as well their access to grievance mechanism and remedies.

In response to the inadequacy, the thesis demonstrates that it is incompatible with the obligations of states and a breach of crucial rights guaranteed to indigenous peoples under regional human rights instruments. The thesis then highlights the potential in the regional climate change regulatory framework and particularly, the promotional, protective, interpretive and assembly entrusted functions of the African Commission on Human and Peoples‟ Rights (the Commission) as specific channels by which the regional application of human rights can protect the land rights of indigenous peoples in the context of climate change in Africa. Notwithstanding these potentials, reforms are necessary at the international, national and regional levels for effective protection of indigenous peoples‟ land rights in the context of climate change impact in Africa.

These reforms include the reconceptualization of principles of „sovereignty‟, „country-driven‟ and „national legislation‟ at the international level, and at the national level, the creation of a new stand-alone regulatory framework or harmonisation of national legislation relating to climate change to respect indigenous peoples‟ land rights. At the regional level, there is need for an improved interaction between climate change related institutions and initiatives with human rights mechanisms and an official regional policy statement on the protection of indigenous peoples‟ land rights in the light of climate change impact in Africa. v

Table of Contents

Declaration of Originality ............................................................................................................. i

Dedication.......................................................................................................................................ii

Acknowledgments ........................................................................................................................ iii

Abstract...........................................................................................................................................v

Table of Contents ......................................................................................................................... vi

List of Abbreviations ................................................................................................................. xiv

Chapter 1:

Introduction ............................................................................................................... 1

1.1. Background .............................................................................................................................. 1

1.1.1 Intersecting terms? Indigenous peoples, forest-dependent peoples, local populations ......... 3

1.1.2 Overlapping issues? Climate change, environment, forests and indigenous peoples‟ lands.

.................................................................................................................................... 11

1.1.3 Intersecting governance: Defining a climate change regulatory framework ....................... 15

1.2 Study thesis ............................................................................................................................. 19

1.3 Problem statement ................................................................................................................... 20

1.4 Objective of the study ............................................................................................................. 20

1.5 Research questions .................................................................................................................. 20

1.6 Assumptions ............................................................................................................................ 21

1.7 Research methods ................................................................................................................... 21

1.8 Literature review ..................................................................................................................... 22

1.9 Limitations of study ................................................................................................................ 29

1.10 Synopsis ................................................................................................................................ 32

Chapter 2:

Human rights and climate change: Conceptual framework ............................... 36

2.1 Introduction ............................................................................................................................. 36

2.2 Human rights in climate change discourse: Conceptual dilemma .......................................... 37

2.2.1 Two perspectives: An environmental or human rights concern? ......................................... 39

2.2.1.1 Climate change as an environmental concern ................................................................... 39

a. Complex global environmental problem ....................................................................... 40

b. Link of human rights with climate change induced activities....................................... 42

vi

2.2.1.2 Climate change as a human rights concern ....................................................................... 48 a. Human source of climate change .................................................................................. 48

b. Human vulnerability to climate change ........................................................................ 49

2.3 Human rights as a conceptual approach: Which approach, what features? ........................... 53

2.3.1 Human rights and schools of thought .................................................................................. 53

2.3.2 Core human rights principles ............................................................................................... 57

2.3.2.1 Universality and inalienability .......................................................................................... 58

2.3.2.2 Interdependency and inter-relatedness .............................................................................. 61

2.3.2.3 Equity and non-discrimination .......................................................................................... 64

2.3.2.4 Participation ...................................................................................................................... 68

2.3.2.5 Accountability ................................................................................................................... 69

2.3.3 Intersection with environmental law .................................................................................... 75

2.3.3.1 Procedural rights ............................................................................................................... 76

2.3.3.2 Interpretation of existing human rights ............................................................................. 78

2.3.3.3 Right to environment ........................................................................................................ 81

2.3.3.4 International environmental law principles ...................................................................... 83 a. Intergenerational equity ................................................................................................. 83

b. Intra-generational equity ............................................................................................... 87

2.4 Conclusion .............................................................................................................................. 90

Chapter 3:The notion of indigenous peoples’ land rights and the adverse effects of climate

change in Africa ....................................................................................................... 91

3.1 Introduction ............................................................................................................................. 91

3.2 The nature of indigenous peoples‟ land rights ........................................................................ 92

3.2.1 Land use as an emblem of cultural and environmental integrity ......................................... 93

3.2.1.1 Subsistence land use ......................................................................................................... 94

3.2.1.2 Subsistence use of land under international environmental law ....................................... 98

3.2.1.3 Subsistence land-use under international human rights law ........................................... 103

3.2.2 Indigenous peoples‟ land tenure: Essential features .......................................................... 109

3.2.2.1 Collective land ownership............................................................................................... 111

vii

3.2.2.2 Customary tenure ........................................................................................................... 117

3.2.3 Concept of parallel use ....................................................................................................... 121

3.3 Indigenous peoples‟ land tenure and use v contrasting doctrines of international law ......... 123

3.3.1 Doctrine of „discovery‟ ...................................................................................................... 124

3.3.2 Doctrine of terra nullius .................................................................................................... 127

3.4 Subordination of indigenous peoples‟ lands in colonial and post-independent Africa ........ 129

3.4.1 Colonial legislation ............................................................................................................ 130

3.4.2 Post-independent Africa..................................................................................................... 133

3.5 Cause and effect of climate change as threat to land-tenure and use .................................... 134

3.5.1 Cause of climate change as a threat ................................................................................... 135

3.5.2 Climate change as a threat ................................................................................................. 139

3.5.3 Effects of climate response as a threat ............................................................................... 142

3.6 Conclusion ............................................................................................................................ 145

Chapter 4:The international climate change regulatory framework in relation to

indigenous peoples’ lands ...................................................................................... 146

4. 1 Introduction .......................................................................................................................... 146

4.2 The international climate change regulatory framework ...................................................... 146

4.2.1 Regulatory institutions and indigenous peoples ................................................................ 147

4.2.1.1 Conference of Parties / Meeting of the Parties ............................................................... 147

4.2.1.2 International Panel on Climate Change ......................................................................... 150

4.2.2 Subsidiary Body for Scientific and Technological Advice................................................ 151

4.2.3 Subsidiary Body for Implementation ................................................................................ 153

4.2.4 Ad-hoc Working Group on Long Term Cooperative Action Under the Convention ........ 155

4.2.5 Ad-hoc Working Group on Further Commitment for Annex 1 Parties Under the Kyoto

Protocol.............................................................................................................................. 156

4.3 Regulatory frameworks on the responses to climate change ................................................ 157

4.3.1 International adaptation regulatory framework ................................................................ 159

4.3.1.1 International funds for adaptation ................................................................................... 161

viii

1. Global Environment Facility ....................................................................................... 162 a. GEF institution and indigenous peoples

...............................................................................

162

b. GEF instruments and indigenous peoples

............................................................................ 164

2. Green Climate Fund .................................................................................................... 166

a. GCF structure and indigenous peoples

........................................................................... 167

b. GCF instruments and indigenous peoples

....................................................................... 168

3. Adaptation Fund .......................................................................................................... 169

a. AF structure and indigenous peoples

.................................................................................... 170

b. AF instruments and indigenous peoples

...............................................................................

171

4.3.2 International regulatory framework and mitigation ........................................................... 174

4.3.2.1 Forests in international environmental law ..................................................................... 175

4.3.3 Forests as an international climate mitigation response .................................................... 177

4.3.3.1 Reducing emissions from deforestation and forest degradation (REDD+) .................... 179

a. On the road to RED

........................................................................................................ 180

b. Departing from RED to REDD for REDD+

..................................................................... 181

4.3.3.2 United Nations Collaborative Programme on the Reduction of Emissions from

Deforestation and Forest Degradation in Developing Countries: Institutions and instruments ...................................................................................................................... 185 a. Institutions and indigenous peoples

................................................................................. 185

b. REDD+ instruments and indigenous peoples

.................................................................... 188

i. Social Principles Risk Assessment Tools

.................................................................................... 189

ii. Social and Environmental Principles and Criteria

.......................................................................

190

iii. Guidelines on Stakeholder Engagement in REDD+ Readiness with a Focus on the Participation of

Indigenous Peoples and Other Forest-Dependent Communities (Joint Stakeholder

Guidelines

)

………………………………………………………………………………………………………………….

191

iv. Guidelines on Free, Prior and Informed Consent

....................................................................... 193

c. Implications of instruments for indigenous peoples

........................................................... 195 i. Land tenure and use

.................................................................................................................. 195

ii. Participation

............................................................................................................................ 198

iii. Carbon rights and benefit-sharing

............................................................................................ 200

iv. Grievance mechanism and access to remedies

........................................................................... 201

4.4 Subordinating notions in the international climate regulatory framework ........................... 203

4.4.1 Notion of „sovereignty‟ ...................................................................................................... 203

ix

4.4.2 Notion of „country-driven‟ ................................................................................................. 210

4.4.3 Deference to „national legislation‟ ..................................................................................... 214

4.5 Conclusion ............................................................................................................................ 217

Chapter 5: National climate change regulatory frameworks in relation to indigenous

peoples’ lands.......................................................................................................... 219

5.1 Introduction ........................................................................................................................... 219

5.2 Significance of a domestic regulatory framework ................................................................ 219

5.2.1 Trend in national frameworks: Case studies in Africa ....................................................... 220

5.2.1.1 The United Republic of Tanzania ................................................................................... 221

5.2.1.2 Republic of Zambia......................................................................................................... 225

5.2.1.3 Federal Republic of Nigeria ............................................................................................ 230

5.2.2 The domestic climate change regulatory response of adaptation ...................................... 234

5.2.2.1 The United Republic of Tanzania ................................................................................... 234

5.2.2.2 Republic of Zambia......................................................................................................... 235

5.2.2.3 Federal Republic of Nigeria ............................................................................................ 236

5.2.2.4 Implications of inadequate reflection of land tenure and use in adaptation process ...... 237

5.2.3 The national climate change regulatory response of REDD+ as a mitigation measure..... 239

5.2.3.1 REDD+ readiness in selected states of Africa in relation to indigenous peoples‟ lands 241

1. Tanzania and readiness for REDD+ ............................................................................ 242 a. Readiness institutions and composition

................................................................................ 242

b. Regulatory framework and indigenous peoples‟ lands

.........................................................

244

c. Zanzibar: Regulatory framework and indigenous peoples‟ lands

......................................... 253

d. Implications of inadequate land tenure and use legislation

..................................................

254

2. Zambia and readiness for REDD+ ............................................................................. 260 a. Readiness institutions and composition

................................................................................ 260

b. Regulatory framework and indigenous peoples‟ lands

......................................................... 262

c. Implications of inadequate land tenure and use legislation

.................................................. 273

3 Nigeria and readiness for REDD+ ............................................................................ 278

a. REDD+ institutions and composition

................................................................................... 279

b. Regulatory framework and indigenous peoples‟ lands

......................................................... 286

x

c. Implications of inadequate land tenure and use legislation

.................................................. 294

5.3 Conclusion ............................................................................................................................ 300

Chapter 6:The inadequacy of the national climate change regulatory framework in relation

to indigenous peoples’ lands: Human rights as regional response .................... 301

6.1 Introduction ........................................................................................................................... 301

6.2 Legal basis for engaging human rights at the regional level ................................................ 301

6.2.1

Inconsistency with obligations and range of rights under human rights instruments ....... 304

6.2.1.1

Human rights instruments and state obligations ............................................................. 305

a.

African Charter on Human and Peoples‟ Rights ...................................................... 306

b.

African Union Convention for the Protection and Assistance of Internally Displaced

Persons in Africa ...................................................................................................... 307

c.

African Convention on the Conservation of Nature and Natural Resources ........... 309

6.2.2

Incompatibility of weak national climate regulatory framework with obligations of states…….. ........................................................................................................................ 311

6.2.3 Threat to a range of rights guaranteed under the African Charter ..................................... 315

6.2.3.1 Right to property ............................................................................................................. 315

6.2.3.2 Right of participation ...................................................................................................... 318

6.2.3.3

Right to food ................................................................................................................... 320

6.2.3.4 Right to water .................................................................................................................. 321

6.2.3.5 Right to adequate housing ............................................................................................... 322

6.2.3.6 Right to healthy environment.......................................................................................... 324

6.2.3.7 Right to peace ................................................................................................................. 326

6.2.3.8 Right to self-determination ............................................................................................. 327

6.3 The regional climate change regulatory framework and potential for human rights ........... 331

6.3.1

Committee of African Heads of State and Government on Climate Change .................... 332

6.3.2 African Ministerial Conference on the Environment ......................................................... 335

6.3.3

Climate for Development in Africa (ClimDev-Africa) Programme ................................. 338

6.3.3.1

African Climate Policy Centre (ACPC) .......................................................................... 340

6.3.3.2

Climate Change and Desertification Unit ....................................................................... 342

xi

6.3.3.3

ClimDev Special Fund .................................................................................................... 344

6.3.4 African Union Commission ............................................................................................... 347

6.3.5 New Partnership for African Development ....................................................................... 349

6.3.6 Pan-African Parliament ...................................................................................................... 352

6.3.7 Peace and Security Council ............................................................................................... 356

6.4 Potentials in regional human rights mechanisms with focus on the Commission ................ 359

6.4.1 Promotional functions ........................................................................................................ 361

6.4.1.1

State reporting ................................................................................................................. 361

6.4.1.2

Special mechanisms ........................................................................................................ 362

1.

Special rapporteurs ................................................................................................... 363

2.

Working groups........................................................................................................ 366

6.4.1.3 „Promotional visits‟, seminars and conferences‟, „publication and information dissemination‟ ................................................................................................................. 369

6.4.1.4 NGOs and national human rights institutions ................................................................. 371

6.4.1.5 Resolutions ...................................................................................................................... 373

6.4.2 Protective mandate ............................................................................................................. 375

6.4.2.1 Inter-state communications ............................................................................................. 377

6.4.2.2

Individual communications ............................................................................................. 378

6.4.3 Interpretive functions ......................................................................................................... 379

6.4.4 Assembly-entrusted tasks................................................................................................... 379

6.5 Conclusion ............................................................................................................................ 380

Chapter 7:

Conclusion and Recommendations ...................................................................... 383

7.1 Conclusion ............................................................................................................................ 383

7.1.1 Link between human rights and climate change ................................................................ 383

7.1.2 Indigenous peoples‟ land rights and the adverse effects of climate change ..................... 385

7.1.3 Extent of protection of indigenous peoples‟ lands in the international climate change regulatory framework ........................................................................................................ 387

7.1.4 National climate change regulatory frameworks and indigenous peoples‟ lands .............. 391

xii

7.1.5 Indigenous peoples‟ lands and inadequate climate change regulatory frameworks: Human rights as regional response ................................................................................................. 395

7.2 Recommendations ................................................................................................................. 399

7.2.1 International level .............................................................................................................. 400

7.2.2 National level ..................................................................................................................... 403

7.2.3 Regional level .................................................................................................................... 404

List of cases ................................................................................................................................ 408

List of instruments .................................................................................................................... 411

Bibliography .............................................................................................................................. 431

xiii

AA -

ACJP -

ACP-

ACPC -

AEC -

AfDB -

AF -

AFB -

AGN-

AMCEN -

AMESD -

APRM -

ASF -

AU -

AUC -

AWG-KP -

AWG-LCA -

CAHOSCC -

CANA -

CBD -

CBFM -

CCBA -

CCDA -

CCDU -

CDM -

CDSC -

CDSF -

List of Abbreviations

Administrative Agent

Australian Climate Justice Programme

Africa, Carribean Pacific Group of States

African Climate Policy Centre

African Economic Community

African Development Bank

Adaptation Fund

Adaptation Fund Board

African Group of Negotiators on Climate Change

African Ministerial Conference on the Environment

African Monitoring of Environment for Sustainable Development

African Peer Review Mechanism

African Standby Force

African Union

African Union Commission

Ad-hoc Working Group on Further Commitment for Annex 1 Parties under the Kyoto Protocol

Ad-hoc Working on Long Term Cooperative Action Under the

Convention

Committee of African Heads of State and Government on Climate Change

Climate Action Network Australia

Convention on Biological Diversity

Community Based Forest Management

Climate, Community and Biodiversity Alliance

Climate Change and Development in Africa Conference

Climate Change and Desertification Unit

Clean Development Mechanism

ClimDev Programme Steering Committee

ClimDev Special Fund xiv

CERD -

CESCR -

CEWS -

CIEL –

CKGR -

COP/CP -

CRC -

CRMAS -

Convention on the Elimination of Racial Discrimination

Committee on Economic, Social and Cultural Rights

Continental Early Warning System

Centre for International Environmental Law

Central Kalahari Game Reserve

Conference of Parties

Committee on the Rights of the Child

Climate Risk Management and Adaptation Strategy

CRMC -

CRN -

Climate Response Measures Commission

Coalition for Rainforest Nations

CRS - Cross River State

CSDCommission on Sustainable Development

DRC -

DREA -

ECHR -

ECOWAS -

Democratic Republic of Congo

Department of Rural Economy and Agriculture

European Court of Human Rights

Economic Community of West African States

EU-

FAO -

FCPF-

FIELD -

FPIC -

FR-

FRIN -

GCF-

EIA -

ECCAS-

ENRMMP-

Environmental Impact Assessment

Economic Community of Central African States

Environment and Natural Resources Management and Mainstreaming

Programme

European Union

Food and Agricultural Organisation

Forest Carbon Partnership Facility

Foundation for International Environmental Law and Development

Free Prior Informed Consent

Forest Reserves

Forestry Research Institute of Nigeria

Green Climate Fund

GDP-

GEF -

GEFTD -

Gross Domestic Products

Global Environment Facility

Global Environment Facility Trust Fund xv

HRC -

ICAO -

ICCPR-

ICESCR -

ICHRP -

ICJ -

ICJ -

IDDC -

IMO -

IOC -

IPAF -

IPCC -

IPF -

IPFP -

IUCN -

JSWG -

LAC-

LDC -

IDP-

IFAD -

IFC -

IFF-

IGAD -

IIPFCC -

IITC -

ILO -

LDCF -

LULUCF -

MAFS -

MALE -

MEA -

Human Rights Committee

International Civil Aviation Organisation

International Covenant on Civil and Political Rights

International Covenant on Economic, Social and Cultural Rights

International Council on Human Rights Policy

International Commission of Jurists

International Court of Justice

International Disability and Development Consortium

Internally Displaced Persons

International Fund for Agricultural Development

International Finance Corporation

Intergovernmental Forum on Forests

Intergovernmental Authority on Development

International Indigenous Peoples Forum on Climate Change

International Indian Treaty Council

International Labour Organisation

International Maritime Organisation

Indian Ocean Commission

Indigenous Peoples Assistance Facility

Intergovernmental Panel on Climate Change

Intergovernmental Panel on Forests

Indigenous Peoples Focal Points

International Union for Conservation of Nature

Joint Secretariat Working Group

Lands Acquisition Act

Least Developing Countries

Least Developed Countries Trust Fund

Land Use, Land-Use Change and Forestry

Ministry of Agriculture and Food Security

Ministry of Agriculture, Livestock and Environment

Multilateral Environmental Agreements xvi

MEM -

MFEA -

MFIC-

MFLD -

MITC -

MJCA -

MJK -

MLHC -

Ministry of Energy and Minerals

Ministry of Finance and Economic Affaires

Ministry of Foreign Affairs and International Co-operation

Ministry of Fisheries and Livestock Development

Ministry of Industry, Trade and Cooperatives

Ministry of Justice and Constitutional Affaires

Movimiento de la Juventud Kuna

Ministry of Lands Housing and Settlements

MNRT -

MOP/CMP -

MPTF -

MRGI -

MRV -

MTENR-

NAPA -

NASRDA -

NCCSC -

Ministry of Natural Resources and Tourism

Meeting of Parties

Multi-Partner Trust Fund Office

Minority Rights Group International

Monitoring and Measurement, Report and Verification

Ministry of Tourism, Environment and Natural Resources

National Adaptation Plan of Action

Nigeria Air Space Research and Development Agency

NCCTC -

NECC-

NEPAD -

NHRI -

NNPC-

NP-

NPD-

NRTF-

NTFP -

National Climate Change Steering Committee

National Climate Change Technical Committee

Negotiators/Experts on Climate Change

New Partnership for African Development

National Human Rights Institutions

Nigerian National Petroleum Corporation

National Programmes (NP)

National Programme Document

National REDD+ Task Force

Non-timber Forest Products

OHCHR - Office of the High Commissioner on Human Rights

PAP - Pan-African Parliament

PFM -

PGA/REDD+ -

PMO -

Participatory Forest Management

Participatory Governance Assessments and their role in REDD+

Prime Minister„s Office xvii

POW -

PRI -

PS -

PSC -

REC -

REDD-

REDD+ -

R-PP -

SADC -

SAP-

SAEP -

SBI-

SBSTA -

SCCF -

SPRAT -

STAP -

TAP -

TC -

TWG -

UDHR -

UNCCD -

UNCED -

UNDP -

UNDRIP -

UNECA -

UNFCCC -

UNFF -

UNGGIPI-

Panel of the Wise

Penal Reform International

Permanent Secretaries

Peace and Security Council

Regional Economic Communities

Reduced emissions from deforestation and forest degradation

Reducing emissions from deforestation and forest degradation, and fostering conservation, sustainable management of forests, and enhancement of forest carbon stocks

REDD+ Readiness Proposal

Southern African Development Community

Structural Adjustment Programmes

Stakeholder Assessment and Engagement Plan

Subsidiary Body for Implementation

Subsidiary Body for Scientific and Technological Advice

Special Climate Change Fund

Social Principles Risk Assessment Tools

Scientific and Technical Advisory Panel

Technical Advisory Panel

Transitional Committee

Technical Working Groups

Universal Declaration of Human Rights

United Nations Convention on Combating Desertification

United Nations Conference on Environment and Development

United Nations Development Programme

United Nations Declaration on the Rights of Indigenous Peoples

United Nations Economic Commission for Africa

United Nations Framework on Climate Change Convention

United Nations Forests Forum

United Nations Development Group Guidelines on Indigenous Peoples

Issues xviii

UNHCR-

UNHRC -

UNIFEM -

UNITAR -

UNPFIP -

UN-REDD-

UPR -

USAID -

VLRF -

VNRC -

WFP -

WHO -

WILDAF -

WMO -

WSSDPI -

United Nations High Commissioner for Refugees

United Nations Human Rights Council

United Nations Development Fund for Women

United Nations Institute for Training and Research

United Nations Permanent Forum on Indigenous Peoples

United Nations Reduced Emissions from Deforestation and forest

Degradation

Universal Periodic Review

United States Agency for International Development

Village Land Forest Reserves

Village Natural Resources Committee

World Food Programme

World Health Organisation

Women in Law and Development in Africa

World Meteorological Organisation

World Summit on Sustainable Development xix

Chapter 1

Introduction

1.1. Background

The evidence of the reality of climate change and its negative effects on society has moved beyond a mere global consensus.

1

According to the report of the Intergovernmental Panel on

Climate Change (IPCC) released in 2014, „the warming of the earth is unequivocal‟, and „human influence on the climate system is clear‟.

2

Echoing and strengthening the findings of the IPCC, a recent report released by the United States notes that the warming of the planet is „unambiguous‟ and is primarily driven by human activities.

3

Human activities are substantially increasing the concentration of greenhouse gases in the atmosphere, thus enhancing the greenhouse effect, which, in turn, has led to increased warming of the earth surface resulting in climate change.

4

The activities which put pressure on the global environment, historically, are attributed to a range of factors, including the economic development path of developed nations in the North,

5

and the over consumption or „way of life‟ of this hemisphere.

6

In contemporary time, they have been associated with the pursuit of a similar development path that has come with large scale

1

On the literature dealing with climate change, its impacts and the law, see M Haritz An incovenient deliberation: The

precautionary principles‟s contribution to the uncertainties surrounding climate change liability (2011)11-33; C Wold, D Hunter

& M Powers Climate change and the law (2009); P Collier, G Conway & T Venables „Climate change and Africa‟(2008) 24

Oxford Review of Economic Policy 337; H Reid & S Huq How we are set to cope with the impacts (2007) 1-4; A Gore An

inconvenient truth: The planetary emergency of global warming and what we can do about it (2006)

2

Established by the World Meterorogical Organisation and the United Nations Environment Programme in 1988, the IPCC reviews and accesses the most recent scientific, technical and socio-economical information relating to climate change, see

„Protection of global climate for present and future generations of mankind‟ UNG.A. Res. 43/53, 70th plenary meeting 6

December 1988 (UNGA Resolution 43/53). Its most recent report summary is IPCC „Summary for policymakers‟ in TF Stocker

et al (eds) The physical science basis. Contribution of Working Group I to the 5th Assessment Report of the Intergovernmental

Panel on Climate Change (2013) 8, 15 (IPCC Summary for policymakers); for a more detail description of the IPCC and its function, see chapter 4 of the thesis

3

JM Melillo (eds) Climate change impacts in the United States: The 3rd national climate assessment (2014) 7

4

H Le Treut et al „Historical overview of climate change‟ in S Solomon et al (eds) Climate change 2007: The physical science

basis: Contribution of Working Group I to the 4th Assessment Report of the Intergovernmental Panel on Climate Change (2007)

95-127

5

The historical responsibility of the developed countries for the state of the climate is recurringly acknowledged as underlying the principle of common but differentiated responsibility in international environmental law; see for instance, principle 7 of the

Rio Declaration which provides as follows „[i]n view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment…‟; but see, L Rajamani „The changing fortunes of differential treatment in the evolution of international environmental law‟ (2012) 88

International Affairs 605, arguing that the popularity of this principle is waning

6

B Mckibben The end of nature: Humanity, climate change and the natural world (2003)

1

agriculture, mining, construction and logging, which according to the findings of scientific research, are a substantial driver of climate change and its adverse impacts the world over.

7

Not every impact is negative, though. In Africa, the effects of climate change vary in different parts: some parts, such as northern and southern Africa, as projected, will become drier; others, such as East Africa may become wetter, with different results for food production and health conditions.

8

However, there will be more negative consequences than positive implications from climate change for Africa, more than in other regions,

9

despite the fact that the continent contributes little to its cause.

10

In general terms, established vulnerable sectors to the impact of climate change in Africa, actual and projected, are documented as water resources, food security, natural resource management and biodiversity, human health, settlements and infrastructure, and desertification.

11

However, in Africa, as elsewhere, even though indigenous peoples have contributed least to climate change, according to United Nations Development Group Guidelines on Indigenous Peoples Issues (UNGGIPI), „they are the first to face its impact‟.

12

This is not surprising considering that their collective cultural and physical survival depends on land and its natural resources,

13

which are now increasingly being affected by climate change.

14

An examination of indigenous peoples in the context of climate change impacts, however, is challenging, given the fluid and contested nature of the concept and other overlapping features about the climate change rule-making process which do not lend to a straight forward analysis.

Hence, certain preliminary clarification is necessary as a background to this study.

7

G Rist The history of development: From western origins to global faith (2009) 21-24; on the negative impacts of these activities on the climate, see RW Gorte & PA Sheikh „Deforestation and climate change‟ (March 2010) CRS Report for Congress

(March 2010) CRS Report for Congress; J Helmut & EF Lambin „What drives tropical deforestation: A meta-analysis of

proximate and underlying causes of deforestation based on subnational case study evidence‟ (2001) Land-Use and Land-Cover

Change (LUCC) Project IV; J Quan & N Dyer „Climate change and land tenure: The implications of climate change for land tenure and land policy‟ (2008) 7-8

8

Collier et al (n 1 above)

9

Collier et al (n 1 above)

10

Collier et al (n 1 above) 337; AfDB Investing in Africa‟s future (2008) 45

11

MI Boko et al „Africa: Climate change, impacts, adaptation and vulnerability‟ Boko, MI et al „Africa‟ in ML Parry et al (eds)

(2007) Climate change, impacts, adaptation and vulnerability: Contribution of Working Group II to the 4th Assessment Report of

the Intergovernmental Panel on Climate Change 433-467

12

„United Nations Development Group Guidelines on Indigenous Peoples Issues‟, February 2008

<www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdf> (accessed 20 May 2013) 8 (UNDG Guidelines on Indigenous

Peoples); also see N Stern The economics of climate change (2006) 95

13

E Daes „Principal problems regarding indigenous land rights and recent endeavours to resolve them‟ in A Eide, J Möller & I.

Ziemele (eds) Making peoples heard- Essay on human rights in honour of Gudmundur Alfreðsson (2011) 465; E Daes Study on

indigenous peoples and their relationship to land (UN Doc.E/CN.4/Sub.2/1999/18) para18 (Daes study)

14

RS Abate & EA Kronk „Commonality among unique indigenous communities: An introduction to climate change and its impacts on indigenous peoples‟ in RS Abate & EA Kronk (eds) Climate change and indigenous peoples: The search for legal

remedies (2013) 5

2

1.1.1 Intersecting terms? Indigenous peoples, forest-dependent peoples, local populations

The concept of „indigenous peoples‟ opens up a debate about who these peoples really are.

15

It also opens up a discussion about their rights regime, which, according to Swepston and

Alfreðsson, have for long existed in flux.

16

Illustrating the diverging viewpoints in anthropological scholarship on the term, Kuper notes that the recognition of certain groups as indigenous peoples is needless in that it will confer „privileged rights equal in effect as apartheid‟.

17

Contending against this position, however, Kenrick and Lewis validate not only the need for the recognition of indigenous peoples but the protection of their collective rights.

18

Thus, the meaning of this notion as well as who these people really are merit some consideration.

In some jurisdictions, the term „indigenous peoples‟ emerged from the conquests which resulted from the European discovery of the New World in the late 15th century. The victims of this drive were known as „natives‟, „aboriginal‟ or „indigenous people‟.

19

In the historical context,

„indigenous peoples‟ are viewed as communities who were the original inhabitants of territories which today are under the domination of „descendants of European settler populations‟ in south and central America.

20

This understanding, however, is questioned by experiences in Africa and Asia where the notion of „first‟ peoples-„second peoples or settlers‟ dichotomy lacks historical basis.

21

Therefore, it is not surprising that the African Commission‟s Working Group on Indigenous

Populations/Communities (Working Group) has adopted an approach which focuses on the following criteria:

15

UN Sub-Commission on Prevention of Discrimination and Protection of Minorities „Study of the problems of discrimination against indigenous population‟, UNESCO, 1986 UN Doc E/CN4 Sub2 1986/7/Adds 1-4, (Cobo‟s Report) para 379; also see M

Hansungule „Indigenous peoples and minorities in Africa: Who are these people?‟ (2006) A paper prepared for the two-day

Symposium on Indigenous Peoples and Minorities organised by the Kenyan National Commission on Human Rights on 30-31

October, 2006 at Holiday Inn, Nairobi, Kenya (on file with the author)

16

L Swepston & G Alfreðsson „The rights of indigenous peoples and the contribution by Erica Daes‟ in G Alfreðsson &M

Stavropoulou (eds) Justice pending: Indigenous peoples and other good causes: Essays in honour of Erica-Irene Daes (2000)

70-78

17

A Kuper „The return of the native‟ (June 2003) 44Current Anthropology 389

18

J Kenrick & J Lewis „Indigenous peoples‟ rights and the politics of the term „indigenous‟ (April 2004) 20 Anthropology Today

19

SJ Anaya „The evolution of the concept of indigenous peoples and its contemporary dimensions‟ in SA Dersso (ed)

Perspectives on the rights of minorities and indigenous peoples in Africa (2010) 23-42

20

P Thornberry Indigenous peoples and human rights (2002) 33-60

21

B Kingsbury „Indigenous peoples‟ in international law: A constructivist approach to the Asian controversy‟ (1998) 92

American Journal of International Law 414

3

Self-identification as indigenous and distinctly different from other groups within a state[...] special attachment to and use of their traditional land whereby their ancestral land and territory[...] an experience of subjugation, marginalisation, dispossession, exclusion or discrimination because these peoples have different cultures, ways of life or modes of production than the national hegemonic and dominant model.

22

From the above, self-identification, distinct difference, particularly, special attachment to and use of ancestral land and experience of subjugation or marginalisation as a result of their different way of life are key criteria in adjudging a group as indigenous.

23

The foregoing criteria are also emphasised in the International Labour Organisation (ILO) Convention 169

24

and later United

Nations Declaration on the Rights of Inidgenous Peoples (UNDRIP).

25

However, the requirements laid down by the Working Group are not fool proof. As Bojosi argues, they are a product of a „long enduring external mission to have the concept of indigenous peoples [...] applied to certain pre-determined peoples in Africa‟.

26

Some scholars, particularly

Viljoen, have similarly faulted the criteria, especially the requirement of attachment to the use of land, arguing that most populations in Africa are agrarian and, to some extent, remain culturally attached to the use of land.

27

The argument is also made that reliance on „attachment to the use of land‟ in defining the concept, along with an informal title of land tenure will exclude poor or rural Africans who do not fit into „indigenous peoples‟ criteria, but are dependent on informally held land.

28

Equally, there are viewpoints arguing for the need to move away from protecting

22

„Advisory Opinion of the Africa Commission on Human and Peoples‟ Rights on the United Nations Declaration on the Rights of Indigenous Peoples‟, adopted by the African Commission on Human and Peoples‟ Rights at its 41st ordinary session held in

May 2007 in Accra, Ghana (Advisory Opinion) paras 9-13; Report of the African Commission‟s Working Group of Experts on

Indigenous Populations/Communities (2005) (Working Group Report), adopted by the African Commission at its 28th ordinary session 93; also see DL Hodgson Being Maasai, becoming indigenous: Post colonial politics in a neoliberal world (2011) 36-40

23

G Alfreðsson „Minorities, indigenous and tribal peoples, and peoples: Definitions of terms as a matter of international law‟ in

N Ghanea & A Xanthaki (eds) Minorities, peoples and self-determination. Essays in honor of Patrick Thornberry (2005) 163-

172.

24

International Labour Organization (ILO), Indigenous and Tribal Peoples Convention, C169, 27 June 1989 (ILO Convention

169). For instance, according to art 1(2), self-identification of indigenous peoples is a fundamental element in determining the people. Also, in calling for the protection of indigenous peoples‟ land rights, art 14 emphasies centrality of land to their subsistence and survival

25

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly on 13

September 2007 , arts 3 and 4 emphasise their right to self-determination , while arts 25 and 26 call for the protection of their land rights

26

KN Bojosi „The African Commission Working Group of Experts on the rights of the indigenous communities/populations:

Some reflections on its work so far‟ in S Dersso (ed) Perspectives on the rights of minorities and indigenous peoples in Africa

(2010) 95-137, 96

27

F Viljoen „Reflections on the legal protection of indigenous peoples rights in Africa‟ in S Dersso (ed) Perspectives on the

rights of minorities and indigenous peoples in Africa (2010) 75-94, 77; GM Wachira „Vindicating indigenous peoples rights in

Kenya‟ (2008) LLD dissertation, University of Pretoria, 30

28

W Wilcomb & H Smith „Customary communities as „peoples‟ and their customary tenure as „culture‟: What we can do with the Endorois decision‟ (2011) 11 African Human Rights Law Journal 422; but see Communication 276/03, Centre for Minority

4

land rights based on a formal finding that a community is „indigenous‟ as inevitable. The preference, it is argued, must turn toward a pragmatic approach that emphasises the protection of land rights based on dependence upon and attachment to informally held land obtainable among many of the world‟s poorest and most vulnerable citizens, even if not indigenous.

29

Finally, along similar line of pragmatism, Bojosi argues that it is not yet clearly proven that the minority rights regime cannot generally achieve protection for sub-groups without resorting to the use of the term „indigenous‟ in Africa.

30

In all, the foregoing viewpoints signify that a case on the dependence on land for the survival of culture and lifestyle can be made by populations even if they do not strictly meet the requirements of the description envisaged for indigenous peoples under international human rights law.

Even if unintended, the foregoing viewpoints, in calling for a wider application of the concept of indigenous peoples, favour what can be termed an „inclusive approach‟ towards the construction and use of the term „indigenous peoples‟ which finds support in key instruments on climate change. Climate-related instruments use an inclusive terminology to accommodate and describe sub-national groups existing within countries that are culturally attached to land. Along with referring to some groups as „indigenous peoples‟, examples of phrases employed in climate- related instruments include „indigenous people‟, „indigenous communities‟, „indigenous populations‟, „tribal peoples‟, „forest dwellers‟, and „local communities‟.

31

For instance, the

United Nations Conference on Environment and Development (UNCED) prefers the description

„indigenous people and their communities.‟ 32

The foregoing sense of the use of the term in an inclusive manner is discernible in Agenda 21 which refers to „indigenous people and their communities.‟

33

As Viljoen explains, the word „people‟ refers to all human beings in an inclusive sense when used with a definite article „the‟, but „a people‟ and its plural form

Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) (Endorois case) 27th Activity

Report: June - November 2009 which remains a landslide regional case-law for the protection of indigenous peoples in Africa

29

RC Williams „The African Commission “Endorois Case” – Toward a global doctrine of customary tenure?‟ http://terra0nullius.wordpress.com/2010/02/17/the-african-commission-endorois-case-toward-a-global-doctrine-of-customarytenure/ (accessed 23 March 2012)

30

KN Bojosi „Towards an effective right of indigenous minorities to political participation in Africa‟ in S Dersso (ed)

Perspectives on the rights of minorities and indigenous peoples in Africa (2010) 294-296

31

Centre for International Environmental Law (CIEL) „REDD legal issues: Indigenous peoples and local communities „ http://www.conservation.org/Documents/Joint_Climate_Policy_Positions/Indigenous_Peoples_Local_Communities_REDDplus_

English.pdf (accessed 23 March 2012)

32

UN Doc. A/CONF.151/26 (vol. III), ch. 26; UN Doc. A/CONF.157/24 (Part I)

33

„Agenda 21‟ Ch. 26, http://www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.htm (accessed 20 March 2013)

5

„peoples‟ connote a restrictive scope suggesting territorial boundary or nationality.

34

Construed in this context, the word „indigenous people‟ as used in the instruments is more inclusive than

„indigenous peoples‟ who seek peculiar protection of their rights.

Although the United Nations Framework on Climate Change Convention (UNFCCC)

35

does not mention „indigenous people‟, „indigenous peoples‟ or „local communities‟, the decisions reached under the framework identify „indigenous peoples‟, „indigenous communities‟, or „local communities‟ as the focus of attention. For example, it is the case with the UNFCCC Conference of Parties (COP) 13, which, in its decisions, indicated, in the context of reducing emissions from deforestation and forest degradation in developing countries, that the needs of „local and indigenous communities‟ should be addressed.

36

Also, UNFCCC COP16 meeting in Cancun affirmed that the „respect for the knowledge and rights of indigenous peoples and members of local communities‟ is part of the safeguards which should be supported and promoted in implementing processes relating to the reduction of emissions from deforestation.

37

The use of terminology in a manner that encompasses a broader suite of sub-national groups is also visible in other legal instruments. The International Labour Organisation (ILO) Convention

169 applies to indigenous peoples and Tribal Communities.

38

There is no reference to

„indigenous peoples‟ under the Convention on Biological Diversity (CBD), 39

however, the phrase that is employed is „indigenous and local communities‟ embodying traditional lifestyles.

40

Without offering any definition, the „Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All

Types of Forests‟ uses the term „forest dwellers‟.

41

Also, the Working Group Report prefers

„indigenous populations/communities‟ and in that context refers to communities which are forest dwellers, such as the Batwas, as belonging to such groups.

42

34

F Viljoen International human rights law in Africa (2012) 219-220

35

United Nations Framework Convention on Climate Change (UNFCCC) (1992) ILM 851

36

UNFCCC „Reducing emissions from deforestation in developing countries: Approaches to stimulate action‟ (Decision

2/CP.13) FCCC/CP/2007/6/Add.1

37

UNFCCC „The Cancun Agreements: Outcome of the work of the Ad-hoc Working Group on Long-term Cooperative Action under the Convention‟ (Decision 1/CP.16 ) FCCC/CP/2010/7/Add.1

38

ILO Convention 169

39

The Convention on Biodiversity (CBD) (1992) 31 ILM 822

40

CBD, preamble and art 8(j)

41

„Non-legally binding instrument on all types of forests‟ A/C.2/62/L.5

42

Working Group Report (n 22 above)

6

In addition, the guidelines designed to support programmes relating to responses to climate change embody the description of groups in a wider sense. For instance, the Guidelines relating to effective stakeholder engagement in the context of the activities under the programme known as Reducing emissions from deforestation and forest degradation, and fostering conservation, sustainable management of forests, and enhancement of forest carbon stocks (REDD+),

43

focus on the participation of indigenous peoples and other forest-dependent communities.

44

Stakeholders national programme documents such as the REDD+ Readiness Proposal (R-PP), filed in relation to such activities, follow a similar pattern. Alleging, for instance, that the application of „indigenous peoples‟ may be controversial in Nigeria, the terminology, „forestdependent communities and other identified marginal or vulnerable groups‟, as well as „local communities‟ is used in the Nigeria R-PP.

45

The Zambia national programme document uses the words „indigenous peoples and other forest-dependent communities‟ without definition.

46

It can be argued that the foregoing development is not inconsistent with the view of the Working

Group on the notion of „indigenous peoples‟. This is because, although certain groups such as the pastoralists and hunter-gatherers are cited by the Working Group as representing a lifestyle which describes indigenous peoples, it indicates that the concept is still evolving and that the categories are not closed and may include other groups not mentioned in the report. In the words of the Working Group:

The examples provided in this report are by no means conclusive, but are meant to provide tangible content to what would otherwise be pure theory. Those identifying as indigenous peoples in Africa have different

43

Reducing Emissions from Deforestation and Forest Degradation (REDD+) is a mitigation initiative developed under the

UNFCCC. It does not only aim at deforestation and forest degradation, but also at incentivising conservation, sustainable management of forests and enhancement of forests as stock of carbons in developing countries; Bali Action Plan paragraph

1(b)(iii) of this decision is the basis for negotiations on REDD+. The „plus‟ refers to role of conservation, and enhancement of forest carbon stocks in developing countries; see Centre for International Environmental Law Know your rights related to

REDD+: A guide for indigenous and local community leaders (2014) 5; J Wllem den Besten, B Arts & P Verkooijen „The evolution of REDD+: An analysis of discursive institutional dynamics‟ (2014) 35 Environmental Science &Policy 40; see generally chapters 4 and 5 of this thesis where the initiative is examined in detail

44

Forest Carbon Partnership (FCP) & the United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (UN-REDD Programme) „Guidelines on Stakeholder Engagement in REDD+

Readiness With a Focus on the Participation of Indigenous Peoples and Other Forest-Dependent Communities‟ April 20, 2012

(revision of March 25th version)

45

Federal Republic of Nigeria „REDD+ readiness preparation proposal (R-PP)‟ dated November 2013 for consideration by Forest

Carbon Partnership Facility (FCPF) & UN-REDD Programme 16

46

Zambia „National Programme Document‟ 114

7

names, are tied to very differing geographical locations and find themselves with specific realities that have to be evoked for a comprehensive appreciation of their situation and issues

.

47

Jurisprudence from the Inter-American human rights system indicates that the concept of the

„indigenous peoples‟ does not necessarily exclude peoples with similar features who may not be indigenous. In Saramaka v Suriname,

48

the state contested the right to action of the Saramaka on the ground that they are not a tribal community for the purpose of recognising their collective rights. However, in coming to a conclusion that the Saramaka people make up a tribal community whose legal status is comparable with an indigenous identity, the Inter-American

Court of Human Rights noted:

The Court observes that the Saramaka people are not indigenous to the region they inhabit; they were instead brought to what is now known as Suriname during the colonization period (infra, para. 80). Therefore, they are asserting their rights as alleged tribal peoples, that is, not indigenous to the region, but that share similar characteristics with indigenous peoples, such as having social, cultural and economic traditions different from other sections of the national community, identifying themselves with their ancestral territories, and regulating themselves, at least partially, by their own norms, customs, and traditions.

49

Particularly, the Saramaka people exclusively based their case on the fact that they are forest- dependent, stressing the intricate connection they share with the forests. The Court relied on the the submission of one of the applicants during the public hearing which stressed that:

[t]he forest is like our market place; it is where we get our medicines, our medicinal plants. It is where we hunt to have meat to eat. The forest is truly our entire life. When our ancestors fled into the forest they did not carry anything with them. They learned how to live, what plants to eat, how to deal with subsistence needs once they got to the forest. It is our whole life.

50

Hence, in the light of the foregoing, there is a logical basis to view that with an inclusive approach, it is possible for groups which share indigenous peoples‟ cultural relationship with land to benefit from indigenous peoples‟ regime of rights, even if they are not indigenous.

However, the foregoing analysis may appear pragmatic as earlier mentioned, but must be treated with caution, particularly with the advent of climate change and related actions.There are reasons

47

Working Group Report (n 22 above) 15

48

Saramaka People v Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172 (Saramaka case)

49

Saramaka case (n 48 above) see generally paras 78-86, 79

50

Saramaka case (n 48 above) para 82

8

for this viewpoint. Foremost is that the inclusion of indigenous peoples along with a suite of subgroups may blur their identity and offer a basis for states to divert special obligations owed to indigenous peoples under international human rights law. Also, an inclusive approach, in calling for emphasis on cultural relevance and marginalisation, rather than the „indigenousness‟ of populations, may encourage a differential treatment of „indigenous populations‟, allowing one state in Africa to ignore or delay the claims of indigenous sub-groups with similar characteristics recognised and embraced elsewhere. For instance, such a differential approach will justify the behaviour of both South Africa, which calls for the protection of cultural communities in article

31(a) of its Constitution and taking efforts at addressing their land claims, and, on the other hand, sadly validate Rwanda‟s position that the Batwa are not indigenous but only a vulnerable minority group.

51

This difference in approach signifies that each state unilaterally can decide whether indigenous peoples exist for the purpose of protection of collective land rights under the

UNDRIP in its country or not. Such a political choice definitely is neither a true reflection nor the intended consequence of indigenous peoples‟ rights regime.

52

The use of the word „minority‟ to refer to peoples who self-identify as indigenous has an inclusive potential which may divert political attention away from core issues that are pertinent to the claims of this population, such as a collective claim to land tenure and use, compensation, and benefit-sharing in climate-related actions. These issues certainly are not covered under the minority rights regime. The minority rights regime, aside largely from recognising individual rights, does not specifically recognise claims relating to land which are at the heart of an indigenous peoples‟ rights regime.

53

Additionally, the minority platform is conceptually problematic as it focuses on numerical inferiority.

54

For instance, it is a framework that can be used in supporting claims of populations on other grounds beyond being national, ethnic, religious and linguistic minorities. As Kugelmann argues, it can accommodate foreigners living

51

See African Peer Review Mechanism Country Review Report of the Republic of Rwanda‟ (2005) para 153, which finds that this approach by government largely aims at assimilating the Batwas into the mainstream culture of the state of Rwanda

52

As part of its requirement on who is indigenous, the Working Group Report allows aspiring groups to „self-identify‟ not „stateidentify‟, see Working Group Report (n 22 above) 93

53

S Wiessner „Rights and status of indigenous peoples: A global comparative and international legal analysis‟ (1999) 12 Harvard

Human Rights Journal 57, 98

54

United Nations Subcommission on Prevention of Discrimination and Protection of Minorities, Study on the Rights of Persons

Belonging to Ethnic, Religious and Linguistic Minorities, 568, U.N. Doc. E/CN.4/Sub.2/384/Rev.1, U.N. Sales No. E.78.XIV.1

(1979)

9

in another state as refugees or asylum seekers.

55

As has also been argued, it can be employed in addressing the situations of populations who are discriminated against on other grounds, such as gender, disability or sexual orientation.

56

To be sure, while the concerns of indigenous peoples may overlap with the above grounds,

57

the essential basis for indigenous peoples‟ claim is their culturally distinct and historical linkage with land now subordinated, threatened, and, in some cases, totally destroyed by the dominant worldview of the modern state,

58

a trend that may be exacerbated by climate change.

Besides, the use of an inclusive approach indeed may be further exploited for the benefit and protection of the historical oppressors of indigenous peoples who may also be part of the groups considered as local, agrarian or rural populations in climate change discussions and literature on the subject. It may include these other populations in compensation and benefit-sharing which cannot be the intent and desire of indigenous peoples who crave and deserve a peculiar platform in which they can pursue „climate change justice‟ which is here used to entail the pursuit of judicial and non-judicial remedies in relation to the adverse impacts of climate change on indigenous peoples‟ cultural reliance on land and its resources. That this is not yet the case is evident in climate change negotiation which continues to discuss „climate change justice‟ in a strictly state-centric sense, referring to the principles of „intergenerational and intra-generational equities‟ which developing nations advance to bring developed nations into account for their historical and disproportionate contribution to the state of global climate.

59

The concept of

„climate change justice‟ is not engaged with emphasis on the clear distinction among populations to highlight special and differential obligations which states, whether developed or developing, hold toward their citizens. It is certainly not engaged in the sense of what vulnerable communities such as indigenous peoples can do to achieve accountability of states in the light of adverse impacts of climate change.

Yet, the merit in the claim of „climate change justice‟ for indigenous peoples should be seen in the above context. Indigenous peoples will be negatively impacted more than other populations

55

D Kugelmann „The protection of minorities and indigenous peoples respecting cultural diversity‟ (2007) 11 Max Planck

Yearbook of United Nations Law 233, 238

56

OHCHR „Minorities under international law‟ http://www.ohchr.org/EN/Issues/Minorities/Pages/internationallaw.aspx

(assessed 3 July 2014)

57

Kugelmann (n 55 above) 236

58

n 53 above; also see Hodgson (n 22 above) 25

59

EA Posner & CR Sunstein „Climate change justice‟ (2008) 96 The Georgetown Law Journal 1565

10

despite the fact that their activities are least responsible for the state of the climate. This is not only owing to its impacts on their environment but also, as shall soon manifest in the study, because global climate change response initiatives may lead to the expropriation of their land.

No doubt, addressing this effectively is difficult to achieve under a platform that fails to distinguish the peculiar claims of indigenous peoples from that of other populations. However, indigenous peoples‟ platform, considering its associated rights regime, addresses their peculiar claims effectively. This is in the sense that it affords indigenous peoples the opportunity to make a claim in their capacity and avoid the use of an inclusive term which may include for protection the authors, actors or representatives of their historical problem: the dispossession of their land.

60

This study employs the word „indigenous peoples‟ in the foregoing sense, bearing in mind the controversies surrounding its meaning and usage.

1.1.2 Overlapping issues? Climate change, environment, forests and indigenous peoples’ lands

The issues of „climate change‟, „environment‟ and „forests‟ in relation to indigenous peoples‟ lands, overlap. It is important to set the background for the usage of these words by explaining the link of climate change to their meanings.

Climate change refers to the long term weather condition of a region and its pattern of change over time. Underlying this change is the warming of the earth through the contribution of human emission to greenhouse gases which increases the greenhouse effect. Before the Industrial

Revolution, the natural status had been relatively stable for about 10,000 years.

61

The natural greenhouse effect allows for sunlight to warm the earth‟s surface and release the heat radiated by the earth.

62

However, the emergence of fossil fuel burning technology to support industry, automobiles and the energy demands of modern day, as well as other human related activities, such as large scale agricultural production, result in serious interference with the composition of

60

For a closer look at the concept of indigenous peoples within the meaning of intergenerational and intragenerational equities see, 83-89 of chapter 2 of this study; for a discussion on the link of indigenous peoples‟ lands with adverse impacts of climate change and how human rights can be used to address inadequate protection of indigenous peoples‟ land tenure and use in the light of adverse impacts of climate change, see respectively, chapters 3 and 6 of this study

61

HS Kheshgi, SJ Smith & JA Edmonds „Emissions and atmospheric CO2 stabilisation‟ (2005)10 Mitigation &Adaptation

Strategies for Global Change 213, 214; IPCC Summary for policymakers (n 2 above); Le Treut et al (n 4 above)

62

As above

11

the natural greenhouse effect.

63

The interference of human activities has brought about increase in greenhouse effect leading to global warming and change in climate condition.

64

However, it should be noted that the reality of climate change, for long, has been a hotly contested issue with climate change deniers outrightly refuting the existence of climate change or arguing, even if it exists, that it is a natural phenomenon and not due to human activity.

65

Notwithstanding this skepticism, there is no categorical official statement of any state denying its existence. Rather, what is clear is that the decisions of states through the institutions established under the aegis of the UNFCCC and the emerging resolutions of the United Nations Human

Rights Council (UNHRC), show that climate change is real and reflect a global trend towards acknowledging and addressing climate change as a challenge.

66

Indigenous peoples‟ lands is the main focus of this thesis, though they are entitled to the enjoyment, individually and collectively, all the rights guaranteed under their group specific instruments such as the ILO Convention 169,

67

the United Nations Declaration on the Rights of

Indigenous Peoples (UNDRIP), as complemented by other international human rights instruments.

68

This focus is because the land is fundamental to indigenous peoples‟ identity, livelihood and sustenance,

69

and critical to the enjoyment of every other right.

70

More importantly, the worldview of indigenous peoples in respect of their land accommodates the environment and forests; the latter is particularly true of forest-dependent communities.

Supporting this position, the ILO Convention 169 defines „land‟ as including „the concept of

63

Gore (n 1 above) 23-37; F Pearce „World lays odds on global catastrophe‟ (April 8 1995) New Science 4

64

J Hansen „Defusing the global warming time bomb‟ Scientific American Magazine March 2004 71

65

Greenpeace Dealing in doubt: The climate denial machine v climate science (2013)

66

On the scientific basis of climate change, the IPCC has produced five reports with the most recent released in 2014, see IPCC

Summary for policymakers (n 2 above); also, the United Nations Human Rights Council has passed at least four resolutions on the existence of climate change and link with human rights, these are namely, Human Rights Council „Human rights and climate change‟ Res. 7/23 of 28 March 2008, U.N. Doc. A/HRC/7/78 (Resolution 7/23), Human Rights Council Resolution 10/4, adopted at the 41st meeting, 25 March 2009 (Resolution 10/4), „Human rights and climate change‟ Resolution 18/22 of 17

October 2011, A/HRC/RES/18/22 (Resolution 18/22) and „Human rights and climate change‟ Resolution 26 of 23 June 2014,

A/HRC/26/L.33 (Resolution 26); and as far back as 1988, the United Nations General Assembly passed a resolution acknowledging climate change as a global challenge, see UNG.A. Res. 43/53 (n 2 above)

67

ILO Convention 169

68

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly on 13

September 2007; other instruments include, Universal Declaration on Human Rights (UDHR) 1948; International Covenant on

Civil and Political Rights, adopted 16 December 1966, entered into force 23 March 1976, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights, adopted by General Assembly resolution 2200A (XXI) of 16 December 1966, entered into force 3 January 1976

69

Daes (n 13 above) para 18; SJ Anaya Indigenous peoples in international law (2004)141; J Asiema & FDP Situma „Indigenous peoples and the environment: The case of the pastoral Massai of Kenya‟ (1994) 5 Colorado Journal of International

Environmental Law & Policy 150

70

Daes (n 13 above)

12

territories, which covers the total environment of the areas inhabited by indigenous peoples‟.

71

Hence, when indigenous peoples make claim to the protection of their land, it is often linked with an understanding that includes environment and resources. For instance, the case of the

Ogoni people in Social and Economic Rights Action Center (SERAC) and Center for Economic

and Social Rights (CESR) v Nigeria (Ogoniland case) hinges on the environmental degradation within their territories.

72

The Endorois community argued that displacement from their land offends their subsistence pastoral way of life.

73

An argument which confirms the viewpoint of

Alfreðsson and Ovsiouk that the environmental concerns of indigenous peoples are linked to their land and the natural resources, on the one hand‟ and their „identities, lifestyles and cultures on the other hand‟.

74

The intersection of forests with climate change is significant considering that, according to the

United Nations Environmental Programme (UNEP), 80 per cent of land containing forests is the traditional land and territories of indigenous peoples.

75

While the relationship of this with climate change will be examined more closely later in the study,

76

it is noteworthy that the most important greenhouse gas underlying climate change is carbon dioxide, which is attributable to fossil fuel burning and the change in the use of land. The drilling and consumption of crude oil and coal account for 77% of fossil fuel carbon dioxide emissions into the atmosphere.

77

Energy related human activities are not the only source of carbon emissions, forests, as a storehouse of carbon, play an important role in influencing the climate.

78

According to the discussions at the international level on climate change, a forest is defined as:

[A] minimum area of land of 0.05-1.0 hectares with tree crown cover (or equivalent stocking level) of more than 10-30 per cent with trees with the potential to reach a minimum height of 2-5 meters at maturity in situ.

A forest may consist either of closed forest formations where trees of various storeys and undergrowth cover

71

ILO Convention 169, art 13(2)

72

Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights

(CESR) v Nigeria (Ogoniland case)

73

Endorois case (n 28 above) paras 16, 123 and 248

74

G Alfreðsson & A Ovsiouk „Human rights and the environment‟ (1991) 60 Nordic Journal International Law 19, 24

75

EC Diaz „Climate change, forest conservation and indigenous peoples rights‟ Briefing paper http://www.cbd.int/doc/external/cop-09/gfc-climate-en.doc. (accessed 20 December 2013); see UNEP „Conclusion of the document‟ UNEP/GC.23/INF/23 4 November 2004 www.unep.org (accessed 20 December 2013)

76

See chapter 3 of this study

77

R Bierbaum et al „Confronting climate change: Avoiding the unmanageable and managing the unavoidable‟. Scientific Expert

Group Report on Climate Change and Sustainable Development Prepared for the 15th session of the Commission on Sustainable

Development http://www.whrc.org/news/pressroom/pdf/SEG_Report.pdf.(accessed 4 July 2014)

78

C Streck & S Scholz „The role of forests in global climate change: whence we come and where we go‟ (2006) 82 International

Affairs 861

13

a high proportion of the ground or open forest. Young natural stands and all plantations which have yet to reach a crown density of 10-30 per cent or tree height of 2-5 meters are included under forest, as are areas normally forming part of the forest area which are temporarily unstocked as a result of human intervention such as harvesting or natural causes but which are expected to revert to forest.

79

From this definition, when a forest is cleared, evidence shows that it releases stored carbon into the atmosphere and thus becomes a source of greenhouse gas emissions.

80

The clearance of forests, or deforestation, is associated with human activities, including agriculture, mining, and logging.

81

By contrast, when forests are restored, they remove carbon from the atmosphere.

82

This thus signifies that forests can add to the problem of climate change, or constitute a means of mitigating it.

83

Indigenous peoples‟ lands is connected to this situation because actions related to climate change such as oil drilling, mining, and large scale agricultural practices often implicate their land. There are changes which they experience to the remaining land which they occupy which put beyond question the reality of the adverse impacts of climate change on their land.

84

This signifies that the discussions around the solution to the crisis of climate change will affect in several forms the relationship of indigenous peoples with their land. As Daes observes:

Indigenous peoples have a distinctive and profound spiritual and material relationship with their lands and with the air, waters, coastal sea, ice, flora, fauna and other resources. This relationship has various social, cultural, spiritual, economic and political dimensions and responsibilities.

85

Considering the centrality of land and its resources to the lifestyle of indigenous peoples which are now threatened by climate change, as negotiations continue on the subject of climate change,

79

UNFCCC CP „Annex: Definitions, modalities, rules and guidelines relating to land use, land-use change and forestry activities under the Kyoto Protocol‟ FCCC/CP/2001/L.11/Rev.1; this definition is also largely adopted by the Food and

Agricultural Organisation, see, Food and Agriculture Organisation of the United Nations, Global forest resources assessment

2000: Main report (2000)

80

G Bala et al „Combined climate and carbon cycle effects of large scale deforestation‟ (2007) 104 Proceedings of the National

Academy of Sciences of the United States of America 6550; Gorte & Sheikh (n 7 above); Helmut & Lambin (n 7 above)

81

IWGIA „Land rights and indigenous peoples‟ http://www.iwgia.org/environment-and-development/land-rights (accessed 20

December 2013)

82

UNFCCC „Land use, land-use change and forestry‟ http://unfccc.int/methods/lulucf/items/4122.php (Accessed 20 December

2013)

83

Streck & Scholz ( n 78 above)

84

HS Elvarsdóttir „Climate change and human rights: The implications that climate change has on the human rights of the Inupiat in Barrow, Alaska‟ Master‟s degree thesis submitted as part of studies for the LLM degree in Polar Law studies, February 2010 where the author makes similar point about the environment of the Inuit in Alaska

85

EA Daes „Indigenous peoples and their relationship to land‟ E/CN.4/Sub.2/2001/21 para 121

14

the protection of their lands, inclusive of the forest resources, will be crucial in the discussion of the adverse impacts of climate change and the regulatory framework in response.

86

1.1.3 Intersecting governance: Defining a climate change regulatory framework

Since it is a key component of this study, it is necessary to explain what is meant by a „climate change regulatory framework‟. The term is used in the context of climate change „governance‟.

Scholars use the word „governance‟ in relation to the environmental field interchangeably with phrases such as „architecture‟, and „regime‟. Definitions have been proffered along this line.

Generally, according to Le Preste, „governance‟ connotes either „architecture‟ or „regime‟ and refers to:

A set of interrelated norms, rules and procedures that structure the behaviour and relations of international actors so as to reduce the uncertainties that they face and facilitate the pursuit of a common interest in a given area of issue

.

87

Governance has been explained as entailing the institutions, norms, mechanisms and decision- making procedures.

88

Deere-Birkbeck defines climate change governance as referring to the processes, traditions, institutional arrangements and legal regimes through which authority is exercised, and decisions taken at the global level for implementation. In the author‟s further view, these arrangements may be formal, involving interaction among governments, or informal, requiring the relations of a range of stakeholders with or without direct involvement of government.

89

In agreeing with this description, Thompson et al note that governance connotes structures, arguably institutional and policy, through which decisions are made and resources are managed.

90

This structure, in the view of den Besten et al, may be shaped by various actors and groups with which it interacts in negotiation.

91

What is certain is that all the definitions agree that

86

Rights and Resources Initiative What future reform? Progress and slowdown in forest tenure reform since 2002 (2014) 9; EN

Ajani et al „Indigenous knowledge as a strategy for climate change adaptation among farmers in Sub-saharan Africa:

Implications for policy‟(2013) 2 Asian Journal of Agricultural Extension, Economics & Sociology 23-40; KG McLean Advanced

guards: Climate change impacts, adaptation, mitigation and indigenous peoples- A compendium of case studies (2010) 56; J

Woodke The impact of climate change on nomadic people (2008)

87

Cited in MC Smouts „The issue of an international forest regime‟ (2008) 10 International Forestry Review 429-432

88

F Biermann et al „Navigating the anthropocene: The earth system governance project strategy paper` (2010) 2 Current Opinion

in Environmental Sustainability 202

89

C Deere-Birkbeck „Global governance in the context of climate change: The challenges of increasingly complex risk parameters‟ (2009) 85 International Affairs 1173-1194

90

MC Thompson et al „Seeing REDD+ as a project of environmental governance‟(2011) 14 Environmental Science & Policy

100

91

Willem den Besten et al (n 43 above) 40

15

governance is made up of rules and institutions,

92

and that the state is the focus. According to

Conca:

The state is both the subject and the object of most environmental regimes. National governments as agents of states are taken as authoritative subjects of regimes, their bargaining, concurrence and ratification determine whether a legitimate regime exists, and they assume responsibility for compliance. States are also the primary objects of regimes, governmental compliance is the presumed key to regime effectiveness, and governmental implementation is the regime‟s primary task as a means to that end.

93

However, it is not certain or appropriate whether to refer to the instruments underlying and emanating from climate governance as a set of law or policy. This uncertainty will remain problematic even though there are negotiations under the Durban platform of a new international agreement to be completed by 2015 and binding on all parties in 2020.

94

Some scholars largely reflect an uncritical use of the term „law‟ in referring to climate instruments,

95

others show a preference for usage of „policy‟.

96

There is merit and confusion in both approaches. On one hand, it can be argued that referring to these instruments as laws is legitimate considering that the

Kyoto Protocol seeks to have a binding effect.

97

The use of „law‟ connotes a detailed legislative process and judicial enforcement in courts.

98

Also, the negotiation of a future treaty by 2015 suggests that the use of the term „law‟ to describe emerging instruments in climate change negotiation is not out of order. Nonetheless, the challenge in relation to an instrument such as the

Kyoto Protocol lies with its compliance which is largely facilitative or consensual and has no adversarial or confrontational means of enforcement, except for the provision emphasising recourse to the International Court of Justice (ICJ) where negotiation fails as a means of

92

E Corbera & H Schroeder „Governing and implementing REDD+‟ (2011) 14 Environmental Science & Policy 89-99; O

Young „International regimes: Toward a theory of institutions‟ (1986) 39 World Politics 104; RO Keohane „The demand for international regimes‟ (1982) 36 International Organisation 325

93

K Conca „Old states in new bottles? The hybridization of authority in global environmental governance‟ in J Barry &R

Eckersley (eds) The state and the global ecological crisis (2005) 181-206

94

Conference of the Parties 17th session, Durban, 28 November to 9 December 2011, Establishment of an Ad Hoc Working

Group on the Durban Platform for Enhanced Action, FCCC/CP/2011/L.10, para 5

95

See Wold et al (n 1 above)

96

B Maripe „Development and the balancing of interests in environmental law: The case of Botswana‟ in M Faure & Willemien du Plessis (eds) The balancing of interests in environmental law in Africa (2011) 58-59

97

The Kyoto Protocol commits parties to internationally binding emission reduction targets, see UNFCCC „Kyoto Protocol‟ http://unfccc.int/kyoto_protocol/items/2830.php (accessed 20 December 2013); Kyoto Protocol was adopted under art 17 of the

UNFCCC, and entered into force on 16 February 2005. Presently, 50 African countries are parties to the Kyoto Protocol http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php (accessed 24 February 2014)

98

D Kennedy „The disciplines of international law and policy‟ (1999) 12 Leiden Journal of International Law 9

16

resolving a dispute.

99

Also, even if the future instrument under negotiation by 2015 assumes an adversarial form in terms of its implementation, there are still decisions from yearly meetings of

Conference of Parties (COP)/ Meeting of Parties (MOP) under the Kyoto Protocol and other institutions in the climate change regime, which, though not laws, form part of climate change instruments.

Similarly, the choice for „policy‟ as a general description of the instruments appears plausible, considering that there is a plethora of decisions emanating from the COP/MOP and other organs which seek to generally set out a course of action or strategy to „influence or determine decisions, actions or other matters‟.

100

Seen from the angle that the decisions are meant to influence and guide actions on climate change, there is a basis for referring to these instruments as policies, and not as laws, which embody judicial enforcement as their primary and core element.

101

Yet, solely referring to climate change as a policy issue flies in the face of instruments such as the Kyoto Protocol and the future treaty, which is expected to have the binding effect of law. What is fair, as an appropriate approach, is that the choice and use of the term „law‟ or „policy‟ are not mutually exclusive, both validly can be accommodated as belonging to the emerging framework of instruments set to govern global efforts at finding a solution.

Therefore, it is in the light of the foregoing that the words „regulatory framework‟ are preferred in this study to refer to decisions, laws, policies, guidelines, agreements and process related documents that are the outcome of climate change negotiations at different levels in response to the adverse impacts of climate change. The reason for the preference of „regulatory framework‟ derives from the meaning of the word „regulation‟ which, arguably, accommodates „laws‟ and

„policies‟. According to the Black Law Dictionary, a regulation is „the act or process of controlling by rule or restricton‟, or „a rule or order, having legal force‟.

102

It further defines a

„rule‟ as a „stardard or principle, a general norm mandating or guiding conduct or action in a given type of situation‟

103

, and an „order‟ as „a common direction or instruction‟ or „a written

99

G Ulfstein & J Werksman „The Kyoto compliance system: Towards hard enforcement‟ in OS Stooke, J Hovi & G Ulfstein

Implementing the climate regime: International compliance (2005) 39-62

100

On the definition of policy, see http://www.thefreedictionary.com/policy (accessed 14 April 2014)

101

n 98 above

102

103

Black‟s Law Dictionary Seventh edition (1999) 1289

Black‟s Law Dictionary Seventh edition (1999) 1330

17

direction or command delivered by a court or judge‟.

104

Since an important feature of „policies‟ lies in its non-binding nature, the definition of a „regulation‟ accommodates instruments such as,

„policies‟, „guidelines‟ and other documents which, though proceed from a legally established body, may necessarily not have binding force of a law. Equally, since a „regulation‟ connotes a sense of „legal‟ or „judicial‟ force, through its link with a „rule‟ and „order‟, which aims to

„control‟ and „restrict‟ conducts, the argument can be made that the word „regulation‟ embodies instruments with binding effect in diferrent tiers of climate change decision-making.

The development of climate change regulatory framework occurs in different tiers of governance. Dunnof identifies different levels, namely, local, national, regional and international policy responsibility over environmental challenges.

105

In the author‟s view, the magnitude of the environmental challenge presents the basis for moving its governance from „a sub-national to national or from a national to a regional or from a regional to an international level‟.

106

The approach in the climate change negotiation adopts environmental governance structure in that the

UNFCCC views climate change as a global challenge and encourages state parties to initiate efforts aimed at addressing it at international, regional, sub-regional and national levels.

107

This suggests that the term „international‟ as used in climate change rule-making process mainly refers to the activities at the United Nations level in relation to climate change, as distinguishable from activities at the regional and sub-regional levels. In what seems as an acceptance by literature that these tiers are distinct and can be used as a basis for an investigation of climate change governance, writers have examined domestic climate change regulations against the backdrop of the development at the supra-national levels.

108

It is noteworthy that the foregoing approach, particularly, in distinguishing between international, regional, sub-regional and national levels of governance, differs from the preferred classification in literature on the evolvement of international human rights law. For instance,

Viljoen argues that while international human rights law has evolved at the global, regional and

104

Black‟s Law Dictionary Seventh edition (1999) 1123

105

JL Dunnof „Levels of environmental governance‟ in D Bodansky et al (eds) The Oxford handbook of international

environmental law (2007) 87

106

As above

107

UNFCCC, preamble, arts 4(1), 6(a) & (b)

108

S Pasternack„Local climate change law and multi-level governance in North America‟ in BJ Richardson (ed) Local climate

change law: Environmental regulation in cities and other localities (2012) 69-104; HM Osofsky „Suburban climate change efforts in Minnesota: Implications for multi-level mitigation strategies‟ in BJ Richardson (ed) Local climate change law:

Environmental regulation in cities and other localities (2012) 105-133

18

subregional, regional, and national levels, viewed from the perspective of nation states, the global, regional and subregional tiers comprise international level.

109

This assumes that whatever governance is beyond national is international, meaning that, in reality, these are the only two levels of evolvement. Validly, the reasoning can be used in concluding that climate change regulatory framework outside the domestic level is „international‟ since it involves interaction among nation states. However, in terms of the development in climate change negotiation, classifying global, regional and subregional tiers as belonging to „international level‟ is problematic as it may obscure the distint development at different levels. For instance, while regional human rights instruments and some national constitutions guarantee the right to a healthy environment, such right does not exist in any United Nations treaty, a development that shows the peculiar nature of each level of governance. Also, the argument that classifies any development outside the State as „international‟ does not dismiss the self-evident reality that even if „international‟, the regional and sub-regional tiers are separate and autonomous on their own as creations of distinct laws with distinct institutions.

This study engages with the climate change governance framework at the international, regional and national levels in examining human rights implications of climate change regulatory framework on indigenous peoples‟ lands in Africa.

110

Adopting this classification is preferred in that, as mentioned earlier, it is recognised under climate change pillar instruments, particularly the UNFCCC. More importantly, it serves as a convenient platform to analyse as far as possible, the extent of protection available to indigenous peoples‟ relationship with their lands under different levels of governance.

1.2 Study thesis

The thesis demonstrates that the climate change regulatory framework does not adequately address the adverse impacts of climate change and response measures on indigenous peoples‟ lands. It then argues how a human rights concept can be employed in Africa as a regional response to address this lack.

109

Viljoen (n 34 above) 9

110

Sub-regional is left out of the discussion because events here are still fluid and nothing concrete has emerged so far in form of regulatory framework

19

1.3 Problem statement

Climate change has negative consequences for indigenous peoples‟ lands and resources. While not peculiar to indigenous peoples‟, a lifestyle intricately linked to the land makes their case a priority.

111

In the light of the adverse impacts of climate change, indigenous peoples in Africa are unable to support the unique land use and tenure system peculiar to their lifestyle, a trend which portrays the historical subordination of their land tenure and use which remains largely formalised in the legislation of states.

112

Despite this situation, the regulatory framework at the international, national and regional levels in response to the adverse impacts of climate change does not adequately safeguard indigenous peoples‟ land tenure and use in Africa.

113

This situation raises concern about the realisation of their lands and related rights, but, as yet, it has not been examined or explored how human rights can be engaged to address the challenge.

1.4 Objective of the study

In the light of the foregoing, the objective of the study is to investigate whether, in view of adverse climate change impacts, the climate change regulatory framework adequately safeguards indigenous peoples‟ lands, and if not, to explore how a human rights concept can be employed in Africa as a regional response.

1.5 Research questions

Toward realising the above objective, the study addresses the following specific questions:

1. What is the link between human rights and climate change?

2. What is the notion of the land rights of indigenous peoples and how are these rights adversely affected by climate change in Africa?

3. To what extent does the international climate change regulatory framework protect indigenous peoples‟ land tenure and use?

111

Abate & Kronk (n 14 above)

112

For a detailed discussion of this, see chapter 3

113

For a detailed discussion of the gap at the international and national levels in relation to protection of indigenous peoples‟ lands, see chapters 5 and 6

20

4. Do national climate change regulatory frameworks address indigenous peoples‟ land tenure and use in Africa?

5. How can human rights concept be explored as a regional response in Africa to address the gap in the climate change regulatory framework in relation to indigenous peoples‟ land rights?

1.6 Assumptions

This study proceeds on the following assumptions:

1. Indigenous peoples‟ land rights are recognised under international human rights law.

2. With regard to indigenous peoples and their land rights, climate change response measures can be beneficial if effectively implemented.

3. African regional human rights system recognises the protection of indigenous peoples and their land rights.

1.7 Research methods

The study employs a desk research analysis which reviews scholars‟ writings, statutes, treaties, guidelines, decisions, case-law and constitutions. The outcome of analysis is validated by interactions in stakeholders‟ fora relating to climate change held in Cape Town, South Africa, the

United States, Namibia and Geneva, Switzerland.

114

The websites of UN-REDD programme and the UNFCCC were consulted for the selection of states used as case studies. All states in Africa have adaptation challenges, however, the fact that climate response projects, particularly the mitigation measure of REDD+ under the UN-REDD programme are taking place in only few but are steadily increasing in African states, excludes from this study other states in Africa which are not under the programme. Nigeria, Tanzania and

114

„Consultation on climate change and human rights‟ Convened by the United Nations Independent Expert on Human Rights and the Environment, the Friedrich-Ebert Stiftung (FES) and the Office of the High Commissioner for Human Rights (OHCHR),

Chamonix, Geneva and France 15-17 July 2014; „Technical Workshop on Gender and REDD+ learning exchange‟, 13-15 May

2014, Washington, DC; UNFCCC „Africa Regional Workshop for Designated National Authorities‟ 30 June-4 July 2014,

Windhoek, Namibia; Natural Justice „Rights-based REDD+ dialogue II: Realizing REDD+ safeguards‟, 18-19 October 2013,

Cape Town, South Africa

21

Zambia are selected as case studies to demonstrate a trend in the national regulatory framework on adaptation and REDD+ processes, a mitigation initiative, in relation to the protection of indigenous peoples‟ land tenure and use in Africa. The selection is based on criteria, namely, language expediency, geography and interest.

In Africa, states with national programmes under the UN-REDD programme for REDD+ are

Côte d‟Ivoire, the Republic of Congo, the Democratic Republic of Congo (DRC), Nigeria, the

United Republic of Tanzania and Zambia.

115

Due to the scanty understanding of the investigator of the French language, the regulatory framework of the DRC, Côte d‟Ivoire, and the Republic of

Congo are not included as case studies. While the study may benefit from the development in these countries, the fact that its focus is on the analysis of regulatory framework suggests that findings of the study can also be useful in guiding the approach in these states and other states in

Africa.

The selected states reflect different geopolitical zones, at least in sub-Saharan Africa: Nigeria

(West Africa), Tanzania (East Africa), and Zambia (Southern Africa). Finally, the selection of case studies is based on personal interest and familiarity with Nigeria as the country of my origin, Zambia, as a country of origin of my supervisor and Tanzania, because of the considerable presence of indigenous peoples.

116

1.8 Literature review

The subject of climate change, like a beautiful damsel, has been courted by different disciplines.

Its theoretical basis varies from pure science to other fields of study including politics, security, international relations, environmental law and economics as well as the field of human rights.

115

However, technical supports are given to programmes in Benin, Cameroon, the Central African Republic, Côte d'Ivoire,

Ethiopia, Ghana, Kenya, Madagascar, Morocco, South Sudan, the Sudan, Tunisia and Uganda, see UN-REDD „Partner countries‟ http://www.un-redd.org/AfricaRegionalActivities/tabid/131890/Default.aspx (accessed 14 April 2013)

116

See, „Combined initial, 2nd and 3rd periodic reports of the United Republic of Tanzania submitted to the International

Covenant on Economic, Social and Cultural Rights (UN doc E/C.12/TZA/1-3, 28 March 2011) at the occasion of the 48th session of the Committee on Economic Social and Cultural Rights‟ http://www.tanzaniapastoralist.org/uploads/1/0/2/7/10277102/shadow_report_iphg_tanzania49.pdf. (accessed 13 December

2013) affirming that Tanzania is home to more than 70,000 Maasai and other indigenous groups including the Barbaig, Akie,

Taturu and Hadzabe 9, 19

22

The Working Group 1 contributions to the Assessment Reports of the IPCC put the scientific and factual basis of climate change beyond doubt.

117

The interplay of population growth and need for political responsibility over environmental issues is the thrust of the contribution of Erlich,

118

Hardin,

119

and Catton.

120

Several scholars have examined climate change as a human security issue.

121

There is increasing literature devoted to understanding states‟ behaviour through the application of several theories of international relations to climate change.

122

There is general literature dealing with climate change in the context of Africa.

123

Also, there are writings on the direct and indirect impacts of climate change as they affect indigenous peoples.

124

Generally, existing literature on environmental law sheds light on principles which are considered relevant to addressing the adverse impacts of climate change. For instance, it explains the „polluters pay principle‟

125

which underlies emission trading introduced under the climate change regime to deal with climate change concerns.

126

Other environmental law principles

117

IPCC Summary for policymakers (n 2 above); RT Watson et al „Greenhouse gases and aerosols‟ in JT Houghton, GJ Jenkins

& JJ Ephraums (eds) Scientific assessment of climate change (1990) 1-34; KE Trenberth, JT Houghton & LG Meira Filho „The climate system: An overview‟ in JT Houghton et al (eds) Climate change;1995:The science of climate change: Contribution of

WGI to the Second Assessment Report (1995) 55-63; APM Baede, E Ahlonsou, Y Ding & D Schimel „The climate system: An overview‟ in JT Houghton et al Climate change 2001: The scientific basis contribution of Working Group I to the 3rd

Assessment Report of the Intergovernmental Panel on Climate Change (2001) 87-98; Le Treut et al (n 4 above) 95-121

118

PR Ehrlich & AH Ehrlich „The population bomb revisited‟ (2009) 1 Electronic Journal of Sustainable Development 63

119

G Hardin 'The tragedy of the commons‟ (1968) 162 Science 1243

120

W Catton Overshoot: The ecological basis of revolutionary change (1982)

121

J Barnett „Security and climate change‟ (2003) 13 Global Environmental Change 7; D Kuwali „From the west to the rest:

Climate change as a challenge to human security in Africa‟(2008) 17 African Security Review 20

122

F Weiler „Global climate change and leadership: The role of major players in finding solutions to common problems‟ (2010)

13 Journal of International Affairs; RO Keohane & DG Victor The regime complex for climate change (2010); D Bodansky „The

Copenhagen climate change conference: A post-mortem‟ (April, 2010) 104 The American Journal of International Law 230

123

C Toulmin Climate change in Africa (2009); Collier (n 1 above)

124

The distinction along direct and indirect categorisation in relation to adverse impacts of climate change is employed in

Resolution 10/4 (n 66 above) and Resolution 26 (n 66 above); on the discussion relating to impact of climate change particularly its mitigation measures on indigenous peoples, see „Climate change, human rights and indigenous peoples‟ submission to the

United Nations High Commissioner on Human Rights by the International Indian Treaty Council (IITC Submission); „Climate change, forest conservation and indigenous peoples rights‟ submission by Global Forest People, (GFP submission ) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Global_Forest_Coalition_Indigenous_Peoples_ClimateCh ange.pdf (accessed 26 October 2012) ; „Report on the impacts of climate change mitigation measures on indigenous peoples on their territories and lands‟ E/C 19/2008/10 (Unedited version) (Indigenous peoples climate change mitigation report); Greenpeace

Briefing „Human rights and the climate crisis: Acting today to prevent tragedy tomorrow (Greenpeace report) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Greenpeace_HR_ClimateCrisis.pdf (accessed 27 October

2012)

125

JB Wiener „Global environmental regulation: Instrument choice in legal context‟ (1999) 108 Yale Law Journal 677; see also

Rio Declaration, principle 16

126

Kyoto Protocol, art 17; D Tladi Sustainable development in International law: An analysis of key enviro-economic instruments

(2007)15

23

which scholars have engaged with include the „precautionary principle‟,

127

„common but differentiated responsibilities principle‟, 128

and sustainable development.

129

Similarly, there are arguments supporting the need to promote the interaction of biodiversity law and climate change as the human rights-based approach to climate change.

130

Other scholars see no need for such synergy as they argue that the human rights field is connected to the climate change field on the assumption that the underlying „human source‟ of climate change is a strong point supporting the resort to human rights.

131

Drawing a factual link between human rights and the environment, Alfreðsson and Ovsiouk argue that the victims and actors of a human made environmental crisis are similar to those present in the human rights field.

132

Hence, it is not surprising that Amizadeh argues that as human rights is the best legal response to issues such as slavery and apartheid, it may well be the strongest argument of law in addressing climate change.

133

This position appears defensible. There are human rights instruments,

134

reports,

135 and scholarly writings which can be considered in addressing climate change and its negative impacts.

136

This position is buttressed further by the fact that key environmental instruments

127

M Haritz „Liability with and liability from the precautionary principle in climate change cases‟ in M Faure & M Peeters (eds)

Climate change liability (2011) 15-32; D Freestone & E Hey „Origins and development of the precautionary principle‟ in D

Freestone & E Hey (eds) The precautionary principle and international law: The challenges of implementation (1996) 3; see also Rio Declaration, principle 15

128

Rajamani (n 5 above)

129

S Imran, K Alam & N Beaumont „Reinterpreting the definition of sustainable development for a more ecocentric reorientation sustainable development‟ (2011) 22 Sustainable Development 1; JA Vucetich & MP Nelson „Sustainability: Virtuous or vulgar?‟

(2010) 60 BioScience 539; K Bosselmann „Losing the forest for the trees: environmental reductionism in the Law‟ (2010) 2

Sustainability 2424, 2426; L Seghezzo „The five dimensions of sustainability‟ (2009) 18 Environmental Politics 539

130

E Morgera „No need to reinvent the wheel for a human rights-based approach to tackling climate change: The contribution of international biodiversity law‟ (2012) University of Edinburgh School of Law Research Paper Series, no 2012/15

131

M Robison „Foreword‟ in S Humphreys (ed) Human rights and climate change (2010) xvii; W Sachs „Human rights and climate change‟(2006) 106 Pontificate Academiae Scientiarvm 349

132

G Alfreðsson & A Ovsiouk „Human rights and the environment‟ (1991) 60 Nordic Journal International Law 19, 20

133

SC Aminzadeh „A moral imperative: The human rights implications of climate change‟ (2007) 39 Hastings International &

Comparative Law Review 231, 234

134

Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly in Paris on 10 December 1948,

General Assembly resolution 217 A (III); International Covenant on Economic, Social and Cultural Rights, adopted by General

Assembly resolution 2200A (XXI); International Covenant on Civil and Political Rights (ICCPR), adopted by General Assembly resolution 2200A (XXI) of 16 December 1966; International Convention on the Elimination of All Forms of Racial

Discrimination, adopted by General Assembly resolution 2106 (XX) of 21 December 1965; UNHRC Resolutions on the right to adequate housing, UNHRC Res. 6/27, U.N. Doc. A/HRC/6/22 (14 April 2008); also see resolutions passed by Human Rights

Council namely Resolution 7/23 (n 66 above), Resolution 10/4 (n 66 above), Resolution 18/22 (n 66 above) and Resolution 26 (n

66 above)

135

S McInerney-Lankford, M Darrow & L Rajamani „Human rights and climate change: A review of the international legal dimensions‟ (2011); „Report of the Office of the UN High Commissioner for Human Rights on the relationship between human rights and climate change‟, U.N. Doc. A/HRC/10/61 ( 15 January 2009)

136

JH Knox „Linking human rights and climate change at the United Nations‟ (2009) 33 Harvard Environmental Law Review

478; D Bodansky „Introduction: Climate change and human rights: Unpacking the issues‟ (2010) 38 Georgia Journal of

International & Comparative Law 511, 516; S Kravchenko „Right to carbon or right to life: Human rights approaches to climate change‟ (2008) 9 Vermont Journal of Environmental law 514

24

make reference to human rights.

137

In further justifying the conceptualisation of climate change through human rights, writers have based their arguments on the limitations of environmental law in areas such as a lack of language of obligations, a weak compliance and accountability mechanism,

138

the unsettled status of environmental law principles such as „precautionary‟ principle,

139

and the „do no harm‟ principle.

140

More importantly, it has been argued that the declarations and principles of environmental law are not binding and, therefore, cannot be elevated or become a substitute for an international human rights to the environment.

141

By contrast, there are authors who reveal the weaknesses in applying a human rights concept to environmental protection: some particularly highlight its limitation in terms of its anthropocentric (human interest) focus,

142

and challenge its use in litigating climate change, regarding notions such as „causation‟, „extra-territoriality‟ and „sovereignty‟ as problematic.

143

Also, according to Adelman, climate change issues cut wide across a range of rights and „do not fit neatly into any single category of human rights‟.

144

In addition to the scanty literature on the conceptualisation of climate change using human rights in Africa,

145

there is a conceptual detachment from environmental principles in the existing literature applying human rights to climate change. Generally, scholarship does not consider the intersection of human rights with environmental law principles as a justification for employing human rights in assessing the

137

Stockholm Declaration, principle 1; Rio Declaration, principle 1; Forest Principles, preambles; see M Pallemaerts

„International environmental law: From Stockholm to Rio- Back to the future?‟ in P Sands (ed) Greening international law

(1993) 8-12

138

Kravchenko (n 136 above) 514-45

139

In Nuclear Tests (New Zealand v France) 1995 ICJ 288, 342 (September 22), ICJ dismissed New Zealand‟s claims without ruling on this issue. Dissenting, Justice Weeramantry argued that the precautionary principle is „gaining increasing support as part of the international law of the environment‟ 307-42; UNFCCC, art 3

140

Stockholm Declaration, principle 21; Rio Declaration, principle 2

141

EA Posner „Climate change and international human rights litigation: A critical appraisal‟ (2007) 155 University of

Pennsylvania Law Review (2007) 1925-45 ; S Atapattu „The right to a heathy life or the right to die polluted?: The emergence of a human right to a healthy environment under international law (2002) 16 Tulane Environmental Law Journal 65, 74-78

142

D Bodansky „Customary (And not so customary) International Environmental Law‟ (1995) 3 Indiana Journal of Legal Studies

116; Imran et al (n 129 above); Vucetich (n 129 above); Seghezzo (n 129 above); Bosselmann (n 129 above); A Boyle „Human rights or environmental rights? A reassessment‟ (2007) 18 Fordham Environmental Law Review 471

143

A Gouritin „Potential liability of European states under the ECHR for failure to take appropriate measures with a view to adaptation to climate change‟ in M Faure & M Peeters (eds) Climate change liability (2011) 134-152; Shi-Ling Hsu „A realistic evaluation of climate change litigation through the lens of a hypothetical lawsuit‟ (2008) 79 University of Colorado Law Review

101; EA Posner „Climate change and international human rights litigation: A critical appraisal‟ (2007) 155 University of

Pennsylvania Law Review (2007) 1925; J Gupta „Legal steps outside the Climate Convention: Litigation as a tool to address climate change‟ (2007) 16 RECIEL 76; M Allen „Liability for climate change: Will it ever be possible to sue anyone for damaging the climate?‟ (2003) 421Commentary in Nature 891

144

S Adelman „Rethinking human rights: The impact of climate change on the dominant discourse‟ in S Humphreys (ed) Human

rights and climate change (2010) 169

145

The exception to this is R Mwebaza „Climate change and the international human rights framework in Africa‟ in R Mwebaza

& LJ Kotze (eds) Environmental governance and climate change in Africa: Legal perspectives (2009) 240

25

climate change regulatory framework in relation to its protection of indigenous peoples‟ land rights. Rather, existing literature reinforces Wood‟s concern about the „substantial exclusion of environmental issues from most human rights theory‟.

146

Hence, a preliminary focus of this thesis is to examine the conceptual basis or framework for applying human rights to the subject of climate change.

There is ample literature on indigenous peoples‟ land rights and the need for their protection, particularly in Africa.

147

The essentials with respect to the land rights of indigenous peoples have been highlighted as being collective and informal in nature.

148

Literature has shown that international law has played a critical role in subordinating indigenous peoples‟ land rights everywhere, including Africa, and has demonstrated the extent to which human rights have remedied this historical injustice. This situation is evident from the negotiations of the UNDRIP and the general application of human rights instruments embodying provisions and jurisprudence on compensation, benefit-sharing, participation and the protection of land rights at the core of the claim of indigenous peoples to environmental justice.

149

However, in the literature the link between the notion of indigenous peoples‟ land rights in Africa and the adverse effects of climate change is less clear.

In response to the adverse effects of climate change, writers agree that considering its nature as a global challenge, the regulatory framework to address the adverse effects of climate change has been top-down, focusing on adaptation and mitigation at the international level for application at the domestic level.

150

There has been a general examination by scholars of the interaction between the national regulatory framework and supra national regulatory governance of climate change.

151

There have been specific writings on the governance of international adaptation

146

K Woods Human rights and environmental sustainability (2010) 3

147

AK Barume Land rights of indigenous peoples in Africa: With special focus on central, eastern, and southern Africa (2010)

66-70; Daes (n 13 above); R Hitchcock R & D Vinding „Indigenous peoples‟ rights in Southern Africa: An introduction‟ in R

Hitchcock R & D Vinding (ed) Indigenous peoples rights in Southern Africa (2004); M Hansungunle „Dual land tenure in

Zambia & implications‟ (on file with the author)

148

As above

149

J Gilbert & G Couillard „International law and land rights in Africa: The shift from states‟ territorial possessions to indigenous peoples‟ ownership rights‟ in R Home (ed) Essays in African Land Law (2011) 48; Anaya (n 19 above); L Westra Environmenal

justice and the rights of unborn and future generations (2006) 161-183; FJ Seymour „Conservation, displacement, and compensation‟ in MM Cernea & HM Mathur Can compensation prevent impoverishment? (2008) 286-306

150

Wold et al (n 1 above); Dunnof (n 105 above); Deere-Birkbeck (n 89 above)

151

For a good collection of contributions on this, see BJ Richardson (ed) Local climate change law: Environmental regulation in

cities and other localities (2012)

26

funds,

152

and the REDD+ as a climate mitigation initiative

153

as they relate to indigenous peoples‟ land rights and related issues, including carbon rights and benefit-sharing, participation and a redress mechanism.

154

In particular, as a mitigation measure, the REDD+ governance has been described as embodying all institutions, policies and processes that a country has in place at national and subnational levels to implement the REDD+.

155

In relation to climate change, institutions and initiatives are an emerging subject of discourse at the regional level: the African

Union Committee of African Heads of State and Government on Climate Change

(CAHOSCC),

156

the African Ministerial Conference on the Environment (AMCEN),

157

and the

ClimDev-Africa Programme which operates through the three channels of African Climate

Policy Centre (ACPC), Climate Change and Desertification Unit (CCDU) and the ClimDev

Special Fund (CDSF).

158

Other institutions and initiatives with a climate change agenda are the

African Union Commission (AUS),

159

New Partnership for African Development (NEPAD),

160 the Pan-African Parliament,

161

and the Peace and Security Council (PSC).

162

152

L Schalatek et al „Climate finance thematic briefing: Adaptation finance‟ November 2012; R Muyungi `Climate change adaptation fund: A unique and key financing mechanism for adaptation needs in developing countries http://unfccc.int/press/news_room/newsletter/guest_column/items/4477.php (accessed 13 November 2013)

153

Willem den Besten et al (n 43 above) 40-48; Thompson et al (n 90 above) 100-110

154

T Sikor et al „REDD-plus, forest people‟s rights and nested climate governance‟ (2010) 20 Global Environmental Change

423-425; B Blom, T Sunderland & D Murdiyarso „Getting REDD to work locally: Lessons learned from integrated conservation and development projects‟ (2010) 13 Environmental Science Policy 164; C Robledo, J Blaser & S Byrne „Climate change: What are its implications for forest governance‟ in LA German, A Karsenty & A Tiani (eds) Governing Africa‟s forest in a globalised

world (2010) 354-76; T Griffiths Seeing “RED”? “Avoided deforestation” and the rights of indigenous peoples and local

communities (2007) 8; D Takacs Forest carbon law + property rights (November 2009) 5-57

155

UN-REDD Programme and Chatham House Guidance for the Provision of Information on REDD+ Governance (Draft) (June

2011) 4

156

Decision on the Coordination of the Committee of African Heads of State and Government on Climate Change (CAHOSCC) and Africa‟s Preparation for COP 19/CMP 9 Doc. Assembly/AU/6(XX) , see generally para 6 (CAHOSCC Decision) and chapter six for the discussion of its role; W Scholtz „The promotion of regional environmental security and Africa‟s common position on climate change‟ (2010) 10 African Human Rights Law Journal 1

157

P Acquah, S Torheim & E Njenga History of the African Ministerial Conference on the Environment 1985-2005 (2006); on the discussion of the role of AMCEN, see generally chapter 6 of this study

158

„Decision on Climate Change and Development in Africa‟ Doc.Assembly/AU/12(VIII); EAC, AUC and ADB Revised

ClimDev

Africa Framework Programme Document (2012); United Nations Economic and Social Council „Report on Climate for

Development (ClimDev-Africa) in Africa Programme‟ E/ECA/CFSSD/8/8 19-21 November 2012; Economic Commission for

Africa 8th session of the Committee on Food Security and Sustainable Development and the regional implementation meeting for the 20th session of the Commission on Sustainable Development „Report on Climate for Development (ClimDev-Africa) in

Africa Programme‟ E/ECA/CFSSD/8/8 13 November 2012; ECA and AUC ClimDev Special Fund Operational Procedures

Manual (December 2011) 12-13 (ClimDev Special Fund Operational Procedures); on the discussion of the operation of the

ACPC, see generally chapter 6 of this study

159

„The African Union Commission‟ http://www.au.int/en/commission (accessed 13 February 2014);„The EC-ACP Capacity

Building Programme on Multilateral Environmental Agreements-The Africa Hub-African Union Commission Training of

AfricanNegotiators‟file:///C:/Users/User/Downloads/MEAs%20Write%20up%20for%20MEAs%20and%20DREA%20Websites

%20%2014-9-11.pdf (accessed 10 February 2014); on the discussion of the role of African Union Commission, see generally chapter six of this study; and Viljoen (n 34 above)

160

The New Partnership for Africa's Development‟ (NEPAD) http://www.nepad.org (accessed 13 February 2014)(NEPAD

Framework Document); on the evolution of NEPAD, see I Taylor NEPAD: Toward Africa's development or another false start?

(2005); M Killander „The African Peer Review Mechanism and human rights: The first reviews and the way forward‟ (2008) 30

27

Nonetheless, rarely is there attention to the extent to which the climate change regulatory framework at different levels of application, namely, international, national and regional, safeguard indigenous peoples facing the adverse effects of climate change in relation to their lands. Authors such as Pasternack

163

and Osofsky,

164

who have analysed climate change related regulations at the national level of governance, did so in the context of North America and clearly indigenous peoples‟ lands is not the focus of their investigations. The rarity of academic attention to this subject, particularly at the national level, seems to confirm the position of

Gregersen et al that although normative and institutional issues are important aspects of climate governance, „most of the available literature does not get into the subject of governance improvement in depth, and particularly not at the country level‟.

165

Consequently, another important aspect of this study is to examine the extent to which the climate change regulatory frameworks at different levels of application, international, national and regional, safeguard indigenous peoples‟ land use and tenure in Africa.

At the regional level in Africa, the human rights system has taken a considerable lead in the protection of indigenous peoples and their land rights.

166

It is also beginning to engage with climate change through the human rights lens. In 2009, the African Commission on Human and

Peoples‟ Rights (the Commission) adopted Resolution 153, titled „Resolution on Climate Change and Human Rights and the Need to Study its Impact in Africa‟.

167

Subsequently in 2014, it urged

Human Rights Quarterly 41; R Herbert & S Gruzd (2008)The African Peer Review Mechanism:Lessons from the Pioneers ;

Guidelines for the NEPAD Climate Change Fund‟ http://www.nepad.org/sites/default/files/Guidelines%20for%20Applicants%20%28NEPAD%20Climate%20Change%20Fund%2

9.pdf (accessed 13 February 2014)

161

„Treaty Establishing the African Economic Community‟, adopted in Abuja , Nigeria, 1991 and entered into force in 1994

(AEC Treaty); BR Dinokopila „The Pan-African Parliament and African Union human rights actors, civil society and national human rights institutions: The importance of collaboration‟ (2013) 13 African Human Rights Law Journal 302-323; Pan African

Parliament Rules of Procedures; T Chagutah „PAP is fully behind the common African position on climate change‟ interview conducted‟ http://www.za.boell.org/web/cop17-785.html (accessed 10 January 2014)

162

Protocol on the Establishment of Peace and Security Council (PSC Protocol), adopted on 10 July 2002, and entered into force on 26 December 2003; LM Fisher et al „African peace and security architecture‟ A report commissioned by the African Union‟s

Peace and Security Department and subsequently adopted by the 3rd meeting of the Chief Executives and Senior Officials of the

AU, RECs and RMs on the Implementation of the MoU on Co-operation in the Area of Peace and Security, held from 4-10

November, Zanzibar, Tanzania; AO Jegede „The African Union peace and security architecture: Can the Panel of the Wise make a difference? „(2009) 9 African Human Rights Law Journal 419; Modalities of the Panel of the Wise, adopted by the Peace and

Security Council at its 100th meeting held on 12 November 2007 para IV(8) (Modalities of the POW)

163

Pasternack (n 108 above)

164

Osofsky (n 108 above)

165

H Gregersen et al „Does the opportunity cost approach indicate the real cost of REDD+?‟ Rights and realities of paying for

REDD+ rights and resources initiative (2010) 15; also see E Corbera & H Schroeder „Governing and implementing REDD+‟

(2011) 14 Environmental Law & Policy 89- 99

166

Endorois case (n 28 above)

167

African Commission of Human and Peoples' Rights, ACHPR/Res153(XLVI)09: Resolution on Climate Change and Human

Rights and the Need to Study its Impact in Africa, November 25, 2009 (Resolution 153)

28

the African Working Group Extractive Industries, Environment and Human Rights to carry out the assignment.

168

Similarly, the Commission and its Working Group on Indigenous Populations have covered climate change in their functions.

169

Contrary to what largely obtains at the national level in terms of the recognition of the identity of indigenous peoples, the jurisprudence developed by the Commission in the Endorois case offers some optimism that regional mechanisms can protect indigenous peoples rights in Africa.

170

Thus far, it is yet to explore how human rights can be engaged as a regional response in addressing the inadequacy of the climate change regulatory framework in relation to the protection of indigenous peoples‟ land rights.

1.9 Limitations of study

This study has qualified scope and is constrained by resources.

1.9.1 Limited scope

This study focuses on climate change, a phenomenon of global reality with varying adverse impacts on populations. The development in respect of this subject has a range of normative and institutional implications. Apart from the pillar instruments on climate change considered in this study, there are numerous instruments which are relevant to climate change and can be analysed.

171

In relation to the climate change regulatory framework on response measures of adaptation and mitigation, every year a range of decisions emerge from the conferences of COP and MOP under the Kyoto Protocol. In addition, there are reports by the Subsidiary Body for

Scientific and Technological Advice (SBSTA) and the Subsidiary Body for Implementation

(SBI), as well as the Ad-hoc working groups.

172

The regulatory framework also includes numerous guidelines established to support the implementation of an international climate response on adaptation and mitigation.

168

African Commission on Human and Peoples' Rights „271: Resolution on climate change in Africa‟, adopted at the 55th ordinary session of the African Commission on Human and Peoples‟ Rights held in Luanda, Angola, from 28 April-12 May 2014

169

See for instance its visits and resulting reports: „Report of the Country visit of the Working Group on Indigenous

Populations/Communities to the Republic of Congo‟, 37, 15-24 March, 2010 (DRC visit report); „Report of the Working Group on Indigenous Populations/Communities Mission to the Republic of Rwanda‟, 1-5 December 2008, adopted by the African

Commission on Human and Peoples‟ Rights at its 47th ordinary session, 30, 12-26 May 2010 (Rwanda Mission Report); „Report of the Working Group on Indigenous Populations/Communities Research and Information Visit to Kenya‟ 37, 1-19 March 2010 , adopted by the African Commission on Human and Peoples‟ Rights at its 50th ordinary session, 24 October - 5 November 2011

(Kenya‟s research and information visit)

170

Endorois case (n 28 above)

171

Examples include the CBD (n 39 above)

172

These institutions are examined and discussed in chapter 4 dealing with international climate change regulatory framework in relation to indigenous peoples‟ lands

29

However, in order to prevent endless research, it is important to note that the study is limited in certain respects. The first limitation is that while every part of the world will experience different measure of adverse effects of climate change, the focus of the study is on Africa where, according to scientific findings, there is evidence of serious vulnerability to climate change.

173

Even then, Africa is a vast continent with diverse people which will not record similar variation of climate change and its impacts.

174

Also, climate change will affect everyone, especially, those experiencing different shades of vulnerability owing to „gender, age, indigenous or minority status, or disability‟.

175

The focus of the study is, however, on indigenous peoples who, owing to reliance on lands for survival and extreme marginalisation, will suffer seriously the adverse impacts of climate change.

176

The concept of indigenous peoples‟ lands should deservedly refer to dispossessed lands as well as that within their possession. The thesis, however, addresses the climate change regulatory framework in relation only to the lands still within the possession of the indigenous peoples.

Second, the thesis focuses majorly on the normative aspects of the climate change regulatory framework which is developing at different levels of governance, including, international, regional, sub-regional, and national tiers. In discussing the climate change regulatory framework, the attention of the study excludes the sub-regional level as a result of an absence of concerete development at that level capable of academic enquiry.

177

Also, while looking at the national climate change regulatory framework, it is impossible for a study of this nature to look at all states in Africa. Hence, only three states are selected in Africa for assessment based on the reasons earlier given under the section dealing with research methods.

There are other disciplines important in assessing climate change regulatory framework which are not the focus of the study. For instance, understanding the political behaviour of states is a vital aspect of the rule-making process, but, it is the subject matter of international relations.

178

173

Collier et al (n 1 above); Boko et al (n 11 above)

174

Collier et al (n 1 above)

175

Decision 1/CP.16 (n 37 above) preamble; also see Human Rights Council „Report of the Office of the United Nations High

Commissioner for Human Rights on the relationship between climate change and human rights‟ A/HRC/10/61 15 January 2009

(OHCHR Report) para 44

176

UNDG Guidelines on Indigenous People (n 12 above); Stern (n 12 above) 281

177

What is clearly emerging from these levels are projects planned under regional framework for implementation at some of the sub-regions. Examples of such projects are metioned in the chapter 6 of the thesis in the section dealing with the African Union

Commission

178

Weiler (n 122 above); Keohane & Victor (n 122 above)

30

Efforts to address climate change embodies trade in carbon which falls within the realm of economists.

179

Similarly, several of the climate mitigation and adaptation initiatives such as the

REDD+ and alternative energy projects are within the remit of agriculturists, forestry experts, and engineers.

180

The focus of this study is on regulatory framework which are important because it is the basis within which other disciplines function in the context of climate change. In discussing the climate change regulatory framework, institutional components are only examined in so far as they are relevant to indigenous peoples‟ land tenure and use: the focus is mainly on laws, policies, guidelines, rules, and other rule-based initiatives pertaining to the application of adaptation funds as well as the mitigation initiative of the REDD+ at different levels of governance of climate change.

The third limitation is that both adaptation and mitigation, as international responses to climate change, have numerous initiatives which implicate indigenous peoples. For instance, as well as the issue of funding in adaptation, other options for adaptation include technology transfer,

181 which, although important, are not the focus of this study. In discussing adaptation funds, the focus of the study is on its regulatory framework. There are various measures, particularly on climate change mitigation which, although important, are outside the scope of this study.

Examples of these are projects under the Clean Development Mechanism (CDM) mechanism which seek to promote sustainable development, such as reforestation and alternative sources of energies in developing countries, including Africa.

182

The REDD+ intiative in Africa, which is selected as a climate change mitigation option for study, also has a market dimension which remains under negotiation.

183

While these aspects have their own implications for the human rights of indigenous peoples particularly in relation to their land tenure and use, they are not the focus of this study. Also, the REDD+ is being developed and supported by the UN-REDD

National Programme, but there are other multilateral initiatives supporting the REDD+ such as

179

Wold et al (n 1 above); Stern (n 12 above) 23

180

As above

181

See UNFCCC, arts 4(3), (7) and (8)

182

Kyoto Protocol, art 12; CDM allows emission-reduction projects in developing countries to earn certified emission reduction

(CER) credits, each equivalent to one tonne of CO2. These CERs can be traded and sold, and used by industrialised countries to meet a part of their emission reduction targets under the Kyoto Protocol, see http://cdm.unfccc.int/about/index.html (accessed 27

October 2011)

183

On the submissions of parties on various policy approaches that can be adopted in relation to financing REDD+, see UNFCCC

„Policy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries‟, Ad Hoc Working Group on Long-term Cooperative Action under the Convention 15th session Bonn, 15-

24 May 2012

31

Forest Carbon Partnership Facility (FCPF) and the Forest Investment Programme (FIP), hosted by the World Bank.

184

There are overlaps. However, this study focuses mainly on the regulatory framework of the REDD+ initiative under the UN-REDD National Programme in the three case studies.

Finally, there is limitation in terms of the period covered by this study. Given that the field of climate change is rapidly evolving, as mentioned earlier, new meetings are held every year by institutions such as the COP/MOP and SBSTA. Considering this evolving development, the research is generally limited to developments up to and including December 2013.

1.9.2 Resource constraints

The research is not funded and the investigator has a maximum period of three years to investigate thoroughly a difficult concept. Language difficulties are real since the focus is on indigenous peoples who are not familiar with the use of English language. These resources constraints inform the methodology of the study in focusing largely on the analysis of existing literature on the subject.

1.10 Synopsis

This study is presented in seven chapters:

Chapter One: Introduction

In introducing the study, this chapter highlights the background, reveals the controversies around the concept of „indigenous peoples‟, the intersection between indigenous peoples‟ lands, environment, forests and climate change as well as the meaning of the climate change regulatory framework in the study. It also identifies issues addressed by the study, namely, the conceptual basis for applying human rights to the subject of climate change, the notion of the land rights of indigenous peoples and the adverse effects of climate change, the extent to which the climate change regulatory framework addresses indigenous peoples‟ land tenure and use, and how human rights can be explored as a regional response in Africa to the inadequacy in the climate change regulatory framework in the protection of indigenous peoples‟ land rights.

184

UN-REDD Programme „FAQ‟ http://www.un-redd.org/FAQs/tabid/586/Default.aspx (accessed 12 May 2014)

32

Chapter Two: Human rights and climate change: Conceptual framework

In the main, the chapter examines the divergence and convergence between the environmental field and human rights as a conceptual framework for climate change. It argues that human rights principles intersect with environmental law principles and, therefore, are useful in assessing the adequacy [or otherwise] of the climate change regulatory framework in relation to the protection of indigenous peoples‟ land rights.

Chapter Three: The notion of indigenous peoples’ land rights and the adverse effects of climate change in Africa

This chapter examines indigenous peoples‟ land rights, highlighting their perception of land use and tenure as key features of land rights. It then demonstrates how certain principles of international law relating to land use and tenure have subordinated this notion of indigenous peoples‟ land rights, as well as the link to the adverse impacts of climate change in Africa.

Chapter Four: The international climate change regulatory framework in relation to indigenous peoples’ lands

A general overview of the international climate change regulatory framework is presented in this chapter. Particularly, the chapter focuses on the adaptation and mitigation regulatory framework.

In doing so, it argues that athough there is emerging evidence that the international climate regulatory framework considers indigenous peoples‟ land tenure and use, there are certain principles emphasised at this level which potentially may legitimise at the national level the subordination of indigenous peoples‟ land tenure and use.

Chapter Five: National climate change regulatory frameworks in relation to indigenous peoples’ lands

Following the overview provided in the preceding chapter, an attempt is made in this chapter to examine the extent to which the climate change regulatory framework at the national level offers protection to indigenous peoples‟ land tenure and use. In doing so, the focus is on selected states to draw a general pattern in Africa. In the main, the chapter assesses the regulatory framework on adaptation and mitigation processes in Tanzania, Nigeria and Zambia to show that the national

33

climate change regulatory framework does not adequately safeguard indigenous peoples‟ land tenure and use and related rights.

Chapter Six: The inadequacy of the national climate change regulatory framework in relation to indigenous peoples’ lands: Human rights as regional response

Responding to the gap in the climate change regulatory framework in relation to indigenous peoples‟ lands, the chapter contends that resort can be made to regional human rights instruments and institutions for the purpose of addressing the inadequate protection of indigenous peoples‟ land tenure and use in the climate change regulatory framework. It bases this position on three arguments. The first argument is the incompatibility of the inadequate climate regulatory framework at the domestic level with the regional human rights obligations of state and the rights guaranteed under regional human rights instruments. The second reason is the potential in the emerging regional climate change related institutions and initiatives for being linked to human rights. Finally, there is the argument that potential exists within the regional human rights mechanisms to address the inadequacy of the climate regulatory framework at the national level in relation to the protection of indigenous peoples‟ lands in Africa.

Chapter Seven: Conclusion and recommendations

The chapter summarises the preceding chapters. It concludes that there is link between human rights and climate change justifying its engagement as a conceptual basis. The notion of indigenous peoples‟ land rights exists in the form of subsistence use of land as well as informal and collective tenure system which are adversely impacted by climate change. While there is emerging evidence that the international climate regulatory framework considers indigenous peoples‟ land tenure and use, principles of „sovereignty‟, „country-driven‟ and „national legislation‟ emphasised at the level can potentially legitimise at the national level the subordination of indigenous peoples‟ land tenure and use. This is illustrated through examples on national climate change regulatory frameworks from Tanzania, Zambia and Nigeria where the inadequate protection of land use and tenure has negative implications for indigenous peoples‟ participation, carbon rights and benefit-sharing, as well their access to grievance mechanism and remedies.

34

The potential in the regional climate change regulatory framework for human rights, and the promotional, protective, interpretive and Assembly entrusted functions of the African

Commission on Human and Peoples‟ Rights (the Commission) can serve as specific channels by which the regional application of human rights can protect the land rights of indigenous peoples in the context of climate change in Africa. Notwithstanding the potential in resorting to regional human rights, reforms are necessary at the international, national and regional levels for effective protection of indigenous peoples‟ land rights in the context of climate change. At the international level, these reforms include the reconceptualisation of principles of „sovereignty‟,

„country-driven‟ and „national legislation‟. At the national level, it can either entail the creation of a new stand-alone regulatory framework on climate change that is consistent with the decisions under the international climate change regulatory framework and UNDRIP or the harmonisation of each of the existing law on climate change to recognise the subsistence use of land and tenure system of the indigenous peoples as guaranteed under decisions at the international climate change regulatory framework and UNDRIP. At the regional level, interaction between climate change related instituions and initiatives with human rights mechanisms and official policy statement on the protection of indigenous peoples in the light of climate change impact are required in Africa.

35

Chapter 2

Human rights and climate change: Conceptual framework

2.1 Introduction

The overarching goal of the thesis is to investigate whether in the light of adverse impacts of climate change the climate change regulatory framework adequately safeguards indigenous peoples‟ land rights and if not, to explore how the human rights concept can be employed as a regional response in Africa. The reference to „human rights‟ suggests that beyond debate is its relevance for assessing the climate change regulatory framework in relation to the protection of indigenous peoples‟ land rights under the threat of the adverse effects of climate change.

Indigenous peoples‟ land rights regime is widely discussed in literature as human rights,

1 however, the application of human rights to the subject of climate change is novel and contested.

The novelty case exists notwithstanding the official recognition which emerged at the United

Nations on the link between climate change and human rights by the adoption of Resolution 10/4 by the United Nations Human Rights Council (UNHRC).

2

Initially, climate change was discussed in meteorology being rooted in the physical sciences and, only recently, has been linked to the social sciences.

3

Despite the emerging events at the United Nations level, it remains controversial whether the human rights and, not an environmental law framework is the appropriate conceptual basis for climate change.

4

This chapter argues that this tension is needless. Human rights is useful in assessing the adequacy or otherwise of the climate change regulatory framework in protecting indigenous peoples‟ land rights facing the negative consequences of climate change. Its value in assessment is achieved by the intersection of human rights with key environmental law issues and principles.

The chapter is presented in four parts. Following the introduction, part two addresses the

1

The notion of indigenous peoples‟ land rights in Africa is extensively discussed in chapter 3

2

„Human rights and climate change‟, Human Rights Council Resolution 10/4, adopted at the 41st meeting, 25 March 2009

(Resolution 10/4)

3

S Humphreys „Introduction: Human rights and climate change‟ in S Humphreys (ed) (2010) Human rights and climate change

(2010) 1; International Council on Human Rights Climate change and human rights: A rough guide (ICHR Guide) (2008) 3-6

4

D Hart „Is climate change a human rights issue?‟ (2012) 24 Environmental Law & Management 76; D Bodansky „Introduction:

Climate change and human rights: Unpacking the issues‟ (2010) 38 Journal of International & Comparative Law 511, 516

36

theoretical dilemma posed by applying human rights as a conceptual basis. Part three unpacks human rights as a theoretical basis. Part four is the conclusion.

2.2 Human rights in climate change discourse: Conceptual dilemma

The consideration of human rights as a basis for conceptualising climate change is recent and contested.

5

The first official recognition of a relationship between climate change and human rights at the UNHRC emerged with the adoption of Resolution 10/4 in 2009.

6

Additionally, on

17 October 2011, the Human Rights Council adopted another resolution on human rights and climate change‟ (Resolution 18/22) as well as in 2014, Resolution 26 L/23.

7

Resolution 10/4 was adopted following the report of the Office of the High Commissioner on Human Rights

(OHCHR).

8

The report was subsequent to the adoption of Resolution 7/23 of the UNHRC in

2008,

9

which requested the Office of the OHCHR to carry out „a detailed analytical study of the relationship between climate change and human right.‟ 10

A number of states,

11

United Nations Organisations,

12

regional intergovernmental organisations,

13

non-governmental organisations,

14

and national human rights institutions,

15

5

M Limon „Human rights and climate change: Constructing a case for political action‟(2009) 33 Harvard Environmental Law

Review 439; JH Knox „Linking human rights and climate change at the United Nations‟ (2009) 33 Harvard Environmental Law

Review 483

6

Resolution 10/4 (n 2 above)

7

UNHRC Res 26 L/33 „Human rights and climate change‟23 June 2014, A/HRC/26/L.33;UNHRC Res 18/22 „Human rights and climate change‟ (2011) (Resolution 18/22) A/HRC/RES/18/22

8

Human Rights Council „Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights‟ A/HRC/10/61 15 January 2009 (OHCHR Report)

9

Human Rights Council „Human rights and climate change‟ Res. 7/23, U.N. Doc. A/HRC/7/78 (Resolution 7/23)

10

Resolution 7/23 (n 9 above ) para 1

11

These states are Albania, Argentina, Australia, Bolivia, Bulgaria, Canada, Colombia, Costa Rica, Ecuador, Finland, France,

Guatemala, Japan, Maldives, Marshall Islands, Mauritius, New Zealand, Oman, Romania, Russian Federation, Serbia, Spain,

Sudan, Switzerland, Togo, Ukraine, United Kingdom, United States of America and Zimbabwe, see United Nations Human

Rights Council „OHCHR study on the relationship between climate change and human rights: Submissions and reference documents received‟ http://www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/Submissions.aspx (accessed 10 December

2013)

12

Food and Agriculture Organisation of the United Nations (FAO), International Labour Organisation (ILO), International

Maritime Organisation (IMO), International Civil Aviation Organisation (ICAO), Secretariat of the United Nations Convention on Combating Desertification (UNCCD), United Nations Development Fund for Women (UNIFEM), United Nations Institute for

Training and Research (UNITAR), World Food Programme (WFP), World Health Organisation (WHO), World Meteorological

Organisation (WMO)

13

European Commission, Organisation of American States

14

Earthjustice, Environmental Defender's Office - New South Wales, Australia, Foundation for International Environmental Law and Development (FIELD), Friends of the Earth - Australia, Climate Action Network Australia (CANA), Australian Climate

Justice Programme (ACJP), Friends of the Earth - England, Wales and Northern Ireland, Global Forest Coalition, Greenpeace,

International Commission of Jurists (ICJ) – Dutch Section, International Council on Human Rights Policy (ICHRP), International

Disability and Development Consortium (IDDC), International Indian Treaty Council (IITC), Minority Rights Group

International (MRGI), Movimiento de la Juventud Kuna (MJK)- Panama, New South Wales Young Lawyers - Australia, Oxfam

37

responded to the invitation. Also crucial are the submissions made by international organisations such as the Global Forest Coalition,

16

the International Indian Treaty Council,

17

and the Friends of the Earth.

18

Notable in the discussions as to whether climate change is an environmental or a human rights concern are the submissions made by developed states such as United States,

19

Canada,

20

the United Kingdom,

21

Australia,

22

Finland

23

and African nations such as Mali,

24

Mauritius,

25

and Zimbabwe.

26

The analysis of these submissions, as shall be seen in the subsections, generally indicates that opinion is divided on whether climate change is an environmental or a human rights concern. Some particpants take the view that it is an environmental issue which should be addressed by mechanisms different and distinct from human rights, other participants view the issue differently.

International, Sydney Centre for International Law, the University of Sydney, the Climate Justice Programme, and International

Union for Conservation of Nature (IUCN)

15

Human Rights and Equal Opportunities Commission „Australia background paper: Human rights and climate change‟ http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Australia_HR_Equal_Opportunity_Commission_HR_Cli mateChange_4.pdf (accessed 8 April 2014); The Asia Pacific Forum of National Human Rights Institutions „Human rights and the environment‟ http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Asia_Pacific_Forum_of_NHRIs_1_HR_and_Environment

_ACJ_Report_Recommendations.pdf (accessed 8 April 2012)

16

„Climate change, forest conservation and indigenous peoples rights‟ submission by Global Forest People, (GFP submission ) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Global_Forest_Coalition_Indigenous_Peoples_ClimateCh ange.pdf (accessed 26 October ) 2012 1-8

17

„Climate change, human rights and indigenous peoples‟ submission to the United Nations High Commissioner on Human

Rights by the International Indian Treaty Council (IITC Submission) 20, 21, 49, 50, 51

18

„Submission to the OHCHR regarding human rights and climate change by Friends of the Earth Australia, the Australian

Climate Justice Programme and Climate Action Network Australia‟ (Friends of the Earth Submission) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Friends_of_the_Earth_Australia_CANA_ACJP.pdf

(accessed 15 October 2012) 4

19

„Observations by the United States of America on the relationship between climate change and human rights‟ http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/USA.pdf (accessed 8 April 2012) (USA Submission)

20

„Government of Canada Response to request for information by the Office of the High Commissioner for Human Rights concerning a request in Human Rights Council resolution 7/23 for a detailed analytical study of the relationship between climate change and human rights‟ (Canada Submission) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Canada.pdf (accessed 18 October 2012)

21

„Human Rights Council Resolution 7/23 (Human rights and climate change)‟ (UK Submission) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/UK.pdf (accessed 18 October 2012)

22

„Australian Government submission to the Office of the High Commissioner for the Human Rights on the Relationship between climate change and human rights‟ (Australia Submission) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Australia.pdf (accessed 18 October 2012).

23

„The Government of Finland Replies to the Questionnaire to Member States prepared by the Office of the High Commissioner for Human Rights, pursuant to Human Rights Council resolution 7/23 on human rights and climate change‟ (Finland Submission) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Finland.pdf (accessed 18 October 2012)

24

„Submission of Mali to OHCHR Study „Human Rights and Climate Change‟ (Mali Submission)

http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Mali.pdf (accessed 18 October 2012); also see Limon (n 5 above) 475 on the author‟s reading and analysis of an instrument originally in French language

25

„Human Rights Council Resolution 7/23 (Human rights and climate change)‟ (Mauritius Submission) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Mauritius.pdf (accessed 18 October 2012).

26

„Expected impacts of climate change vulnerability and adaptation assessments in Zimbabwe‟ (Zimbabwe Submission) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Zimbabwe.pdf (accessed 18 October 2012)

38

2.2.1 Two perspectives: An environmental or human rights concern?

2.2.1.1 Climate change as an environmental concern

In its submission to the Office of High Commissioner for Human Rights (OHCHR),

27

the United

States argues that a human rights approach is unlikely to be effective in addressing climate change. In its view climate change is a „complex global environmental problem‟ which is not amenable to human rights-based solutions.‟

28

Further defending the sentiment that climate change is strictly an environmental issue, the United States submitted that international cooperation and not contestation, as connoted by human rights, is necessary to fix the climate change crisis. In its view:

The process of pursuing human rights claims would be adversarial and require affixing blame to particular entities; this contrasts with the efforts to achieve international co-operation that have thus far been pursued through the international climate change negotiations.

29

In the main, it argues that:

[G] reenhouse emissions that contribute to climate change are linked to a broad array of human rights activities. This includes activities related to electricity, transportation, industry, heating, waste disposal, agriculture, and forestry...

30

According to the United States, climate change can be more effectively handled through

„traditional systems of international co-operation and international mechanisms for addressing this problem, including through the United Nations Framework Convention on Climate Change

(UNFCCC) process.‟

31

Sharing this view point, Canada submits that UNFCCC is the „most appropriate‟ venue and not the Human Rights Council for climate change discussion.

32

In support, Finland took the view that it is difficult to define responsibility of states in a climate change context based on international human rights treaties.

33

27

USA Submission (n 19 above) paras 11-26

28

USA Submission (n 19 above) para 23

29

USA Submission (n 19 above) para 26

30

USA Submission (n 19 above) para 22.

31

USA Submission (n 19 above) 4

32

Canada Submission (n 20 above)

33

Finland Submission (n 23 above) para d

39

A close reflection on these submissions supporting climate change as an environmental concern rests on two bases, namely, the global nature of the problem and its link with activities which ensure the realisation of human rights. These bases merit scrutiny.

a. Complex global environmental problem

The negotiation and outcome of international climate change instruments are patterned upon the conception of climate change as a global environmental challenge which is best addressed through consensus and co-operation. The process began with the adoption of a framework convention establishing basic issues and was followed by a more regulatory instrument in the form of a protocol.

34

To that end, rather than a binding instrument, what was established in 1992 was a framework, that is, the UNFCCC which merely sets out the basic structure for addressing climate change.

35

This was followed by a regulatory and binding instrument of the Kyoto

Protocol in 1995,

36

in between and afterward, there have been a number of Conference of Parties

(COP) decisions which have emerged from international climate change negotiations.

37

This approach follows a rulemaking tradition familiar to the international environmental law making process.

38

Strong evidence of the conception of climate change as an environmental concern is discernible in the language used in the two pillar instruments. The UNFCCC and Kyoto Protocol, which emanated from climate change discussions, have environmental protection as their aim. By suggesting that climate change is an environmental concern, article 2 of the UNFCCC demonstrates a strong inclination toward environmental protection when it provides that the ultimate objective of the UNFCCC is the „stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system‟. Furthermore, for the benefit of present and future generations, article 3(1) of the

UNFCCC enjoins parties to protect the climate system. The environmental dimension of climate

34

D Bodansky & L Rajamani „The evolution and governance architecture of the climate change regime‟ in D Sprinz &U

Luterbacher (eds) International relations and global climate change (2013) 2

35

The United Nations Framework on Climate Change Convention (UNFCCC) is one of the key instruments in relation to climate change adopted at World Conference on Environment and Development at Rio de Janeiro, 3-14 June 1992

36

United Nations Kyoto Protocol to the United Nations Framework Convention on Climate Change (1998) entered into force 16

February, 2005, arts 6, 12 &17; the 1st commitment under the Protocol ended in 2012 and was extended in Doha from 1 January

2013- 31 December 2020, see http://unfccc.int/kyoto_protocol/items/2830.php (accessed 23 May 2013)

37

Bodansky & Rajamani (n 34 above) 4

38

As above

40

change is similarly expressed in the commitment of the global community toward the mitigation of climate change under the UNFCCC. Article 4(1)(b) enjoins all parties, considering their common but differentiated responsibilities as well as specific national and regional circumstances, to put in place measures to mitigate climate change.

39

Along similar lines, the Kyoto Protocol requires developed states, listed under Annex 1 of the

UNFCCC each to „implement and/or further elaborate policies and measures in accordance with its national circumstances.‟

40

These policies include promotion of energy efficiency, protection and enhancement of sinks and reservoirs of greenhouse gases not under the Montreal Protocol, promotion of sustainable forest management practices, afforestation and reforestation,

41

all of which point towards the environmental dimension of climate change.

Similarly, scholarship strongly stresses the environmental or ecological dimension of the impacts of climate change, that is, its effects on the physical environment. For instance, Rajamani posits that climate change is „the most significant environmental problem of our time.‟ 42

To Suckling, the „polar bears are the icon for climate change‟.

43

According to Cloutier, the Arctic is the

„world‟s barometer of climate change‟, 44

while McKibben notes that in increasing the amount of carbon dioxide in the atmosphere, human beings may well be „ending nature‟.

45

The position strictly viewing climate change as an environmental concern is not without its weaknesses. First, notions under the UNFCCC, such as common but differentiated responsibilities,

46

participation

47

and vulnerability,

48

as shall be made manifest later in this

39

UNFCCC, art 4(1)(b)

40

The states listed as having commitment obligations under Annex 1 are developed countries, namely, Austria, Belgium, Canada,

Denmark, European Economic Community, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg,

Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom of Great Britain and

Northern Ireland and United States of America. Other countries involved are those undergoing process of economic transition.

These are Belarus, Bulgaria, Czechoslovakia, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Russian Federation,

Ukraine

41

Kyoto Protocol, art 2(1)(a) generally

42

L Rajamani „The principle of common but differentiated responsibility and the balance of commitments under the climate regime‟ (2000) 9 Review of European Community & International Environmental Law 120

43

K Suckling „An icon for climate change: The polar bear‟ (2007) http://indiancountrytodaymedianetwork.com/ictarchives/2007/01/04/suckling-an-icon-for-climate-change-the-polar-bear-90193

(accessed 20 June 2013)

44

S Watt Cloutier „Remarks upon receiving the Canadian Environment Awards Citation of a Lifetime Achievement‟ (June 5,

2006 )

45

B Mckibben The end of nature: Humanity, climate change and the natural world (2003) 48

46

UNFCCC, preamble

47

UNFCCC, art 4(1)(i)

48

UNFCCC, preamble and art 3(2)

41

discussion, raise the issue of environmental justice which is linked to human rights. Second, even if its construction as an environmental challenge is valid, individuals whose environment is adversely affected by climate change or wish to speak solely for its protection are incapable of accessing direct remedies considering the non-adversarial nature of the dispute resolution under the pillar instruments of climate change. For instance, provided the necessary conditions are complied with, parties may have recourse to the International Court of Justice for settlement of a dispute arising under the UNFCCC.

49

This remedy is available only to the state and operates in the shadow of article 14(1) which stipulates negotiation and the peaceful settlement of disputes as the preferred and first option. This conception differs largely from a human rights‟ notion of dispute resolution which is generally adversarial and accessible to individuals. Following a similar pattern as under the UNFCCC, is the consensual nature of the compliance mechanism that exists under the Kyoto Protocol.

50

The compliance arrangement involves a Compliance

Committee of 20 members functioning in two main branches: a Facilitative Branch and an

Enforcement Branch.

51

The Committee does not address individual cases of non-compliance, and only report on its activities to the Conference of Parties (COP).

52

In all, the argument and scholarship portraying climate change strictly from the environmental angle may deflect attention from the human victims of the global environmental challenge.

b. Link of human rights with climate change induced activities

In advocating the construction of climate change as an environmental challenge, the United

States noted as follows that:

Many activities that contribute to the buildup of greenhouse gases in the atmosphere are themselves critically important to advancing human wellbeing and higher standards of living. Similarly, many of these activities contribute to the advancement of human rights, and indeed the individual actors contributing to these emissions are themselves rights holders

Even though it can be faulted, the above position is not unconsidered in view of a context in which human rights is linked with economic globalisation in the theoretical foundation of

49

UNFCCC, art 14(2)

50

„Procedures and mechanisms relating to compliance under the KyotoProtocol‟ adopted as Decision 24/CP.7 of the Marrakesh

Accords (Decision 24/CP.7)

51

Decision 24/CP.7 (n 50 above) Annex, Sec II, paras 1, 2 and 3

52

Decision 24/CP.7 (n 50 above) sec III; see generally, G Ulfstein & J Werksman „The Kyoto compliance system: Towards hard enforcement‟ in OS Stooke, J Hovi & G Ulfstein Implementing the climate regime: International compliance (2005) 39-62

42

„liberalism‟. As a political theory advanced by Hobbes and Locke to challenge the medieval thinking and established the tradition in which Man is freed from all restraints and possesses a natural right to all the objects of his desire,

53

liberalism, in the account of Mutua, is the origin of of the international human rights was birthed in liberal theory and philosophy.

54

Through colonialism and globalisation, the concept of rights has found a place in the normative framework of non-Western parts of the world.

55

A development which, in the words of Donelly, has made human rights a „standard of civilisation‟.

56

Similarly, economic globalisation has become popular in the context of neo-liberal paradigm,

57 considered in some literature as the return of classical liberalism which advanced minimal role for states and that economy should be left to the free dealings of citizens, and the organisations they freely choose to establish and take part in.

58

The neo-liberal economic model is supported by institutions, in particular, the World Bank, International Monetary Funds (IMF) and the

World Trade Organisation (WTO).

59

These institutions are largely controlled by developed nations, including the United States, through their voting shares.

60

The neo-liberal economic agenda has thrived in the context of the human rights to self-determination and natural resources which are often engaged as a ground to dispose of environmental resources within a given territory.

61

Woods offers a succinct description of the process of economic globalisation which is thriving on neo-liberal notion and relevant to the realisation of human rights. According to the author:

Technological change and government deregulation have permitted the establishment of transnational networks in production , trade and finance. The new „production‟ network describes firms and multinational enterprises (MNEs) who use advanced means of communication , and new, flexible techniques of production so as to spread their activities across

53

LP Hinchman „The origin of human rights: A Hegelian perspective‟(1984) 37 Western Political Quarterly 8

54

M Mutua „Standard setting in human rights: Critique and prognosis‟ (2007) 29 Human Rights Quarterly 547, 551

55

J Cobbah „African values and the human rights debate: An African perspective‟ (1987) 9 Human Rights Quarterly 314, 315

56

J Donelly „Human rights: A new standard of civilisation‟ (1988) 74 International Affairs 1

57

K Woods Human rights and environmental sustainability (2010) 3; G Rist The history of development: From western origins

to global faith (2008) 21-24; this position is generally true except for autocratic nations such as China which is achieving economic development certainly not within the neo-liberal paradigm, see C Tisdell „Economic reform and openness in China:

China‟s development policies in the last 30 years‟(2009) 39 Economic Analysis & Policy 271

58

DE Thorsen & A Lie „What is neoliberalism?‟ http://folk.uio.no/daget/neoliberalism.pdf (accessed 14 August 2014) 2, 5;

Woods (n 57 above) 4

59

Woods (n 57 above) 13

60

In relation to IMF, for instance, the United States top the voting shares with 421,961, see International Monetary Fund „IMF

Executive Directors and Voting Power‟ http://www.imf.org/external/np/sec/memdir/eds.aspx (accessed 21 May 2014)

61

Woods (n 57 above) 7

43

the globe. In trade, globalisation refers to the fact that the quantity and speed of goods and services traded across the globe has increased , and so too has the geographical spread of participants, the strength and depth of institutions which facilitate trade, and the impact of trade on domestic economic arrangements. Finally, in finance, globalisation has been facilitated by new financial instruments which permit a wider range of services to be brought and sold across the world economy.

62

That the foregoing developments enhance realisation of human rights may be self-evident.

Nevertheless, a range of policies which feature along the path of economic globalisation have come with adverse impacts on the environment, moving Pollis to declare that globalisation stems from `the ideology of neoliberalism,

63

which is devoid of any normative principle of justice and humanity‟ and is responsible for the ills of the world.

64

While Woods, on the other hand, holds that „it is misleading to suggest that neoliberalism has no normative principles of justice‟,

65

Pollis‟ viewpoint has some measure of merit when one considers the negative impact of economic globalisation on the environment, and arguably, its contribution to climate change.

In occasioning adverse effects such as environmental spoilage and pollution, the integration of neoliberal economic policies with national economic programmes contributes to climate change.

For instance, the implementation of structural adjustment programmes (SAP) which were propagated through the World Bank by the IMF in the 1980s as a way to stimulate economic growth and address the payment of foreign debt, has had environmental consequences. These programmes cut down on public spending and regulation, so as to stimulate agriculture and industry in order to integrate a given country into world market and attract foreign direct investment.

66

According to Woods, environmentalists object to SAP on three grounds.

67

First, by involving the lowering of environmental standard to enable multinationals to perform their operations, SAP encourages environmental spoilage.

68

Second, in encouraging the cutting down of public spendings, it necessitates a drastic reduction of the budget for environmental protection. Finally, in relation to agriculture, in the interest of pursuing comparative advantage in

62

N Woods „The political economy of globalisation „ in N Woods (ed) The political economy of globalisation (2000) 3

63

A Pollis „Human Rights and globalisation‟ (2004) 3 Journal of Human Rights 343

64

As above

65

Woods (n 57 above) 4

66

RL Bryant & S Bailey Third world political ecology (1997) 114

67

Woods (n 57 above)14

68

As above

44

the market place, subsistence cropping for which the poor are known is neglected in favour of cash crops.

69

In all, as Bryant and Bailey note:

[S]tructural adjustment programmes often simultaneously reduce the ability of states to respond to environmental problems and increase the seriousness and intensity of those problems.

70

Also, significant to the contribution of globalisation to climate change is environmental pollution. Sari lists three ways through which foreign direct investment may negatively impact on the level of environmental pollution in a given country. In the author‟s view:

[1]If trade and investment liberalization cause an expansion of economic activity, and the nature of that activity remains unchanged, then the total amount of pollution must increase.

[2][the] composition effect, the effect derived from different comparative advantages [where] some sectors in different economy will expand, while others will contract....If the comparative advantage is derived from lower environmental standards, then the composition effect will be damaging to the environment.

[3] the efficiency effect, resulting from different technologies utilised in the production system. Some technologies may reduce both input requirements of environmental resources and the pollution produced, but others may not have this effect.

71

Sari‟s explanation of the „composition effect‟ relates to climate change. The author refers to the example of steel industry, arguing that high pollution cost of production in developed countries often underlies the relocation of business to developing countries where there are low environmental standards which encourages further pollution of the environment.

72

Barkin, in a study released in 2003 titled „The counter-intuitive relationship between globalisation and climate change‟ found that the consequence of globalised trade on the environment in relation to carbon emission and other greenhouse gases is dependent upon the mode of transportation.

73

Hence, it not strange that the United States of America and others argue that considering its link with the realisation of human rights, consensual and cooperative approaches offered through the

69

As above

70

Bryant & Bailey (n 66 above) 61

71

AP Saris „Environmental and human rights impacts of trade liberalization : A case study in Batam Island, Indonesia‟ in L

Zarsky (ed) Human rights and the environment: Conflicts and norms in a globalising world (2002)123-146

72

As above

73

JS Barkin „The counter-intuitive relationship between globalisation and climate change‟ (2003) 3 Global Environmental

Politics 8

45

platform of the UNFCCC are appropriate and effective for addressing climate change. This point of view has equally being advanced in some writings on the subject.

74

Posner demonstrates leading arguments for the preference for a consensual political environment such as allowed under the UNFCCC and not human rights as a conceptual basis for addressing climate change.

According to the author, engaging human rights „would not lead to desirable outcome‟.

75

Human rights is problematic because of the causation of climate change, which involves everyone, however minimally.

76

Even if some nations are more responsible, the author contends that penalising such nations with the aid of human rights will have a minimal effect on the climate if other nations or businesses can continue in pursuing unfriendly climate activities.

77

Human rights apply across board and do not differentiate between poor or rich states, therefore, its usage as a conceptual basis will affect economic development which is a critical concern of developing nations.

78

Finally, as matters of complaints will end up before the courts, contrary to the role of court as interpreter of the law, it may lead to the court taking decisions about complex matters of policy which are best handled and balanced through politics.

79

It is necessary to respond to the foregoing arguments linking human rights with activities that may induce climate change, inclusive of inclusive of Posner‟s position. First, economic activities have environmental effects material to climate change, but is illogical to ignore the relevance of human rights as a conceptual platform for addressing climate change, because environmental degradation can be explained outside the neo-liberal paradigm. For instance, nations such as

China which is unsympathetic to the human rights paradigm has vigorously pursued economic development,

80

with little regard for the environment.

81

This trend at least questions the basis of linking environmental despoilation to the liberal source of human rights and, arguably, economic globalisation. Rather, human rights concept generally allows for the protection of the

74

EA Posner „Climate change and international human rights litigation: A critical appraisal‟ (2007) 155 University of

Pennsylvania Law Review 1925; Posner‟s argument is further reiterated in its subsequent paper, see EA Posner & CR Sunstein

„Climate change justice‟ (2008) 96 Georgetown Law Journal 1565; also see J Gupta „Legal steps outside the Climate

Convention: Litigation as a tool to address climate change‟ (2007) 16 RECIEL 76; M Allen „Liability for climate change: Will it ever be possible to sue anyone for damaging the climate?‟ (2003) 421Commentary in Nature 891

75

Posner (n 74 above) 1925

76

Posner (n 74 above) 1929

77

Posner (n 74 above) 1927

78

Posner (n 74 above) 1939

79

As above

80

Tisdell (n 57 above)

81

B Xu „China‟s environmental crisis‟ http://www.cfr.org/china/chinas-environmental-crisis/p12608 (accessed 20 April 2014);

M Nako „Chad fines China's CNPC unit $1.2 billion for environmental damage‟ http://www.reuters.com/article/2014/03/21/uschad-cnpc-fine-idUSBREA2K1NB20140321 (accessed 21 March 2014)

46

environment. For instance, most national constitutions that guarantee individual socio-economic rights assure the protection of the environment through a provision of the human rights to a healthy environment.

82

Consequently, human rights as a concept cannot be seen as a barrier to addressing climate change.

More particularly on the issue of global causation of climate change as a disqualifier of human rights framework, Posner‟s argument does not address the factor of disproportionality of contribution in the causation of climate change and underates the relevance of human rights as a basis for redressing disproportionality.

83

If the argument of Posner is maintained, it will require the neglecting the circumstances of developing states and, indeed, indigenous peoples, who disproportionately bear the burden of climate change.

84

Accepting Posner‟s argument will amount to treating unequals equally.

To the argument that the developed states alone cannot halt a changing climate, there is no better response than human rights. It is an essential aspect of the human rights concept that in the matter of the realisation of rights, a state cannot refuse to discharge its obligations by resort to the actions or inactions of other states.

85

Hence, in relation to addressing the cause and impact of climate change, the omission or inaction of one state should not be an excuse for other states not to act. By extension, the inaction of one region is not a justification for other regions not to act.

Similarly, the position that employing human rights to penalise climate unfriendly approaches may affect the economic development of developing states is misconceived. It suggests that the realisation of economic development cannot be attained without the violation of the human right to healthy environment. It is incorrect to suggest that a human rights platform is incapable of being engaged to drive sustainable development or that sustainable development is not a human

82

For example, the right to clean and healthy environment is guaranteed respectively under art 42 of the Constitution of Kenya,

2010 and art 24 of the Constitution of the Republic of South Africa, 1996

83

This disproportionate contribution underlies the principle of common but differentiated responsibility as underscored in a number of climate-related instruments such as principle 7 Rio Declaration, arts 3(1) and 4 (1) of the UNFCCC and art 10 of the

Kyoto Protocol

84

As above; „United Nations Development Group Guidelines on Indigenous Peoples Issues‟, February 2008

<www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdf> (accessed 20 May 2013) 8; also see N Stern The economics of

climate change (2006) 95

85

O De Schutter et al „Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic

Social and Cultural Rights‟ (2012) 34 Human Rights Quarterly 1084, 1096

47

rights. This reasoning again defeats the whole notion of respecting human rights to healthy environment which is central to the notion of sustainable development.

86

Posner‟s position that litigation in courts may generate bad policy decisions 87

is difficult to understand. The author admits that human rights litigation can „generate press attention, mobilise public interest groups, galvanize ordinary citizens, and ultimately gain compensation for victims‟ and particularly generates „wiser policy‟.

88

If as Posner argues, human rights litigation is incapable of achieving both ends, then, the problem is no longer about the potential utility of the notion of human rights, rather, it is about the context and substance of court decisions. It amounts to rejecting the essential along with the insignificant to reject human rights as a conceptual basis for addressing climate change simply because it is capable of producing conflicting policy ends.

In what is in contrast to the foregoing, there are arguments demonstrating that the human source of climate change and vulnerability are valid reasons for involving a human rights framework in a climate change discourse.

2.2.1.2 Climate change as a human rights concern

The evidence that climate change is linked to human activities and vulnerability is the very reason for engaging a human rights framework as a conceptual basis for addressing the issue.

a. Human source of climate change

There are submissions, especially by developing nations including states in Africa, to the

UNHRC that the human source of climate change is linked to the developed nations. For instance, Mauritius notes that being a small island state, it‟s greenhouse gas emissions are insignificant.

89

Mali indicates in its submission that „it is almost impossible for populations in poor countries to identify and pursue channels of justice, to have their cases heard, or to prove

86

Sustainable development is defined as „development that meets the needs of the present generation without compromising the ability of the future generation to meet their own needs‟, see World Commission on Environment and Development (WCED)

Our common future (1987); on the evolution and analysis of enviro-economic instruments relating to its application see, D Tladi

Sustainable development in International law: An analysis of key enviro-economic instruments (2007) 68, where the author indicates that human rights to environment is one of the intersects with the notion of sustainable development

87

Posner (n 74 above) 1931

88

As above

89

Mauritius Submission (n 25 above)

48

responsibility‟.

90

These submissions claim that the activities of the populations in developed countries are to blame for a changing climate and a human rights concept can be used as a tool to address the adverse consequencies resulting from such activities. It has been shown, compared to the situation in developing nations, the consumption of products in developed states disproportionately harms the environment. Mckibben argues climate change is a consequence of the „way of life‟ chosen by one part of the world.

91

These views can be further reinforced by key provisions of instruments in the climate change regulatory framework. Article 3 of the UNFCCC on the objective of the Convention reiterates that it aims at addressing the human cause (anthropogenic) of climate change. That the populations in developed nations of the world contribute more to climate crisis is evident from the two instruments on climate change, that is, the UNFCCC and Kyoto Protocol. The preamble to the UNFCCC, for instance, notes that emission of greenhouse gases has largely and historically originated from developed countries. This is the basis for the principle of common but differentiated responsibility which is entrenched under articles 3(1) and 4 (1) of the

UNFCCC and article 10 of the Kyoto Protocol. Robinson is correct in observing that the „human source‟ of climate change is a strong force for involving a human rights framework in the climate change discourse.

92

In reinforcing this viewpoint, De Schutter argues that issues such as unsustainable deforestation, mining and ocean degradation should be considered in terms of their impacts on human life and as a threat to human rights.

93

b. Human vulnerability to climate change

The notion of vulnerability has been widely defined in different contexts. According to F¨ussel, its roots can be traced to research in geography and natural hazards. Now, it is used in different research communities dealing with „disaster management, public health, development, secure

90

Mali Submission (n 24 above)

91

L Fagbohun „Mournful remedies, endless conflicts and inconsistencies in Nigeria‟s quest for environmental governance:

Rethinking the legal possibilities for Sustainability‟ (2012) 7; B Mckibben The end of nature: Humanity, climate change and the

natural world (2003) 46

92

M Robinson „Foreword‟ in S Humphreys (ed) Human rights and climate change; also see Oxfam International „Climate wrongs and human rights: Putting people at the heart of climate-change policy‟ (2008) Executive Summary http://www.oxfam.org/sites/www.oxfam.org/files/bp117-climate-wrongs-human-rights-summary-0809.pdf. (accessed 14 October

2012) which emphasises the need to view climate change as human wrong

93

O De Schutter „Climate change is a human rights issue and that's how we can solve it‟ (2012)

Tuesday 24 April. The Guardian http://www.guardian.co.uk/environment/2012/apr/24/climate-change-human-rights-issue

(accessed 15 June 2013)

49

livelihoods, and climate impact and adaptation‟.

94

According to Liverman, vulnerability „has been related or equated to concepts such as resilience, marginality, susceptibility, adaptability, fragility, and risk‟.

95

In the context of climate change, vulnerability has been defined as „the degree to which geophysical, biological and socio-economic systems are susceptible to, and unable to cope with the adverse impacts of climate change‟.

96

The concept of vulnerability has found expression in human rights discourse and is relevant in conceptualising climate change as a human rights challenge. This is well reflected in the submissions made pursuant to Resolution 28/3 of 2008

97

and the resultant OHCHR Report of

2009.

98

The submission by the Global Forest Coalition offers extensive insight into the plight of vulnerable groups particularly, indigenous peoples, in the face of climate change response measures such as REDD+ and renewable energy projects and concludes that climate change has implications for the rights of indigenous peoples.

99

The International Indian Treaty Council discusses different scenarios of the impacts of climate change on indigenous peoples,

100

a viewpoint highlighted by the Friends of the Earth in their conclusion on the need to integrate human rights into the climate policy debate.

101

Stressing the centrality of human vulnerability to the dicussion which led to the adoption of

Resolution 10/4, Limon notes that this position is visible in the series of mutually reinforcing efforts by vulnerable states, indigenous peoples‟ groups and non-governmental organisations

(NGOs) to highlight and leverage the linkage between human rights and climate change.

102

The motivation for their efforts, Limon explains, was three-fold. First, it was a result of common frustration felt by these groups due to the slow progress in addressing climate change using the conventional politico-scientific approach.

103

Second, there was a general belief that since the scientific uncertainty of the existence and impact of climate change had been settled, there is

94

Hans-Martin F¨ussel „Vulnerability in climate change research: A comprehensive conceptual framework‟(2005) University of

California International and Area Studies Breslauer Symposium (University of California) paper 6, 1-29

95

DM Liverman „Vulnerability to global environmental change‟ in RE Kasperson et al (eds) Understanding global

environmental change: The contributions of risk analysis and management (1990) 27- 44

96

„Climate Change 2007: Working Group II: Impacts, adaptation and vulnerability‟ para 19.1.2.1

97

Resolution 18/22 (n 7 above)

98

OHCHR Report (n 8 above)

99

GFP Submission (n 16 above)

100

IITC Submission (n 17 above) 20, 21, 49, 50, 51

101

Friends of the Earth Submission (n 18 above) 4

102

Limon ( n 5 above) 440-444

103

As above

50

need to shift focus onto the „victims of the problem‟.

104

Finally, people and communities most at risk were uncomfortable with the lack of an accountability mechanism to deal with the phenomenon, its human cause and consequences.

105

Subsequent to the foregoing development, there has been scholarship showing that human vulnerability in the face of climate change adverse impacts is real. For instance, in drawing attention to this fact, Aminzadeh urges that „human beings are the icon of climate change‟.

106

In terms of the human impact of climate change, particularly on indigenous peoples, Cloutier describes indigenous peoples as „the mercury in the barometer‟ of climate change in the

Arctic.

107

This signifies that the plight of vulnerable groups is an appropriate indication of global climate impact and the failing efforts to address a global crisis. Further buttressing this position is the report of the OHCHR which explains that the impact of climate change will be seriously felt by populations living in acutely vulnerable situations „due to factors such as poverty, gender, age, minority status, and disability‟.

108

Examples of such populations as cited in the OHCHR report are women, children and indigenous peoples.

109

Indigenous peoples, according to the

OHCHR report will be disproportionately impacted negatively in view of the fact that they often live in „marginal lands and fragile ecosystems which are particularly sensitive to alterations in the physical environment‟.

110

It is in light of the above that the sentiments for resorting to human rights is expressed in the submissions of developing states and some international organisations. Mauritius, on the relationship between obligations existing under UNFCCC and international human rights treaties, acknowledges, although there is no international human right to healthy environment, that this cannot be said of the African Charter which applies at the regional level.

111

This position on human vulnerability is becoming mainstream in the functioning of initiatives and institutions including the International Council on Human Rights Policy (ICHRP),

112

the Organisation of

104

As above

105

As above

106

As above

107

SC Aminzadeh „A moral imperative: The human rights implications of climate change‟ (2007) 39 Hastings International &

Comparative Law Review 234

108

OHCHR Report (n 8 above)

109

OHCHR Report (n 8 above) para 44

110

OHCHR Report (n 8 above) para 51

111

Mauritius Submission (n 25 above) para d

112

International Council on Human Rights Policy Climate change and human rights: A rough guide. (2008) ( ICHRP Guide)

51

American States,

113

Oxfam International,

114

and Mary Robinson‟s Realizing Rights.

115

These sentiments reflect the position reached in 2007 when a Small Island States Conference held in the Maldives considered and concluded that climate change will negatively impact on human rights in their states.

116

It is not surprising that Mali takes the view in its submission to the OHCHR that „laws and institutions for the defence of human rights must evolve to adapt to the new reality of climate change‟.

117

Similarly, the Report of the OHCHR describes the effect of climate change on a range of rights, including right to life,

118

the right to adequate food,

119

the right to adequate water,

120

the right to health,

121

the right to adequate housing,

122

and the right to selfdetermination.

123

It documents that climate response measures, such as REDD+, and agro-fuel plantations may have implications for human rights.

124

The subsequently passed Resolution

18/22 of 2011 indicates the necessity for including human rights in conceptualising climate change:

Human rights obligations, standards, and principles have the potential to inform and strengthen international and national policymaking in the area of climate change, promoting policy coherence, legitimacy, and sustainable outcomes.

125

It remains to describe the features in human rights that distinguish it as a conceptual basis for climate change.

113

„Human rights and climate change in the Americas‟ AG/RES. 2429 (XXXVIII-O/08), adopted at the 4th plenary session, held on June 3, 2008, (OAS Resolution), where the General Assembly of the OAS admits that „the adverse effects of climate change might have a negative impact on the enjoyment of human rights‟

114

Oxfam International „Climate wrongs and human rights: Putting people at the heart of climate-change policy‟ (2008)

Executive Summary http://www.oxfam.org/sites/www.oxfam.org/files/bp117-climate-wrongs-human-rights-summary-0809.pdf.

(accessed 14 October 2012) which emphasises the need to view climate change as human wrong

115

M Robinson „Climate change and justice‟ (11 December 2006) delivered at Barbara Ward Lecture at Chatham House http://ebookbrowse.com/barbara-ward-lecture-12-11-06-final-pdf-d22367010 (accessed 17 October 2012) where the author argues that the world should no longer be contented with a perspective which views climate change as an issue where „the rich gives charity to the poor‟, rather, it is an issue of global injustice which requires human rights to resolve

116

Limon (n 5 above)

117

Mali Submission (n 24 above)

118

OHCHR Report (n 8 above) paras 21-24

119

OHCHR Report (n 8 above) paras 25-27

120

OHCHR Report (n 8 above) paras 28-30

121

OHCHR Report (n 8 above) pars 31-34

122

OHCHR Report (n 8 above) paras 35-38

123

OHCHR Report (n 8 above) paras 39-41

124

OHCHR Report (n 8 above) paras 65-68

125

Resolution 18/22 (n 7 above) preamble

52

2.3 Human rights as a conceptual approach: Which approach, what features?

As manifest in this section, while there are different schools of thought underpinning the notion of human rights, arguably, the discourse school of human rights is most suitable as a conceptual basis for assessing the adequacy or otherwise of the climate change regulatory framework in relation to the impact of climate change.

2.3.1 Human rights and schools of thought

After an analysis of human rights literature, Dembour identifies four schools of thought which have shaped the meaning of human rights as it is understood today: the natural, deliberative, protest and discourse schools.

126

To the natural school, human rights are rights held by virtue of being human, even though they are enjoyed „as a result of contingent political and legal practices‟.

127

In Dembour‟s words, the scholars in this category generally regard human rights as

„given‟, either by God, the universe, reason, or another transcendental source.

128

The deliberative school, a term coined by Dembour, rejects the natural feature on which „natural‟ scholars hinge their theory and advances a positivist approach to the meaning of human rights. According to this school, human rights are products of social agreement, created by external forces such as legislative acts and/or judicial decisions and then attached to legal persons.

129

The deliberative approach allows space for participation, democratic decisions and fairness.

130

It accommodates the development of rights and their attachment to bearers.

131

As Ife notes, the deliberative school embraces „state obligations tradition‟ where human rights only exist with mechanisms that offer protection.

132

The protest school views human rights as a response to issues of injustice.

133

Hence, human rights must challenge the status quo in favour of the oppressed, the poor and the unprivileged.

134

Since rights must evolve to address suffering, they cannot be achieved without a fight for their

126

Marie-Benedecte Dembour „What are human rights? Four schools of thought‟ (2010) 32 Human Rights Quarterly 1, 2

127

J Donelly „International human rights law: Universal , relative, or relatively universal‟ in MA Baderin & M Ssenyonjo (eds)

International human rights law: Six decades after the UDHR and beyond (2010) 42

128

Dembour (n 126 above) 2-3

129

Dembour (n 126 above) 3

130

Dembour (n 126 above) 5-6

131

A Woodiwiss „The law cannot be enough: Human rights and limits of legalism‟ in Meckled-Garcia & Cali (eds) The

legalisation of human rights: Multidisciplinary perspectives on human rights and human rights law (2006) 32-38, 36

132

J Ife Human rights from below (2009) 74-75

133

Dembour (n 126 above) 7

134

Dembour (n 126 above) 3

53

realisation.

135

As Zeleza notes, it is neither a court nor a book that ended apartheid, colonialism and slavery; meaning that human rights are not the products of concepts but of conflicts.

136

The

„protest‟ theorists maintain, in the words of Baxi, that „suffering and repressed people remain the primary authors of human rights values and visions‟.

137

In the author‟s view, human rights‟ norms and standards involve „participation‟ by national, regional, and global actors who engage human rights as a means to improve practices, processes and institution of governance.

138

The fourth school is the discourse school which contests the notion of rights universality and advocates that rights should be dynamic embodying cultural features.

139

Dembour argues that this group believes that human rights lack answers to the ills of the world and that human rights exist only because people talk about them.

140

Dembour identifies Makau Mutua as a representative of scholars in this school and generally condemns the group as human rights

„nihilists‟.

141

Dembour‟s view of this school is perhaps mistaken, at least with regard to

Mutua.

142

Mutua does not consider human rights as needless but only emphasises that human rights, should not be treated as a „final inflexible truth‟ but rather as an „experimental paradigm, a work in progress‟. Mutua questions human rights movement in that it seeks to foster diversity and difference but only as long as this is achieved within a „liberal paradigm‟.

143

Accordingly, in his view, there is need to review human rights so that its ideal of diversity and difference can have its true meaning.

144

Mutua‟s viewpoint is apt, if understood as a call for dynamic human rights and not necessarily its total rejection. As Ife argues, the discourse school views human rights as dynamic and evolving with universal elements at its core.

145

135

Dembour (n 126 above) 8

136

PT Zeleza „Introduction: The struggle for human rights in Africa‟ in PT Zeleza & PJ McConnaughay (eds) Human rights, the

rule of law and development in Africa (2004) 1-19, 7; N Stammers Human rights and social movements (2009) 2, where the author argues that human rights evolve as part of social movement struggles

137

U Baxi „Politics of reading human rights: Inclusion and exclusion of human rights‟ in Meckled-Garcia & Cali (eds) The

legalisation of human rights: Multidisciplinary perspectives on human rights and human rights law (2006) 182-200, 184

138

Baxi (n 137 above) 191

139

JK Cowan, Marie-Benedicte Dembour & RA Wilson „Introduction‟ in JK Cowan, Marie-Benedicte Dembour &RA Wilson

(eds) Culture and rights: An anthropological perspectives (2001) 1-26, 11

140

Dembour (n 126 above) 4

141

Dembour (n 126 above) 6, 10

142

See also A Sarelin Exploring the role and transformative potential of human rights in development practice and food

security: A case study of Malawi (2012) 54, who although in a different context and focus, also argues that Mutua is misunderstood on this point

143

M Mutua Human rights: A political and cultural critique (2002) 4

144

Mutua (n 143 above) 3-4

145

Ife (n 132 above) 200

54

On four grounds the discourse school of thought best accommodates the different dimensions involved in constructing a human rights approach as a conceptual basis for assessing the adequacy or otherwise of the climate change regulatory framework in the light of the adverse impacts of climate change. First, in recognising that human rights are not static and are constantly amenable to negotiation and improvement,

146

the discourse school arguably explains the development or increase in human rights instruments since the 1948 when the Universal

Declaration on Human Rights (UDHR) was made. It particularly accommodates the emergence of the claim of indigenous peoples‟ movement to „group‟ or „collective‟ rights, including their land rights, a reconstruction of a „stable‟ individual notion of rights which for long has been the universal norm.

147

The understanding of indigenous peoples‟ rights is reflected in the evolvement of instruments aimed at protecting indigenous peoples, which culminated in the adoption of

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007.

148

There are notions which are becoming relevant in the light of climate change which is best explored in the discourse lens of human rights and are discernible in what has been described as the pervasive nature of the climate change phenomenon which includes different role players in its cause and effect.

149

For instance, non-state actors not only are involved in the combustion of fossil fuel,

150

they are also involved in climate change mitigation measures on indigenous peoples‟ lands.

151

These developments challenge the traditional horizontal understanding of human rights as a contract between a state and its citizens and more importantly, calls for a dynamic approach toward the accountability for human rights. Responding to these developments, arguably, is impossible to address except by a regulatory framework which engages human rights in a discourse lens.

146

Mutua (n 143 above) 3-4

147

Boaventua de Sousa Santos & CA Rodriguez-Garavito „Law, politics, and the Subaltern in counter-hegemonic globalisation‟ in Boaventua de Sousa Santos & CA Rodriguez-Garavito (eds) Law, and globalization from below: Towards a cosmopolitan

legality (2005) 1-26

148

United Nations Declaration of Rights of the Indigenous Peoples, adopted by United Nations Resolution 61/295, at 107th plenary meetings, 13 September 2007

149

S McInerney-Lankford „Climate change and human rights: An introduction to legal issues‟ (2009) 33 Harvard Environmental

Law Review 431; Limon (n 5 above) 457

150

R Bratspies „The intersection of international human rights and domestic environmental regulation‟ (2010) 38 Georgia

Journal of International & Comparative Law 649, 652

151

JE Green „Delegation and accountability in the Clean Development Mechanism: The new authority of non-state actors‟ (2008)

4 Journal of International Law & International Relations 21

55

Second, the discourse school, according to Ife, recognises the dynamic role of people in human rights protection and their realisation.

152

In explaining the role of peoples as drivers of rights,

Klotz and Lynch note that the change which challenges conventional, normative, cultural economic, social and political orders is set in motion by the agency of people.

153

In the context of the adverse impacts of climate change, this describes the reality of indigenous peoples‟ activities in relation to concerns over their land rights. In climate discussions, despite their lack of formal participation, indigenous peoples have conceived a platform to emphasise their concerns and draw attention to the adverse impacts of climate change on their land rights, as well as the need for an effective regulatory approach in addressing the trend.

154

Third, even if per Dembour, the discourse school views human rights as relevant only in so far as peoples „talk about it‟,

155

it holds some significance for addressing the challenge posed by the climate change regulatory framework to indigenous peoples. As Amy Sinden argues, human rights „at least at rhetorical level‟ remains the best response of law for addressing the adverse impacts of climate change.

156

There are viewpoints which regard the significance of human rights to climate change not only in terms of a remedial function but as a value to drive the climate change agenda.

157

Human rights can be conceived as a value to shape discussions at all levels of climate change regulations affecting indigenous peoples‟ land rights. It can also serve as a benchmark in assessing the application of the climate change regulatory framework in relation to climate change response measures involving the lands belonging to indigenous peoples. Beside adaptation funds, an example of such measures is the United Nations Reduced

Emissions from Deforestation and forest Degradation (UN-REDD) programme.

158

A discourse

152

Ife (n 132 above) 76-77

153

A Klotz & CM Lynch Strategies for research in constructivist international relations (2007)1; Sarelin (n 142 above)

154

„Tiohtiá:ke Declaration‟ at International Indigenous Peoples Forum on Climate Change, Statement to the State Parties of the

COP 11/MOP 1 of the United Nations Framework Convention on Climate Change (Tiohtiá:ke Declaration); Declaration of the

African Indigenous Peoples‟ Summit on Climate Change‟, Nakuru, Kenya (2009) (Nakuru Declaration); Petition to the Inter-

American Commission on Human Rights seeking relief from violations resulting from global warming caused by acts and omissions of the United States on behalf of all Inuit of the Arctic Regions of the United States and Canada http://www.ciel.org/Publications/ICC_Petition_7Dec05.pdf (Inuit Petition) (accessed 10 February 2012), where the Inuit attempted litigation to hold United States responsible for the transboundary effect of its climate change policy.

155

Dembour (n 126 above) 7

156

A Sinden „Climate change and human rights‟ (2008) 27 Journal of Land Resources & Environmental Law 257

157

S McInerney-Lankford, Mac Darrow &L Rajamani Human rights and climate change: A review of the international legal

dimensions (2011) 55-63; Limon (n 5 above) 458

158

Centre for International Environmental Law Know your rights related to REDD+: A guide for indigenous and local

community leaders (2014) 5; J Willem den Besten, B Arts & P Verkooijen „The evolution of REDD+: An analysis of discursiveinstitutional dynamics‟ (2014) 35 Environmental Science and Policy 40; see generally chapters 4 and 5 of this study where the initiative is examined in detail

56

understanding of human rights can help in bringing out the adequacy or otherwise of the regulatory framework asociated with these initiatives in relation to indigenous peoples‟ rights.

Finally, as proof of its dynamic utility, human rights in its discourse lens has been applied in relation to food security,

159

international trade,

160

and climate change.

161

In relation to these areas, the literature has constructed and applied a human rights approach based on core principles of human rights, namely, universality and inalienability, indivisibility, interdependence and inter-relatedness non-discrimination and equality, participation and inclusion, and accountability.

162

Against this backdrop, it is important to explore how these principles distinguish human rights as a conceptual basis for tackling the adverse impacts of climate change, illustrating different aspects or concerns in relation to the adequacy or otherwise of the climate change regulatory framework. The discussion in the section below, for the purpose of convenience, is carried out under the following heads, namely, core human rights principles and the intersection with environmental law principles.

2.3.2 Core human rights principles

Human rights entails principles, namely, universality and indivisibility, interdependency and inter-relatedness, non-discrimination and equality, participation, and accountability which are essential tools for examining the regulatory framework which aims at tackling the adverse impacts of climate change in relation to indigenous peoples‟ lands. As subjects and right holders under international human rights law, indigenous peoples‟ issues about lands can benefit from

159

Sarelin (n 142 above)

160

S Joseph Blame it on the WTO? A human rights critique (2011) 13-55; SM Walker „The future of human rights impact assessments of trade agreements‟ (2009) 35 School of Human Rights Research Series 1-39

161

Moritz von Normann „Does a human rights-based approach to climate change lead to ecological justice?‟ (2012) delivered at

Lund Conference on Earth System Governance „Towards a just and legitimate earth system governance: Addressing inequalities „

April 18-20, 2012; J Schade Human rights, climate change, and climate policies in Kenya: How climate variability and agrofuel

expansion impact on the enjoyment of human in the Tana Delta (2011) Research Mission Report of a joint effort by COMCAD

(Bielefeld University), FIAN Germany, KYF, and CEMIRIDE 1-69; CIEL „Analysis of human rights language in the Cancun

Agreements (UNFCCC 16th session of the Conference of the Parties)‟ (2011); McInerney-Lankford et al ( n 157 above); MA

Orellana, M Kothari & S Chaudhry „Climate change in the work of the Committee on Economic, Social and Cultural Rights‟

(2010) 1-34; S Kravchenko „Procedural rights as a crucial tool to combat climate change‟ (2010) 38 Georgia Journal of

International & Comparative Law 613; CIEL Human rights and climate change: Practical steps for implementation (2009);

Aminzadeh (n 107 above)

162

These principles are generally described in United Nations The human rights based approach to development co-

operation:Towards a common understanding among UN Agencies United Nations Development Group, 2003 http://hrbaportal.org/the-human-rights-based-approach-to-development-co-operation-towards-a-common-understanding-amongun-agencies (accessed 18 November 2012) (Human rights based approach principles); the principles are also well described in J

Hausermann A human rights approach to development (1998) 23-38, and applied in scholarships including, Sarelin (n 142 above)

109-134 on the realisation of right to food; Walker (n 160 above) 34-5 in relation to international trade; and in relation to climate change, Moritz von Normann (n 161 above) and Schade (n 161 above) 9-10

57

the application of core human rights principles in assessing the climate change regulatory framework. With respect to indigenous peoples, these principles are particularly guaranteed in separate and general international human rights instruments and their monitoring bodies.

163

2.3.2.1 Universality and inalienability

The principle of universality and inalienability connotes that human rights apply to everyone everywhere in the world and that negotiations or „trade-offs‟ should not result in human rights violations.

164

The notion of universality and inalienability, a core feature of the human rights approach, is helpful in advancing the understanding that where a regulatory framework proves inadequate in safeguarding indigenous peoples‟ lands in the light of the adverse impacts of climate change, this questions the general scope of the universality and inalienability of human rights. Importantly, the analysis of the climate change regulatory framework with reference to indigenous peoples‟ lands can benefit from the universal and inalienable nature of human rights.

Hardly a single has not ratified at least one instrument which is relevant to indigenous peoples, particularly their land rights.

For instance, just about every state has ratified at least one of the nine core international human rights treaties.

165

The pillar covenant of human rights, namely the International Covenant on

Civil and Political Rights (ICCPR),

166 and the International Covenant on Economic, Social and

Cultural Rights (ICESCR),

167

have 164 and 160 parties respectively.

168

The Convention on the

Elimination of Racial Discrimination (CERD) has no less than 175 parties and is of significance to indigenous peoples.

169

Signatories to these instruments include states in Africa and, with exception of China and United States in the case of the ICESCR, it includes most developed

163

G Alfreðsson „Human rights and indigenous rights‟ in N Loukacheva (ed) Polar law textbook (2010)147

164

Ife (n 132 above) 84; Vienna Declaration and Programme of Action, adopted at World Conference on Human Rights in

Vienna 1993 UN doc.A/CONF.157/23 paras 1 and 5; the idea of universality of human rights is however challenged by relativists who view that human rights vary from culture to culture, see SE Merry Human rights and gender violence: Translating

international law into local justice (2006) 40; however human rights is at least universal in the sense that it has become a subject of attention all over the world, see Donelly (n 127 above ) 31, who argues, in my view, rightly that universality remains the core feature of human rights

165

http://www2.ohchr.org/english/law/ (accessed 2 January 2013); see also McInerney-Lankford (n 157 above) 4

166

International Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966, 9 U.N.T.S. 171

167

International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966

168

McInerney-Lankford (n 157 above) 4

169

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en accessed (2 January

2013); F Mackay „Indigenous peoples‟ rights and the UN Committee on the Elimination of Racial Discrimination‟ in S Dersso

(ed) Perspectives on the rights of minorities and indigenous peoples in Africa (2010) 155-202

58

nations of the world which have or are pressured for commitments under the climate change regulatory framework.

170

Thus, for any given state, there is at least one human right instrument upon which a claim relating to indigenous peoples‟ land rights in the face of adverse effects of climate change can be based. It also involves UNDRIP even if it is a declaration which some states in Africa are reluctant to adopt.

171

As Alfreðsson has argued the provisions of a declaration such as UNDRIP may operate either in whole or in part as international customary law, particularly with regard to equality, non-discrimination and the prohibition of torture.

172

The monitoring bodies of the United Nations‟ institutions, such as the Human Rights Committee

(HRC) have on a number of occasions in their concluding remarks pronounced on issues relating to indigenous peoples.

173

A similar practice is evident in the activities of the Committee on

Economic, Social and Cultural Rights (CESCR), the Committee on the Rights of the Child

(CRC),

174

and the African Commission on Human and Peoples‟ Rights (the Commission).

175

Issues in relation to indigenous peoples have featured in the General Comments of the

CESCR,

176

and the HRC, at least in engaging states such as Rwanda.

177

The CERD has indeed noted that encroachment on the lands of indigenous peoples or forced displacement can trigger the use of its early warning procedure.

178

It has equally featured the plight of indigenous peoples

170

McInerney-Lankford (n 157 above) 4

171

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General Assembly on 13

September 2007, with 143 votes in support and four in opposition . 11 states abstained from voting while thirty four states were absent from the vote; see AK Barume „Responding to the concerns of the African States‟ in C Charters & R Stavenhagen (eds)

Making the Declaration work: The United Nations Declaration on the Rights of Indigenous Peoples (2009) IWGIA 170-182,

180, explaining that 15 African nations were not available during the voting exercise for the adoption of UNDRIP while Burundi,

Kenya and Nigeria abstained from voting ; also see AG Newman „Africa and the United Nations Declaration on the Rights of the

Indigenous Peoples‟ in Charters & Stavenhagen (above) 141-154

172

Alfreðsson (n 163 above) 149

173

Among others, see the Concluding Observations of the Human Rights Committee, Canada, 20 April 2006, UN Doc

CCPR/C/CAN/CO/5; Brazil, 1 December 2005, UN Doc CCPR/C/BRA/CO/2

174

„Concluding observations: Committee on the Rights of the Child, Nigeria‟, 44th session, RC/C/NGA/CO/3-4, 25 May-11 June

2010 para 77; also see Concluding Observations on Cameroon, Committee on the Rights of the Child ,53rd session,

CRC/C/CMR/CO/2 ,11-29 January 2010

175

„Concluding Observations of the Committee on Economic, Social and Cultural Rights: Russian Federation‟, 12 December

2003 UN Doc E/C.12/1/Add.94, paras 11 and 39; Mackay (n 169 above) 161

176

United Nations General Comment No. 15, the right to water, arts 11 and 12

177

„Concluding observations on Rwanda‟, Human Rights Committee 95th session CCPR/C/RWA/CO/3 7 May 2009 New York,

15 March-3 April 2009 para 22

178

Guidelines for the Use of the Early Warning and Urgent Action Procedure, advanced unedited version, adopted by the

Committee on the Elimination of Racial Discrimination, August 2007, 3

59

in its concluding remarks in relation to states such as Rwanda,

179

Canada,

180

Sweden,

181 and

Suriname

182

in relation to land rights.

183

Other institutions include the HRC which in its past activities has featured the issues of indigenous peoples in its concluding remarks and observations on states, including Cameroon,

184

Nigeria,

185

and Botswana.

186

Similarly, the agenda of mechanisms such as the Working Group of

Indigenous Populations,

187

Permanent Forum on Indigenous Issues,

188

and Special Rapporteur for Indigenous Peoples,

189

are known for issues relating to indigenous peoples. Arguably, the notion of the universality and inalienability of human rights is reflected in the functionings of the foregoing mechanisms and may be useful in examining the climate change regulatory framework in relation to indigenous peoples‟ lands in Africa.

At the African regional level there is a human rights framework with the potential to address the adequacy or otherwise of the climate change regulatory framework on the adverse impacts of climate change on indigenous peoples‟ lands. The Commission offers an important institutional platform specifically related to indigenous peoples‟ affairs with the creation in 2000 of the

Working Group on Indigenous Populations or Communities in Africa (Working Group).

190

Indigenous peoples‟ rights have featured in the main procedures of the Commission, namely, state reporting and communication and resolutions/guidelines.

191

In its concluding remarks on

179

„Concluding observations on Rwanda‟, Committee on the Elimination of Racial Discrimination 78th session

CERD/C/RWA/CO/13-17, 14 February–11 March 2011, Consideration of reports submitted by state parties under article 9 of the

Convention, para 11

180

„Concluding observations on Canada‟, Committee on the Elimination of Racial Discrimination 25 May 2007,

CERD/C/CAN/CO/18, para 22

181

„Concluding observations on Sweden‟, Committee on the Elimination of Racial Discrimination 10 May 2004,

CERD/C/64/CO/8, para 16

182

„Concluding observations on Surimane‟, Committee on the Elimination of Racial Discrimination 12 March 2004,

CERD/C/64/CO/9, para 14

183

See generally on the activities of the CERD, Mackay (n 169 above)

184

Human Rights Council 11th session Agenda item 6 Universal periodic review Report of the Working Group on the Universal

Periodic Review, 12 October 2009, A/HRC/11/21, para 46

185

Human Rights Council 11th session Universal Periodic Review Report of the Working Group on the Universal Periodic

Review Nigeria, 5 October 2009, A/HRC/11/26, paras 40, 58 and 65

186

Human Rights Council, 10th session, Universal Periodic Review, Report of the Working Group on the Universal Periodic

Review, Botswana A/HRC/10/69,13 January 2009, para 35

187

Established pursuant to Economic and Social Council Resolution 1982/34 as a subsidiary organ of the Sub-Commission on the

Promotion and Protection of Human rights, see F Viljoen „Reflections on the legal protection of indigenous peoples rights in

Africa‟ in S Dersso (ed) Perspectives on the rights of minorities and indigenous peoples in Africa (2010)75-94, 80

188

Established as an advisory body to ECOSOC, see, Viljoen (n 187 above) 80

189

This was established in 2001 with the mandate to study issues impacting on the human rights of the indigenous peoples

190

Resolution on the Adoption of the „Report of the African Commission‟s Working Group on Indigenous Populations/

Communities, 20 November 2003, 17th Annual Activity Report of the Commission

191

Viljoen (n 187 above) 87

60

states such as Namibia,

192

South Africa,

193

Uganda,

194

Cameroon,

195

and the communication on

Kenya,

196

the Commission focuses attention on different aspects of the impact of state activities on indigenous peoples‟ human rights.

197

Arguably, the widespread presence or availability of international norms and institutions which focus on indigenous peoples is a justification for employing a human rights approach as a conceptual basis for examining the adequacy or otherwise of the climate change regulatory framework in addressing the adverse impacts of climate change in relation to indigenous peoples‟ lands.

198

2.3.2.2 Interdependency and inter-relatedness

Human rights are interdependent, inter-related and indivisible in the sense that the realisation of a given right depends on the realisation of other rights. By this is meant that civil, cultural, economic, political and social rights are equal in status and cannot be ranked or placed in a hierarchy of importance, even though the nature of obligations due by duty-bearers may differ.

199

The notion of interdependency or interrelatedness of human rights is a feature with an added value in analysing the adequacy or otherwise of the climate change regulatory framework in relation to the protection of indigenous peoples in the light of adverse climate change challenges.

There is a valid basis for this viewpoint. Not least in the case of indigenous peoples is that the notion of land rights implicates a range of interdependent and interrelated rights, as can be gleaned from instruments relating to indigenous peoples‟ land rights. ILO Convention 169 contains interrelated provisions on the rights to land of indigenous peoples which extend over a range of human rights, including economic, as well as civil and political rights. For instance, article 13(1) of the Convention requires governments to recognise and respect the special

192

„Concluding observations for the report of Namibia‟, issued after examination at the 29th session

193

„Conclusions and Recommendations on the 1st Periodic Report of the Republic of South Africa‟, 38th session of the

Commission, 21 November-5 December 2005

194

Supplementary Report on the 1st Periodic Report of Uganda to the African Commission on Human and Peoples‟ Rights, submitted by the United Organisation for Batwa Development in Uganda, the Forest Peoples Programme and International

Working Group for Indigenous Affairs

195

„Concluding Observations and Recommendations on the Second Periodic Report of the Republic of Cameroon‟, 47th ordinary session 12-26 May 2010, in Banjul, The Gambia Consideration of Reports submitted by state parties under the Terms of Article

62 of the African Charter on Human and Peoples‟ Rights, paras 36 and 37

196

Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois

Welfare Council) (Endorois case) 27th Activity Report: June- November 2009

197

Viljoen (n 187 above) 88

198

See generally on the activities of the CERD, Mackay (n 169 above)

199

DJ Whelan Indivisible human rights: A history (2010) 4; M Scheinin „Characteristics of human rights norms‟ in C Krause &

M Scheinin (eds) International protection of human rights: A textbook (2009) 24

61

spiritual, cultural and economic relationship that indigenous peoples have with their lands and territories. Indigenous peoples‟ lands include the notion of environment, based on article 13(2) of ILO Convention 169 which defines the term „lands‟ to include „the concept of territories, which covers the total environment of the areas inhabited by indigenous peoples‟. According to article 7(1), the notion of indigenous peoples‟ land rights is linked to the right to self- determined development and article 15(1) provides that indigenous peoples have the right to enjoy natural resources particularly through their participation in „the use, management and conservation of these resources‟. In relation to projects on their lands, ILO Convention 169 stipulates that relocation must be done only when it is inevitable, and with the consent of indigenous peoples.

200

Similar evidence on the interrelatedness and interdependency of rights to land is visible in the

UNDRIP. Article 25 of UNDRIP affirms that indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with „their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources‟. Article 26(1) of UNDRIP affirms that indigenous peoples have the rights to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or occupied, while article 26(2) provides that states‟ duty to guarantee the right to land must be realised in respect of tradition and the land tenure systems of indigenous peoples. The UNDRIP also contains related rights, such as conservation,

201

benefit-sharing,

202

participation,

203

access to justice,

204

and cooperation,

205

which are connected with the enjoyment of the land rights of indigenous peoples in the context of climate change.

At the regional level, there is evidence of the interrelated and interdependent conception of rights to land that may be useful in assessing the climate change regulatory framework in relation to the protection of indigenous peoples‟ lands in the light of the adverse impacts of climate change.

This can be gleaned from the approach in the report of the Working Group which describes the interdependency of indigenous peoples‟ lands with other rights as follows:

200

Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169), entered into force 5

September 1991 (ILO Convention 169) art 16(2)

201

UNDRIP, arts 24 and 29

202

UNDRIP, arts 10, 28 which provides for compensation; also arts 11(2) and 28(1) on restitution

203

UNDRIP, arts 5, 18, 27 and 41

204

UNDRIP, art 40

205

UNDRIP, arts 38 and 39

62

The protection of rights to land and natural resources is fundamental to the survival of indigenous communities in Africa and such protection relates to ...Articles 20, 21, 22 and 24 of the African Charter

Article 20 of the African Charter provides for the right to existence and self-determination, article 21 stipulates the right to freely dispose of wealth and resources and, in the case of dispossession, the right to recover their property and be compensated. Article 22 of the African

Charter safeguards the right to development and equal enjoyment of a common heritage, and article 24 guarantees the right to environment. These interrelated normative constructions of the rights to land are relevant in assessing the climate change regulatory framework in relation to the adverse impacts of climate change on indigenous peoples‟ lands.

For instance, the adequacy of a normative framework is crucial in implementing UN-REDD+ on the land of indigenous peoples in that there is foreseeable set of overlapping and interconnected negative impacts touching areas including their welfare, livelihoods, social order, identity, and culture.

206

These interconnected impacts potentially implicate a notion of interrelated or interdependent human rights. While not directly related to climate change context, there is evidence that this is possible considering that the jurisprudence of regional human rights mechanisms has also connected the rights to land of indigenous peoples to such rights as the rights to property,

207

life, liberty and personal security,

208

subsistence,

209

food security,

210

206

Milan Declaration of the 6th International Indigenous Peoples Forum on Climate Change , COP 9, UNFCCC, Milan, Italy,

29-30 November 2003, (Milan Declaration) para 5; E Boyd, M Gutierrez & M Chang „Small-scale forest carbon projects:

Adapting CDM to low income communities‟ (2007) 17 Global Environmental Change 250-259; „Report on the impacts of climate change mitigation measures on indigenous peoples on their territories and lands‟ E/C 19/2008/10 (Unedited version)

(Indigenous peoples climate change mitigation report) paras 4 and 5; GFP Submission ( n 16 above) 3-5; P Anderson „Prior, and

informed consent in REDD+‟ (2011) 8; Greenpeace Briefing „Human rights and the climate crisis: Acting today to prevent tragedy tomorrow (Greenpeace report) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Greenpeace_HR_ClimateCrisis.pdf (accessed 27 October

2012) para 31; B Blom, T Sunderland & D Murdiyarso „Getting REDD to work locally: Lessons learned from integrated conservation and development projects‟ (2010) 13 Environmental Science Policy 164-172, 169; K Sena „REDD and indigenous peoples‟ rights in Africa‟ IWGIA REDD and indigenous peoples (2009) Indigenous Affairs 10-20

207

In a number of cases from regional human rights system, particularly the Inter American and African system, the issues relating to indigenous peoples‟ right to land have been made while alleging a violation of right to property, see See Saramaka

People v Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, para 95 ( 28 November 2007) (Suriname case); Indigenous

Community Yakye Axa v Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 146, para 143 (17 June 2005); Maya Indigenous Community

of the Toledo District v Belize, Case 12.053, Inter-Am.C.H.R., Report No. 40/04, EA/Ser.L/V/II.122 doc. 5 rev., para 113 (2004);

Indigenous Community of Awas Tingni v Nicaragua, Inter-Am. Ct. H.R. (Ser. C) No. 79, para 148 ( 31August 2001) (Awas

Tingni case)

208

Inter-American Court Communidad Yanomami v Brazil, decision of 5 March 1985, Case 7615, (Yanomami case), reprinted in

Inter-American Commission on Human Rights and Inter-American Court of Human Rights Inter American Yearbook of Human

Rights (1985)

209

Communication 167/1984 HRC Chief Bernard Ominayak and the Lubicon Lake Band v Canada, decision of 10 May 1990,

UN Doc CCPR/C/38/D/167/1984 para 33 (Lubicon Lake Band case)

63

health,

211

and spirituality,

212

and a safe and healthy environment.

213

The main focus of this study is on land rights, but the principle of interdependency or interrelatedness of human rights allows for a consideration of other aspects of the rights of indigenous peoples in so far as they relate to the adequacy or otherwise of the climate change regulatory framework.

2.3.2.3 Equity and non-discrimination

According to Swepston and Alfreðsson, the prohibition of discrimination is a crucial aspect of human rights law.

214

The principle of non-discrimination and equality holds that human rights should be enjoyed by all human beings without discrimination of any kind, such as race, property, birth or any other status.

215

The land rights of indigenous peoples in the light of the adequacy or otherwise of the climate change regulatory framework raise issues which can benefit from the human rights principle of non-discrimination and equity. First, climate change mitigation projects such as the REDD+ on indigenous peoples‟ lands raise issues around equal and non-discriminatory treatment in matters such as the ownership, use and management of land, as well as access to information and benefit-sharing.

216

As the climate situation worsens, there is evidence that poorer nations, and the poor populations within these nations, will be worst affected.

217

Due to discrimination, indigenous peoples are marginalised and are often regarded as belonging to the „poorest of the poor‟.

218

A major manifestation and catalyst of discrimination

210

„The right to food‟ A/60/350, 12 September 2005, 8-21 where the Special Rapporteur on the right to food highlighted the centrality of land to the right to food of indigenous peoples http://www.un.org/en/ecosoc/docs/pdfs/summary%2020land%20and%20vulnerable%20people%202%20june.pdf (accessed 25

January 2012)

211

Yanomami case (n 208 above)

212

Sesana and others v Attorney General, High Court Judgment, ILDC 665 (BW 2006) where the Court held that there is „a deeply spiritual relationship between indigenous peoples and their land‟

213

214

„Indigenous peoples‟ right to adequate housing‟ United Nations Housing Rights Programme Report No. 7 OHCHR (2005) 9

L Swepston & G Alfreðsson „The rights of indigenous peoples and the contribution by Erica Daes‟ in GS Alfreðsson &M

Stavropoulou (eds) Justice pending: Indigenous peoples and other good causes: Essays in honour of Erica-Irene Daes (2000) 74

215

Sarelin (n 142 above) 112; The World Bank World Development Report 2006: Equity and development (2006) 27

216

See Anderson ( n 206 above) 8-10; LA German et al „Forest governance and decentralisation in Africa: Linking local, regional and global dialogues‟ in LA German, A Karsenty & A Tiani (eds) Governing Africa‟s forest in a globalised world

(2010) 1-20, 12 and 13

217

Intergovernmental Panel on Climate Change, Climate Change 2007: Fourth Assessment Report (Summary for policy maker)

(2007) 8; McInerney-Lankford et al (n 157 above) 1

218

GM Wachira „Indigenous peoples‟ rights to land and natural resources‟ (2010) in S Dersso (ed) Perspectives on the rights of

minorities and indigenous peoples in Africa (2010) 298-299; Independent Commission on International Humanitarian Issues

Indigenous peoples: A global quest for justice (1987) 16-17

64

and inequality „has been the failure of state authorities to recognise customary indigenous forms of land possession and use‟.

219

In international human rights law there exists the normative basis for addressing the equity and non-discrimination issues around the adequacy or otherwise of the climate change regulatory framework to address the impacts of climate change on indigenous peoples‟ land rights. Under the UNDRIP, the relevant norms of human rights which can be useful to indigenous peoples‟ land rights include rights to conservation,

220

benefit-sharing,

221

and the right of states to natural resources.

222

There are other instruments in international human rights law which offer a strong basis for the principle of equity and non-discrimination. These include the Universal Declaration of Human Rights,

223

ICCPR,

224

ICESCR,

225

Declaration of Principles on Equality,

226

and the

Convention on the Elimination of all Forms of Racial Discrimination (CERD). The treaty monitoring bodies for these institutions, notably the ICCPR, ICESCR and CERD have also pointed out that states have obligations in addressing discrimination. Particularly, a review of the conclusions of UN Human Rights treaty bodies issued between 2002 and 2006 has shown a finding of discrimination resulting from violations of indigenous peoples‟ rights to own and control land.

227

Similarly, non-recognition of the land rights of indigenous peoples and the potential in this to establish a case for discrimination has been the focus of the United Nations Committee on the

Elimination of Racial Discrimination (UNCERD). In its General Recommendations XX111 of

1997, the UNCERD requires:

219

Surimane case (n 207 above) para 235; and the concurring opinion of Judge Sergio Garcia Ramirez in the judgment on the merits and reparations in Awas Tingni case (n 207 above) paras 12-44, 13 (holding that lack of recognition of the property right of the indigenous peoples according to customary law „would create an inequality that is utterly antithetical to the principles and to the purposes that inspire the hemispheric system for the protection of human rights‟

220

UNDRIP, arts 24 and 29

221

UNDRIP, arts 10 and 28 which provide for compensation; also arts 11(2) and 28(1) on restitution

222

S Adelman „Rethinking human rights: The impact of climate change on the dominant discourse‟ in S Humphreys (ed) Human

rights and climate change (2010) 169

223

Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly in Paris on 10 December 1948,

General Assembly resolution 217 A (III)

224

ICCPR, arts 2(1), 3, 4(1) and 26

225

ICESCR, arts 2(2) and (3)

226

Declaration of Principles on Equality (2008) http://www.equalrightstrust.org/ertdocumentbank/Pages%20from%20Declaration%20perfect%20principle.pdf (accessed 10

November 2013) principle 5

227

Mackay ( n 169 above) 156; also see F Mackay (ed) Indigenous peoples and United Nations treaty bodies: A compilation of

United Nations treaty body jurisprudence 1993-2004

65

State parties to recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right to restitution should be subsisted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.

228

At the regional level, in addition to guaranteeing the rights to non-discrimination and equality, the Working Group has in its report drawn attention to the trend on the discrimination against indigenous peoples in relation to their land rights.

229

In fact, according to the Working Group,

„the rampant discrimination towards indigenous peoples is a violation of the African Charter‟.

230

Equity and non-discrimination as a human rights principle is useful in the context of access to information on climate change and climate-related projects. Particularly, indigenous peoples should be entitled to appropriate information and participation concerning the REDD+ projects which involve their land. Also, indigenous peoples should be able to access information regarding the adverse effects of projects on their land. These may include information in relation to the nature of project, adaptation and mitigation funds, and benefit-sharing.

In relation to the foregoing there are relevant provisions regarding access to information without discrimination. Article 19 of the UDHR recognises the right to freedom of opinion which includes seeking, receiving and the impartation of information and ideas.

231

In almost similar language this is provided under the ICCPR.

232

In 2011, the HRC issued a new General Comment further detailing the rights under article 19 of the ICCPR. According to the General Comment, with regards to right of access to information, „state parties should proactively put in the public domain Government information of public interest‟.

233

At the regional level, the right to information is safeguarded under the European Convention for the Protection of Human Rights and Fundamental Freedoms,

234

the American Convention on Human Rights,

235

and the African

228

UN Committee on the Elimination of Racial Discrimination General Recommendations XXIII (51) concerning indigenous peoples, adopted at the 1235th meeting, 18 August 1997 UN Doc CERD/C/51/Misc.13/Rev.4.para 3

229

Report of the African Commission‟s Working Group of Experts on Indigenous Populations/Communities (2005) (Working

Group Report), adopted by the African Commission at its 28th ordinary session 35-36

230

Working Group Report (n 229 above) 34

231

UDHR, art 19

232

ICCPR, art 19(2)

233

General Comment No. 34, CCPR/C/G/34 (2011) para 18

234

European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 art 10

66

Charter.

236

According to the African Commission on Human and Peoples' Rights Declaration of

Principles on Freedom of Expression in Africa, freedom of expression entails access to information without discrimination.

237

To further strengthen the provision on the right to information, the Commission approves that a process be put in place by the Special Rapporteur to expand article 4 of the Declaration of Principles on Freedom of Expression in Africa to include access to information.

238

Accordingly, the Commission has crafted a model law on access to information.

239

Although a non-binding document, the model law explains article 9 of the African Charter which deals with access to information. Hence, while there is no express right to information under the UNDRIP, this gap can be filled by a combined reading of these provisions along with the express guarantees on information in other applicable instruments of international human rights law.

Arguably, such a construction would allow indigenous peoples access to a whole range of information regarding climate change, its adverse impacts, and climate change response measures on their land.

While the claimants involved are not indigenous peoples, the decision in Claude Reyes v

Chile,

240

is relevant to accessing information on climate change and climate change response projects such as the REDD+. In that case petitioners alleged that Chile violated their right to freedom of expression and free access to state-held information when the Chilean Committee on

Foreign Investment failed to release information about a deforestation project that the petitioners wanted to evaluate in terms of its environmental impact.

241

The Inter-American Commission was of the view that Chile has a positive obligation to provide information to the public in such circumstances. When the case was eventually forwarded to the Inter-American Court on Human

235

American Convention on Human Rights, 22 November 1969, 1144 U.N.T.S. 123, art 13

236

African Charter, art 9(1) provides that every individual shall have the right to receive information while art 9(2) stipulates that every individual shall have the right to express and disseminate his opinions within the law

237

Declaration of Principles on Freedom of Expression in Africa, African Commission on Human and Peoples' Rights, 32nd

Sess. (23 October 2002) http://www.achpr.org/sessions/32nd/resolutions/62/ (accessed 15 October 2012) sec I(2)

238

„Resolution to modify the Declaration of Principles on Freedom of Expression to include Access to Information and Request for a Commemorative Day on Freedom of Information‟, adopted at the African Commission on Human and Peoples‟ Rights meeting at its 50th ordinary session held in Banjul, The Gambia, from 18 April- 2 May 2012 http://www.achpr.org/sessions/51st/resolutions/222/ (accessed 16 October 2012)

239 „ Model law on access to information for Africa, prepared by the African Commission on Human and Peoples‟ Rights‟, April

2013

240

Marcel Claude Reyes et al v Chile, Case 12.108, Report No. 60/03, Inter-Am.Comm. H.R., OEA/Ser.L/V/II.118 Doc. 70 rev.

2 (2003) (Reyes case) para 2

241

As above

67

Rights in 2006, it was held, absent legitimate restriction, that every individual is entitled to receive information and the positive obligation to provide it.

242

In all, the human rights principles of equity and discrimination require that a regulatory framework put in place to address the impacts of climate change should not be discriminatory or inequitable.

2.3.2.4 Participation

The principle of participation holds that every person and all peoples are entitled to active, free and meaningful participation in, contribution to, and enjoyment of civil, economic, social, cultural and political development in which human rights can be realised.

243

There are relevant norms on participation which the emerging climate change regulatory framework should embody. The absence of such principles will make it difficult to ground certain of the claims of indigenous peoples including their need to be involved in climate change negotiation. Through the principle of participation there is basis for expecting the climate change regulatory framework to enable the involvement of indigenous peoples in the discussions pertaining to activities on their land.

The principle of participation and inclusion is entrenched in human rights instruments including the UNDRIP. Article 18 of UNDRIP provides:

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

244

Article 21 of the UDHR provides that everyone has the right to take part in the governance of his or her country.

245

This is also guaranteed under article 25 of ICCPR which provides that citizens shall have the right, without unreasonable restrictions, „to take part in the conduct of public affairs, directly or through freely chosen representatives‟.

246

It also provides for participation in

242

Reyes case (n 240 above)

243

Human rights based approach principles (n 162 above); Hausermann (n 162 above); L VeneKlasen, V Miller et al Rights-

based approaches and beyond: Challenges of linking rights and participation (2004) 5

244

Also see UNDRIP arts 5, 27 and 41

245

UDHR, art 21

246

ICCPR, art 25

68

terms of taking part in the conduct of public affairs and access to public service in a given country.

247

The HRC has interpreted „conduct of public affairs‟ broadly to include „exercise of political power and in particular the exercise of legislative, executive and administrative powers‟ extending to the formulation and implementation of policy at international, regional and national levels.

248

In its General Recommendation XXIII on the Rights of Indigenous Peoples, the CERD calls upon state parties: to 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.

There are provisions in the regional human rights instruments, namely the American

Declaration,

249

Inter-American Convention,

250

and the African Charter,

251

on the right to participate in decision-making.

Thus the inference that can be drawn from the above discussion is that the principles of participation and inclusion are core themes in human rights instruments and jurisprudence, and can be useful in assessing the adequacy or otherwise of the climate change regulatory framework in relation to the protection of indigenous peoples in the light of climate change challenge.

2.3.2.5 Accountability

The notion of accountability assumes actors, including states, as the duty bearers of human rights with obligations to respect, protect and fulfil internationally recognised human rights.

Furthermore, citizens as rights holders, should have a right to a remedy in the case of a proven violation of rights.

252

Accountability is a core element that distinguishes human rights as a conceptual basis for assessing the climate change regulatory framework. Under international human rights law, citizens or persons are the right holders, whereas, the state is the major bearer of obligations.

253

Unlike international environmental law, in which duties or commitments are

247

As above

248

Human Rights Committee, General Comment No. 25 (1996) , UN doc. CCPR/C/21/Rev.1/Add.7, para 5

249

American Declaration, art 20

250

Inter-American Convention, art 23

251

African Charter, art 13

252

Human rights based approach principles (n 162 above); Hausermann (n 162 above); N Peter „Taking accountability into account: The debate so far‟ in P Newell & J Wheeler (eds) Rights, resources and the politics of accountability (2006) 40

253

O O‟Neili „The dark side of human rights‟ (2005) 81 International Affairs 427

69

held horizontally, between state and state,

254

duties of states generally exist with regard to their citizens under international human rights law.

255

There are three levels of obligations, namely, to

respect, to protect, and to fulfil human rights.

256

These obligations can be useful in the absence or weakness of effective safeguards under the climate change regulatory framework to tackle the adverse effects of climate change on indigenous peoples‟ lands.

In the context of indigenous peoples‟ land rights, the obligation to „respect‟ signifies that states must refrain from measures which infringe on the rights of indigenous peoples‟ in relation to their land.

257

It is less clear whether the „obligation to respect‟ supports an interpretation that requires states to refrain from such acts which might affect human rights, in this case, the human rights of indigenous peoples in another state. A similar dilemma is posed by the obligation to

„protect‟ which requires states to prevent private actors from infringing the rights of indigenous peoples. It is debatable whether human rights is able to respond to wrongs committed by nonstate actors.

258

Yet, the depredations of climate change primarily result from private economic activity, that is, operations mostly by non-state actors, which make the need for human rights application compelling.

259

A similar challenge is noticeable in respect of the obligation to „fulfil‟ which requires the state to cultivate policies and programmes that inspire the progressive realisation of human rights, and to refrain from actions that weaken the realisation of rights.

260

The issue arises as to whether a state has the duty not to formulate a regulatory framework which justifies activities that can negatively impact on the realisation of rights, in this case indigenous peoples‟ land rights, in another nation.

The Inuit petition tried to establish that such an extraterritorial duty or obligation exists, but unsuccessfully.

261

However, there is emerging a reconstruction of the accountability regime to make extraterritorial application of human rights possible. In this regard, the Maastricht

254

UNFCCC, art 3(1); Limon (n 5 above) 458; P Cullet „Definition of an environmental right in a human rights context‟(1995)

13 Netherlands Quarterly of Human Rights 25

255

McInerney-Lankford (n 157 above)

256

IE Koch „Dichotomies, trichotomies or waves of duties?‟(2005) 5 Human Rights Law Review 81

257

General Comment No. 31 [80] Nature of the General Legal Obligation Imposed on state parties to the Covenant: 26.05.2004.

CCPR/C/21/Rev.1/Add.13 HRC (United Nations General Comment 31) paras 5-6

258

RM Bratspies „The intersection of international human rights and domestic environmental regulation‟ (2010) 38 Georgia

Journal of International & Comparative Law 649

259

Bratspies (n 258 above) 652

260

United Nations General Comment No. 31 para 7; S Skogly Beyond national borders: States‟ human rights obligations in

international co-operation (2006) 60-61

261

Inuit Petition (n 154 above)

70

Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural

Rights can be helpful in providing for extraterritorial obligations (ETOs).

262

These extraterritorial obligations are also acknowledged in the OHCHR Study Report on the relationship between climate change and human rights. According to the OHCHR Study Report, states are required to: refrain from interfering with the enjoyment of human rights in other countries; take measures to prevent third parties (e.g. private companies) over which they hold influence from interfering with the enjoyment of human rights in other countries; take steps though international assistance and co-operation, depending on the availability of resources, to facilitate fulfilment of human rights in other countries, including disaster relief, emergency assistance, and assistance to refugees and displaced persons; ensure that human rights are given due attention in international agreements and that such agreements do not adversely impact upon human rights.

263

The application of human rights supports international co-operation to address the negative impacts of climate change on vulnerable populations.

264

It does not foreclose international cooperation, which, in itself, is extraterritorial in reach. As shall be argued later in the study, even if this extraterritorial reach is contested, states do have obligations to formulate an appropriate climate change regulatory framework for the protection of indigenous peoples in the face of the adverse impacts of climate change and response measures.

265

Hence, the accountability element of a human rights approach is a further justification for engaging human rights as a conceptual basis. In this regard, the imaginative application of human rights provisions may draw from article 56 of the United Nations Charter which enjoins the international community to cooperate to realise the fulfilment of human rights.

266

Also, under the principle of state responsibility, it is not impossible to hold a State responsible for a violation of its obligation under a treaty or customary international law such as obligations to cooperate or not to harm the environment.

267

The element of accountability in human rights offers an added value to indigenous peoples‟ concerns in relation to their land by providing grievance mechanisms where issues in relation to

262

ICJ (2011) Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights http://oppenheimer.mcgill.ca/IMG/pdf/Maastricht_20ETO_20Principleiples_20-_20FINAL.pdf (accessed 15 October 2012)

263

OHCHR Report (n 8 above) para 86

264

Knox (n 5 above) 494-5

265

See chapter 6 of this study

266

United Nations Charter, a combined reading of arts 56 and 55 is arguably a basis for international co-operation in relation to human right.

267

C Wold, D Hunter & M Powers Climate change and the law (2009) 133

71

climate change impacts can be addressed. The grievance mechanisms set up for accountability purposes under the climate change response measures are not helpful. First, neither the UNFCCC nor the Kyoto Protocol offers express provisions on access to remedial measures for individuals or communities challenged by climate change.

268

For instance, the UN-REDD Programme being implemented at the domestic level lacks a defined international mechanism to address concerns emerging from the operation of projects, should local remedies fail.

269

However, human rights affords marginalised and vulnerable groups the grievance mechanisms to address their grievances. As Newell and Wheeler observe, groups can raise claims and thereby promote accountability of state, private and civil society actors.

270

Also, the approach of the Compliance Committee established under the Kyoto Protocol to resolution of disputes is a further reflection of weakness of the climate change regulatory framework which makes recourse to human rights necessary. This approach is consensual merely aiming at facilitating, promoting and enforcing compliance between states.

271

It does not allow for individual recourse to adversarial measures, even when it does not provide remedies for injured parties.

272

Rather, it follows the consensual nature of the compliance system under international environmental law which mainly leaves the ultimate decision-making to the political body, that is, the COP or MOP, as the case may be.

273

This approach is not new. It is evidenced in such instruments as the 1987 Montreal Protocol on Substances that Deplete the

Ozone Layer,

274

the Convention on Access to Information, Public Participation in Decision-

Making and Access to Justice in Environmental Matters (Aarhus Convention),

275

and the 1989

268

McInerney-Lankford et al (n 157 above) 3

269

„A complaint mechanism for REDD+‟, a report from the Center for International Environmental Law and Rainforest

Foundation Norway (May 2011) which makes a case for REDD+ complaint mechanism

http://www.ciel.org/Publications/REDD+_ComplaintMech_May11.pdf (accessed 13 May 2012)

270

P Newell & J Wheeler „Rights, resources and politics of accountability: An introduction‟ in P Newell & J Wheeler (eds)

Rights, resources and the politics of accountability (2006) 5-6; Sarelin (n 142 above)125

271

Kyoto Protocol, arts 18 and 20; M Fitzmaurice „The Kyoto Protocol compliance regime and treaty law‟ (2004) 8 Singapore

Year Book of International Law (2004) 23-40; G Ulfstein & J Werksman „The Kyoto compliance system: Towards hard enforcement‟ http://folk.uio.no/geiru/TheKyotoComplianceSystem.pdf (accessed 24 October 2011)

272

Aminzadeh (n 107 above) 259-60

273

J Brunnée „The Kyoto Protocol: Testing ground for compliance theories?‟ (2003) 63 Zeitschrift für Ausländisches öffentliches

Recht und Völkerrecht 255-280

274

Adopted in 1992 by the Copenhagen Amendment, see Report of the 4th meeting of the Parties to the Montreal Protocol on

Substances that Deplete the Ozone Layer, UNEP/OzL.Pro.4/15 25 November 1992; see also „Review of the Non-Compliance

Procedure of the Montreal Protocol Pursuant to Decision IX/35 of the 9th meeting of the Parties, Ad Hoc Group of Legal and

Technical Experts of Non-Compliance with the Montreal Protocol, 1st session‟, Geneva, 3-4 July 1998

275

Aarhus Convention done at Aarhus, Denmark, 25 June 1998

72

Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal

276

(the

Basel Convention). This approach reflects or explains the viewpoint argued by Bodansky, that international environmental law is more of trade off involving different requirement for different countries.

277

Rather than focusing on punitive sanctions, the objective of the compliance procedure is to return erring state parties to compliance without the necessary accusation of wrong doing.

278

Yet such a preference for non-adversarial means of addressing climate change flies in the face of reality. As Aminzadeh points out, the path so far followed by international community has been largely ineffective in addressing the mitigation of, and adaptation to climate change.

279

Perhaps, nothing better reflects the unacceptability of this approach than the submission of Mali to the

OHCHR Study:

Laws and institutions for the defence of human rights must evolve to adapt to the new reality of climate change. When vulnerable communities try to use human rights laws to defend their rights and seek climate justice, important weaknesses are revealed.

280

Grievance mechanisms under the human rights regime consider obligations as justiciable and offer a forum for remedy to victims of climate change who have little influence over negotiations.

281

Arguably, it holds promise for vulnerable peoples, such as indigenous peoples, who, in any case, do not participate or contribute in any formal way at the climate change discussions.

282

Hence, an added value of a human rights approach is the norm-based remedial potential which may be useful in addressing the inadequacy of the climate change regulatory framework for the protection of indigenous peoples facing the adverse impacts of climate change on their land. A number of human rights instruments, including the UNDRIP, contain provisions on the right to remedy. Article 8 of the UDHR provides for the right of everyone to effective

276

Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 March 1989, entered into force 5 May 1992, 28 I.L.M. 657 (1989); also see Report of the Conference of the Parties to the Basel Convention on the

Control of Transboundary Movements of Hazardous Wastes and their Disposal, UNEP/CHW.6/40, 6th meeting, Geneva, 9-13

December 2002; Fitzmaurice (n 271 above)

277

Bodansky (n 4 above) 516

278

Fitzmaurice (n 271 above)

279

Aminzadeh (n 107 above)

280

Mali Submission (n 24 above)

281

As above

282

Indigenous peoples climate change mitigation report (n 206 above)

73

remedy before national tribunals regarding every alleged violation of human rights.

283

Article 2, paragraph 3(a), of the ICPPR, guarantees victims of human rights violations an effective remedy.

This involves access to effective judicial or other appropriate remedies including compensation at both the national and international levels.

284

According to article 7 of the African Charter,

„every individual shall have the right to have his cause heard‟.

285

The UNDRIP has numerous provisions in relation to access to a remedy. Article 40, for instance, provides:

Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.

286

The redress to which indigenous peoples are entitled may include restitution or where impossible, „just, fair, and equitable compensation‟ where their lands have been „confiscated taken, occupied, used or damaged without their free, prior and informed consent‟.

287

Also, according to article 10 of the UNDRIP, indigenous peoples are not to be forcibly removed from their land, without free, prior and informed consent „on just and fair compensation and, where possible, with the option of return.‟ 288

Generally, there are several accountability mechanisms under human rights law, such as quasi and judicial bodies, rapporteurs, which can be engaged by indigenous peoples as individuals and groups when they fall victim to measures adopted in response to climate change. At the international level, potential accountability avenues include the Universal Periodic Review

(UPR), the HRC established by the ICCPR and the CESR which is established to monitor the implementation of the ICESCR.

289

Regional tribunals include the Inter-American Commission and Court of Human Rights and the European Court of Human Rights (ECHR),

290

and the

283

UDHR, art 8

284

CESCR General Comment 3, para 5

285

African Charter, art 7

286

UDHR, art 40

287

UDHR, art 28

288

UNDRIP, art 10

289

The Committee was established under ECOSOC Resolution 1985/17 of 28 May 1985

290

Bodansky (n 4 above) 517; Knox (n 5 above) 497; CIEL (n 161 above) 22-3; Limon (n 5 above ) 472

74

Commission as well as the African Court on Human and Peoples‟ Rights, provided the applicable condition is fulfilled.

291

Thus, in the event of a gap within the climate change regulatory framework relating to the protection of indigenous peoples facing the adverse impacts of climate change on their land, a human rights approach offers the guarantees and mechanisms which can be engaged in addressing such a deficiency. At any rate, the arguments around the conceptualisation of climate change either strictly from the point of view of environmental law or human rights is needless. This is because of the intersection or the complementary nature of the two fields.

2.3.3 Intersection with environmental law

In Case Concerning the Gabcikovo-Nagymaros Project,

292

Judge Weeremantry of the

International Court of Justice (ICJ) recognised that the enjoyment of internationally recognised human rights depends upon environmental protection. According to the observation made in a separate opinion:

The protection of the environment is . . . a vital part of contemporary human rights doctrine, for it is a sine

qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.

293

The intersection of human rights with the principles of environmental law on the protection of the environment is, thus, another distinguishing feature of human rights as a conceptual tool for examining the adequacy or otherwise of the climate change regulatory framework. Generally, scholarly writings emphasise three approaches through which human rights can fulfil the protection of the environment and vice-versa.

294

The first approach is through the application of procedural rights found in international human rights law. The second model is achieved through the invocation and reinterpretation of existing human rights to achieve environmental ends. The

291

MS Chapman „Climate change and the regional human rights systems‟ (2010) 10 Sustainable Development Law & Policy 37

292

Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), [1997] I.C.J. Rep. 7 (Gabcikovo-Nagymaros

Project case)

293

Gabcikovo-Nagymaros Project case (n 292 above) 9-92 per Judge Weeremantry

294

DK Anton & DL Shelton Environmental protection and human rights (2011); MR Anderson „Human rights approaches to environmental protection: An Overview‟ in A Boyle & MR Anderson (eds) Human rights approaches to environmental

protection (1998) 4; D Shelton „Human rights, environmental rights and the right to environment‟ (1992) 28 Stanford Journal of

Internatonal Law 103, 105; A Kiss „An introductory note on a human right to environment‟ in EB Weiss (ed) Environmental

change and international law: New challenges and dimensions (1992) 199; J Symonides „The right to a clean, balanced and protected environment‟ (1992) 20 International Journal Legal Information 24

75

creation of a distinct right to environment is the third approach.

295

These approaches have been discussed as applicable in relation to climate change.

296

2.3.3.1 Procedural rights

Procedural rights exist within international human rights law which can promote environmental protection and realise human rights where the climate change regulatory framework is inadequate. Of these rights, freedom of information, the right to participate in decision-making and the right to seek a remedy have been prominently discussed.

297

These approaches intersect with procedural safeguards under environmental law. With respect to information, principle 10 of the Rio Declaration provides:

Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities.

298

Under the UNFCCC, state parties are required to promote at the national, sub-regional and regional levels public access to information on climate change and its effects.

299

The African

Convention on the Conservation of Nature and Natural Resources, as revised (Conservation

Convention),

300

enjoins states to put in place legislation to ensure access to information on environmental matters.

301

There exist copious instruments under international environmental law on public participation, particularly as a key element of environmental impact assessment

(EIA).

302

Agenda 21 makes copious reference to EIA. Especially paragraph 23(2) emphasises the

295

Anderson (n 294 above) 8; G Alfreðsson & A Ovsiouk „Human rights and the environment‟ (1991) 60 Nordic Journal

International Law 19, 22

296

Moritz von Normann (n 161 above); Kravchenko (n 161 above); Aminzadeh (n 107 above)

297

S Atapattu „The public health impact of global environmental problems and the role of international law‟ (2004) 30 American

Journal of Law & Medicine; Moritz von Normann (n 161 above) 6

298

Rio Declaration, principle 10; also see generally, Agenda 21, chapter 3

299

UNFCCC, art 12(9) and (10)

300

So far, 42 states in Africa have signed the Convention while 11 states have ratified. It shall enter into force thirty (30) days after the deposit of the fifteenth (15th) instrument of ratification, see http://www.au.int/en/sites/default/files/Revised%20-

%20Nature%20and%20Natural%20Resources_0.pdf (accessed 10 March 2014)

301

African Convention on Conservation of Nature and Natural Resources, 2003 (Conservation Convention) art 16(1)(a); on the examples of other instruments dealing with information, see Convention for the Protection of World Cultural and Natural

Heritage November 23 1972 art 27; World Charter for Nature, art 16

302

For a discussion of the origin of EIA see, A Boyle „Developments in the international law of environmental impact assessments and their relation to the Espoo Convention‟ (2011) 20 Review of European Community & International

Environmental Law 227; JA Lemmer „Cleaning up development: EIA in two of the world‟s largest and most rapidly developing countries‟ (2007) 19 Georgia International Environmental Law Review 275; NA Robinson „International trends in environmental

76

need for public participation in EIA procedures.

303

The UNFCCC directs all state parties to employ methods, such as impact assessments, to help minimise „adverse effects on the economy, on public health and on the quality of the environment‟.

304

Article 14(1)(c) of the Conservation

Convention enjoins states to ensure that legislative measures allow participation of the public in decision-making with a potentially significant environmental impact.

305

In relation to access to justice, principle 10 of the Rio Declaration stresses the need for „effective access to judicial and administrative proceedings, including redress and remedy‟.

306

For the purpose of protecting the environment and natural resources, the Conservation Convention requires parties to „adopt legislative and regulatory measures necessary to ensure timely and appropriate access to justice‟.

307

The Conservation Convention also provides for peaceful resolution of disputes, and where this fails, recourse to the Court of Justice of the African

Union.

308

Similarly, article 14 of the UNFCCC offers the option of negotiation in relation to disputes around its provisions and where this fails, resort to the ICJ as an option for settlement of disputes.

309

Through elaborate provisions peculiar to different instruments, international environmental law makes a unique contribution which might help in the protection of indigenous peoples in the light of the adverse impacts of climate change. The safeguard in relation to access to information is helpful as information will always be necessary on several aspects of the impact of climate change and response measures on their land. Similarly, the participation of indigenous peoples in impact assessment‟ (1992) 19 Boston College Environmental Affairs Law Review 591; on legal status of EIA see Pulp Mills on

the River Uruguay ICJ 20 April 2010 http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=135 (accessed 29 October 2012)

303

Agenda 21, para 23(2)

304

UNFCCC, art 4(1)(f)

305

On examples of other instruments with EIA provision, see Protocol on Environmental Protection to the Antarctic Treaty‟

(Madrid Protocol) http://sedac.ciesin.columbia.edu/entri/texts/antarctic.treaty.protocol.1991.htmlart (accessed 15 October 2012) principles 3(1) and 8(1); Convention on Environmental Impact Assessment in a Transboundary Context‟ done at Espoo

(Finland), on 25 February 1991 (Espoo Convention); Convention on Biological Diversity (CBD) opened for signature June 5,

1992, 1760 U.N.T.S. 143, 151 (entered into force 29 December 1993) art 14(1)(a); United Nations Convention to Combat

Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, opened for signature 14 October 1994, 1954 U.N.T.S. 108, 117 (entered into force 26 December 1996) art10(4); Aarhus Convention, art 6 generally

306

Rio Declaration, principle 10

307

Conservation Convention, art 16(1)(d)

308

Conservation Convention, art 30; pursuant to the Protocol to the African Charter on Human and Peoples‟ Rights on the

Establishment of an African Court on Human and Peoples‟ Rights (1998/2004), the Court of Justice has now been merged with the African Court of Human and Peoples‟ Rights under a new mechanism referred to as the African Court of Justice and Human

Rights, see „Protocol to the African Charter on Human and Peoples‟ Rights on the Establishment of an African Court on Human and Peoples‟ Rights (1998/2004)‟

309

UNFCCC, art 14(2)

77

climate change mitigation measures is difficult to imagine without an EIA. Indeed, when climate-related information is supplied to indigenous peoples upon or without request, and EIA is carried out with their full participation and consent, there is a limited basis to allege, let alone found, a violation of a right. Access to justice is particularly key as judicial or quasi-judicial proceedings under human rights law are not the first option, where issues can be addressed administratively or through recourse to alternative conflict resolution procedures as advanced by environmental law instruments.

310

However, a major challenge facing procedural principles under international environmental law in relation to climate change is that the mechanisms which are often available under the instruments for redressing wrongs are state-centric.

311

This gap makes procedural guarantees under international environmental law less likely to be useful as a stand-alone in addressing the concerns of indigenous peoples facing the adverse impacts of climate change. However, these provisions can be animated by the human rights principles and mechanisms as earlier explained.

The path dependent of these provisions make human rights an inevitable approach and complementary to procedural rights guaranteed under environmental instruments and vice versa.

2.3.3.2 Interpretation of existing human rights

The ends of environmental protection and the realisation of human rights can be attained through the interpretation of existing human rights which are not connected with the environment.

312

There is interesting jurisprudence that human rights, such as the rights to life, privacy, property, health and culture, have been protected in the context of a finding of environmental harm. For instance, in Europe, most of the victims bringing cases to the European Court on Human Rights and the former European Commission on Human Rights have invoked the right to privacy and family life. Article 8(1) of the European Convention on Human Rights and Fundamental

Freedoms provides that everyone has the right to respect for his private and family life, his home

310

UNDRIP, art 40

311

P Cullet „Definition of an environmental right in a human rights context‟ (1995) 13 Netherlands Quarterly of Human Rights

25

312

Shelton ( n 294 above) 105; Anderson (n 294 above) 7; N Peart „Human rights-based climate change litigation: A radical solution?‟ (2012) 24 Environmental Law & Management 77; Alfreðsson & Ovsiouk (n 295 above) 19, 22

78

and his correspondence‟.

313

This has been mostly successful when the environmental harm consists of pollution.

314

In Lopez-Ostra v Spain, the applicant and her daughter alleged violation of rights to their private and family life due to serious health hazards posed by the fumes of a tannery waste treatment plant which operated alongside the apartment building where they lived. While noting that the state had discretion to strike an appropriate balance between economic development and the applicants‟ rights, the Court ruled that the discretion had been exceeded. Hence, it found a violation of the applicants‟ rights.

315

In Öneryıldız v Turkey, the Court recognised that the State has an obligation to provide deterrence against threats to life, including environmental harms.

316

In Tatar v Romania, the Court concluded that the Romanian authorities had failed in their duty to assess and address environmental risks, and in taking suitable measures to protect the applicants‟ rights under article 8 and, more generally, their right to a healthy environment. On this basis, the

Court awarded the complainants damages while noting the need for government to address issues identified in the EIA.

317

The Inter-American human rights system has followed a similar approach in the protection of the environment and the realisation of human rights of indigenous peoples` land rights. In Yanomami

v Brazil, the Yanomani Indians of Brazil alleged that the grant of license allowing the exploitation of resources had led to influx of non-indigenous peoples into their territories and brought about the spread of contagious diseases. Among others, the Commission found that the government had violated the Yanomani‟s rights to life, liberty and personal security guaranteed by article 1 of the American Declaration.

318

The case of Mayagna (Sumo) Awas Tingni

Community v Nicaragua, decided by the Inter-American Court of Human Rights, involved the protection of Nicaraguan forests in lands traditionally owned by the Awas Tingni.

319

In returning a finding of violations of their rights, including the right to property, the Court unanimously

313

European Convention on Human Rights as amended by Protocols Nos. 11 and 14 http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB.pdf ; on the permissible grounds for limiting the exercise of the right, see the second paragraph of the art 8(1)

314

Shelton (n 294 above)

315

Lopez-Ostra v Spain ECHR (1994), Series A, No. 303C, but see Powell and Rayner v United Kingdom (1990) Series A, No.

172, where the ECHR found that aircraft noise from Heathrow Airport constituted a violation of art 8, but justified under art 8(2) as necessary in a democratic society' for the economic well-being of the country

316

Öneryıldız v Turkey, ETS No. 150-Lugano, 21 June 1993

317

Tatar v Romania Application No. 67021/01, Judgment of 27 January (2009) paras 120-137

318

Yanomami case (n 208 above)

319

Awas Tingni case (n 207 above) para 140; also see Yanomami case (n 208 above)

79

declared that the state must adopt domestic laws, administrative regulations, and other necessary means to create effective surveying, demarcating and title mechanisms for the properties of indigenous communities, in accordance with customary law and indigenous values, uses and customs.

320

The foregoing cases are neither initiated nor examined with climate change or its regulatory framework as focus, the petition lodged by the Inuit before the Inter-American Commission on

Human Rights in December 2005 is different and novel. Faced with the tragic consequences of climate change, the Inuit alleged that the United States‟ climate change policy is destroying the

Arctic environment and, thereby, violating a number of their rights, including the right to health, life and property.

321

In response, the Inter-American Commission stated that the information supplied in the communication is not enough to „characterise a violation of the rights protected by the American Declaration‟.

322

Osofsky‟s several articles on this case argue, although refused, that the petition questions the traditional approach toward environmental protection by extending human rights beyond the confines of United States law.

323

The Nigerian case, Gbemre v Shell Petroleum Development Company Nigeria Limited and

others (Gbemre case)

324

arose from gas flaring activities in the Niger Delta area. Communities in this area filed the case against Shell, ExxonMobil, ChevronTexaco, the Nigerian National

Petroleum Corporation, and the Nigerian government to stop gas flaring.

325

It was the case of the communities that the practice of gas flaring and the failure by the corporations to undergo EIA are in violation, among other things, of the Nigerian gas-flaring regulations, and thus contribute to climate change.

326

Hence, the community alleged the violation of their fundamental rights to life and dignity of the human person as provided by sections 33(1) and 34(1) of the Constitution

320

Awas Tingni case (n 207 above) paras 167-169

321

Inuit Petition (n 154 above)

322

Letter from Ariel E Dulitzky, Assistant Executive Sectary, Organisation of American States, to Paul Crowley, Legal Rep.

(Nov. 16, 2006) http://graphics8.nytimes.com/packages/pdf/science/16commissionletter.pdf. (accessed 27 October 2012)

323

For some of the author‟s articles on this subject, see HM Osofsky „Is climate change “international”? Litigation‟s diagonal regulatory role‟ (2009) 49 Virginia Journal of International Law (Osofsky‟s climate change international) 585; HM Osofsky

„The Inuit petition as a bridge? Beyond dialectics of climate change and indigenous peoples‟ rights‟ (2007) 31 American Indian

Law Review (Osofsky Inuit petition as a bridge) 675; HM Osofsky „The geography of climate change litigation: Implications for transnational regulatory governance‟ (2005) 83 Washington University Law Quarterly 1789; HM Osofsky „Learning from environmental justice: A new model for international environmental rights‟24 Stanford Environmental Law Journal (2005) 72

324

Gbemre v Shell Petroleum Development Company Nigeria Limited and Others (2005) AHRLR 151 (NgHC 2005) (Gbemre case)

325

Gbemre case (n 324 above) para 4(7)

326

Gbemre case (n 324 above) para 4(7)(c)

80

of the Federal Republic of Nigeria, and relevant provisions under the African Charter. Relying on the arguments of the communities that gas flaring contributes to climate change, the Court ordered the defendants to stop gas flaring in the Niger Delta community.

327

The foregoing cases, particularly the Inuit case, show that existing human rights can be invoked, at least rhetorically, to address the failure of the climate change regulatory framework to tackle adequately the adverse impacts of climate change. More importantly, it demonstrates that using existing human rights, legal action in climate change can be constructed diagonally between the citizens of one state against the government of another state in relation to the adverse impacts of climate change.

328

2.3.3.3 Right to environment

Hodkova traces the history of the right to environment to the Stockholm Declaration of 1972, which provides the progressive basis for its approval at the domestic levels by states.

329

The right was conceived with the aim of fostering the protection and conservation of the environment.

330

The source of this conception is found in principle 1 of the declaration which asserts that „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‟.

331

However, there has been much controversy over whether principle 1 indeed formulates a right to environment aimed at the conservation and protection of the environment. Some writers argue it can achieve that end,

332 others are of a contrary view arguing that principle 1 cannot, by itself, attain such an end.

333

At any rate, after the Rio Conference, a Special Rapporteur was appointed to carry out a study on human rights and environment.

334

The report prepared pursuant to this mandate enumerates in its

327

Gbemre case (n 324 above) para 5-7

328

Osofsky‟s Inuit petition as a bridge ( n 323 above); Osofsky‟s climate change international (n 323 above) 643

329

I Hodkova „Is there a right to a healthy environment in the International legal order?‟ (1992) 7 Connecticut Journal of

International Law 65

330

Anderson (n 294 above) 3

331

Declaration on the Human Environment, Report of the United Nations Conference on the Human Environment (New York,

1973), UN Doc. A/CONF.48/14/REV.1., adopted in UNGA Res. 2997 (XXVII) of 1972, principle 1

332

Hodkova (n 329 above) 66; Symonides (n 294 above); Kiss (n 294 above) 199

333

Atapattu (n 297 above) 298; see also R Desgagné „Integrating environmental values into the European Convention On Human

Rights‟ (1995) 89 American Journal of International Law 263 on the view that principle 1 merely clarifies that a certain environmental quality is a precondition for men to enjoy rights

334

Atapattu (n 297 above) 299

81

appendix the „Draft Principles on Human Rights and the Environment‟.

335

According to principle

2, „all persons have the right to a secure, healthy and ecologically sound environment‟.

336

Also, to all persons, principle 4 of the instrument guarantees „an environment adequate to meet equitably the needs of present generations and that does not impair the rights of future generations to meet equitably their needs.‟

337

The right to environment is guaranteed under the regional human rights instruments. The trend setter on this is African Charter since 1981.

338

Other instruments are the Protocol of San

Salvador to the American Convention on Human Rights,

339

and the 2004 Revised Arab Charter on Human Rights (Arab Charter).

340

In March 2011, the Human Rights Council adopted resolution 16/11 on „human rights and the environment‟,

341

and requested OHCHR to conduct a detailed analytical study on the relationship between human rights and the environment.

342

On 22

March 2012, the HRC adopted by consensus another resolution, in which it decided to appoint for a period of three years, an independent expert on the issue of human rights obligations related to the enjoyment of a safe, clean, healthy and sustainable environment. One of the tasks of the independent expert is to study, in consultation with stakeholders, including representatives of indigenous peoples, the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment.

343

The right to environment offers an important platform, particularly for assessing the climate change regulatory framework in relation to the protection of indigenous peoples‟ land rights in the face of climate change. It is because much of climate change and its response measures have implications either negatively or positively on indigenous peoples‟ lands. Potentially, it can help in motivating the formulation of an appropriate regulatory framework for the implementation of projects to take place in an environmental-friendly manner. Jurisprudence which may emerge

335

„Draft Principles On Human Rights And The Environment‟ E/CN.4/Sub.2/1994/9, Annex I (1994) (Draft Principles on human rights and environment) http://www1.umn.edu/humanrts/instree/1994-dec.htm

336

Draft Principles on human rights and environment, principle 2

337

Draft Principles on human rights and environment, principle 4

338

African Charter, art 24

339

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights

(Protocol of San Salvador), 14 November 1988, art 11

340

African Charter, art 38

341

„Human rights and the environment‟ Resolution adopted by the Human Rights Council on 12 April 2011, A/HRC/RES/16/11

(Resolution 16/11)

342

„Analytical study on the relationship between human rights and the environment‟ A/HRC/19/34, 16 Dec. 2011

343

„Human rights and the environment‟, Resolution adopted by the Human Rights Council on 15 March 2012 A/HRC/19/L.J.

82

from its interpretation can help in elaborating the obligations required of states to make this happen. In the Ogoniland case, the complainant alleged that the oil production operations of the military government of Nigeria, through non-state actors, have been carried out without regard to the health of people or environment of the local communities. These activities, it was alleged, have resulted in environmental degradation and the health problems of the peoples. In the context of considering the violations of the rights, particularly the right to safe and healthy environment guaranteed under article 24 of the African Charter, the Commission imposed obligations upon government to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources.

344

Thus, the application of human rights as a conceptual framework is necessary considering its intersection with the application of procedural rights, existing rights and the notion of a right to environment in the protection of the environment and realisation of rights. However, in addition to the foregoing, human rights is also relevant in its link with other principles of international environmental law. Arguably, these principles of international environmental law are useful when animated by human rights instruments and jurisprudence. These principles are discussed below.

2.3.3.4 International environmental law principles a. Intergenerational equity

Intergenerational equity brings to the fore the responsibility of the human entity to protect the environment and not to destroy it.

345

This relationship, posits Weiss, imposes upon each generation certain planetary obligations to conserve the natural and cultural resource base for future generation.

346

For their fulfilment, these obligations, as Weiss explains, require three principles. First, it requires that conservation should be demanded of one generation in such a

344

Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights

(CESR) / Nigeria (Ogoniland case) para 52

345

EB Weiss „Our rights and obligations to future generations for the environment‟ (1990) 84 American Journal of International

Law 198; Tladi (n 86 above) 47

346

EB Weiss „The planetary trust: Conservation and intergenerational equity‟ (1984) 11 Ecology Law Quarterly 494; this idea is also developed in the author‟s work, E Brown Weiss In fairness to future generations: International law, common patrimony

and intergenerational equity (1989)

83

way that it does not restrict the options of future generations.

347

Second, one generation should pass the planet over to the other in no worse condition than it was given.

348

The third principle requires of each generation to provide the other with „access to the legacy of past generations and should conserve this access for future generations‟.

349

The principle of intergenerational equity is a recurring trend in international environmental law.

This is reflected in its key instruments. Principle 2 of the Stockholm Declaration provides that mankind has a responsibility to protect and improve the environment for the present and future generations.

350

Although situated in the construct of development, the Rio Declaration enjoins states to engage in development in such a way that meets the „environmental needs of the present and future generations‟.

351

The UNFCCC provides that „parties should protect the climate system for the benefit of the present and future generations of human kind‟.

352

One can agree with Tladi and the views of others on this trend that international environmental agreements are generally based „even when they do not invoke intergenerational equity expressly in the operative parts of the treaty, on the principle of intergenerational equity‟.

353

By recognising the principle of intergenerational equity, environmental law converges with the underlying thinking and claim of indigenous peoples on the sustainable use of their land.

Generally, indigenous peoples hold their land not only for themselves but on behalf of future generations.

354

Hence, if their land becomes forfeited due to climate change or the adverse impacts of climate response measures, it is not just their rights that are compromised but those of the future generation. The position of indigenous peoples in relation to this possibility has been made known in a number of their declarations. For instance, in the Tiohtiá:ke Declaration, indigenous peoples reiterate their special relationship with mother earth and the importance of an

347

EB Weiss „Intergenerational equity and the rights of future generations‟ 609

348

As above

349

As above

350

Stockholm Declaration , principle 2; also see International Convention for the Regulation of Whaling, 1946 http://www.iwcoffice.org/cache/downloads/1r2jdhu5xtuswws0ocw04wgcw/convention.pdf (accessed 28 October 2012) preamble; Conservation Convention, preamble; Convention concerning the Protection of the World Cultural and Natural

Heritage, adopted by the General Conference at its 17th session Paris, 16 November 1972 (1972 World Heritage Convention) http://unesdoc.unesco.org/images/0013/001398/139839e.pdf (accessed 28 October 2012) art 4

351

Rio Declaration, principle 3

352

UNFCCC, preamble & art 3(1); CBD, art 3

353

Tladi (n 86 above) 43; A Boyle & D Freestone „Introduction‟ in A Boyle & D Freestone (eds) International law and

sustainable development: Past achievements and future challenges‟ (1999) 12; and P Sands Principles of international

environmental law 2nd ed (2003) 200

354

UNDRIP, art 25

84

indigenous knowledge system to the survival of their communities and the entire world.

355

This significance is not limited only to the present world, as the Declaration further emphasises, accommodating indigenous peoples‟ worldview is critical in securing the future of humanity and achieving environmental justice for all.

356

Also, in the Nakuru Declaration, indigenous peoples restate their belief in the principle of intergenerational equity and recognise the interdependence and intimacy between the environment and their livelihoods.

357

Whereas intergenerational equity is a concept widely recognised in environmental law instruments and reflects the environmental value of indigenous peoples, it has been generally questioned on three grounds. These grounds arguably justify the need for a conceptualisation of intergenerational equity as a human rights principle. First, it has been questioned whether rights can be attributed to a group that does not yet exist.

358

Second, Supanich is unconvinced about the extension of traditional human rights across time and the embracing of a generic human right to a decent environment.

359

In Supanich‟s view, the human rights model is unsuitable in discussing intergenerational responsibility as it is uncertain that „environmental rights‟ exist at all.

360

The third objection against Weiss‟s notion is that its conceptualizing as „group rights‟ negates the

Western liberal political ideology and legal traditions of individual rights.

361

Contrary to these criticisms, one can argue that inter-generational equity is not strange to the human rights regime of indigenous peoples. If anything, human rights is the best defence of the inter-generational concerns of indigenous peoples in the light of the climate change challenge.

355

Nakuru Declaration (n 154 above)

356

International Indigenous Peoples Forum on Climate Change Statement to the State Parties of the COP 11/MOP 1 of the United

Nations Framework Convention on Climate Change (UNFCCC) 9 December, 2005

357

Nakuru Declaration (n 154 above)

358

JW Tung-Chieh „Intergenerational and intragenerational equity and transboundary movements of radioactive wastes‟ (2002),

A thesis submitted to the Faculty of Graduate Studies and Research in partial fulfillment of the requirements of the degree of

Master of Laws, Institute of Comparative Law Faculty of Law, McGill University, Montreal, Canada, 13-14, where the author presents these criticisms in the context of transboundary movements of radioactive wastes

359

GP Supanich „The legal basis of intergenerational responsibility: An alternative view-The sense of intergenerational identity‟ (1992) 3 Yearbook of International Environmental Law 94, 96

360

Supanich (n 359 above) 96-97; also see A Rest „The Oposa decision: Implementing the principles of intergenerational equity and responsibility‟ (1994) 24 Environmental Policy & Law 314; and X Fuentes „International law making in the field of sustainable development: The unequal competition between development and the environment‟ (2002) 2 International

Environmental Agreements, Politics, Law & Economics 125, who respectively argue that recognising a right to healthy environment is ill-timed and can compromise development

361

PA Barresi „Beyond fairness to future generations: An intragenerational alternative to intergenerational equity in the international environmental arena‟ (1997) 1Tulane Environmental Law Journal 59, 79, 87; L Gundling „What obligation does our generation owe to the next? An approach to global environmental responsibility: Our responsibility to future generations‟(1990)

84 American Journal of International Law 207, 210 where the author argues that Weiss' notion is inconsistent with the traditional understanding of rights, which ordinarily has reference for the individual

85

First, the UNDRIP recognises the responsibility of indigenous peoples towards their land as inter-generational.

Article 25 of UNDRIP provides:

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

362

Although not decided in the context of indigenous peoples‟ rights, the Minor Oposa case, action was brought to prevent misappropriation of rainforests in the context of section 16 of the

Constitution of the Philippines which guarantees the human right to a balanced and healthful ecology. The Court allowed the claimants to sue on behalf of themselves and future generations.

363

This demonstrates that human rights can be used in constructing intergenerational claims. Weiss anticipates this possibility by grounding the concept of intergenerational equity in key human rights instruments, such as, the preamble to the UDHR,

364 the United Nations Charter,

365

and the ICCPR.

366

These instruments, according to Weiss,

„express a fundamental belief in the dignity of all members of the human family and an equality of rights, which extends in time as well as space‟.

367

The criticism in respect of „environmental right‟ does not reflect developments, at least, in regional human rights law and jurisprudence. The African Charter and other regional institutions, as observed earlier, guarantee the right to a satisfactory environment favourable to human development.

368

The third objection that Weiss‟s notion of intergenerational equity will confer group rights seems redundant in the face of UNDRIP that generally recognises the rights of indigenous peoples as collective rights. In sum, human rights construct can expand the

362

UNDRIP, art 25

363

Juan Antonio Oposa et al., v The Honorable Fulgencio S. Factoran, Jr., in his capacity as the Secretary of the Department of

Environment and Natural Resources, and the Honorable Eriberto U. Rosario, Presiding Judge of the RTC, Makati, Branch 66

(Minor Oposa case) http://www.elaw.org/node/1343, (accessed 11 September 2012); also see Maritime Delimitation in the Area

Between Greenland and Jan Mayen (Denmark v Norway) No. 93/14, June 14, 1993 (Separate opinion of Judge Weeramantry 83-

84) which discusses equity among generations

364

UDHR, preamble

365

United Nations Charter, preamble

366

ICCPR, preamble

367

Weiss ( n 347 above) 605; BG Norton „Environmental ethics and the rights of future generations‟ (1982) 4 Environmental

Ethics 319, 322 who further buttresses that intergenerational rights are „hypothetical rights‟ and since there is strong evidence that future generations will exist, the rights cannot be ignored, even if hypothetical.

368

African Charter, art 24

86

understanding of the concept of inter-generational equity and enrich its use in examining the suitability of the climate change regulatory framework for addressing the adverse impacts of climate change.

b. Intra-generational equity

In international environmental law, the principle of intra-generational equity is reflected in the notion of „common but differentiated responsibility‟.

369

This notion requires that in sharing the costs for environmental protection, regard must be given to the unequal contributions of states to global environmental degradation and their capabilities to solve it.

370

The principle of common but differentiated responsibility is an improvement on the polluter-pays principle, which demands that the costs of pollution be borne by the person or persons responsible for the pollution.

371

The principle of common but differentiated responsibility is a recurrent theme in key instruments of international environmental law. Principle 7 of the Rio Declaration provides as follows:

In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

372

In the context of climate change, the preamble of the UNFCCC acknowledges that: the global nature of climate change calls for the widest possible co-operation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions.

369

Tladi (n 86 above) 49; Fuentes (n 360 above) 122

370

L Rajamani „The changing fortunes of differential treatment in the evolution of international environmental law‟ (2012) 88

International Affairs 605; L Rajamani & S Maljean-Dubois (eds) Implementation of international environmental law (2011) 107-

205; SR Chouchery „Common but differentiated responsibility in international environmental law from Stockholm to Rio‟ in K

Ginther et al (eds) Sustainable development and good governance (1995) 334

371

Tladi (n 86 above) 49; P Sands ‟International law in the field of sustainable development :Emerging legal principle‟ in W

Lang (ed) Sustainable development and international law (1995) 53, 66

372

Rio Declaration, principle 7; also see Montreal Protocol on Substances that Deplete the Ozone Layer 1987 (amended: London,

27-9 June 1990; Nairobi, 19-21 June 1991, preamble and art 10; Basel Convention, preamble, for instance, enjoins states to take into account the „limited capabilities of the developing countries to manage hazardous wastes‟ and „the need to promote the transfer of technology …particularly to developing countries‟. Art 10(3) of the Convention also provides that parties „employ appropriate means to cooperate in order to assist developing countries‟

87

Subsequently, the call for co-operation under the UNFCCC was more specifically spelt out under the Kyoto Protocol. The Protocol distinguishes between developed and developing countries in relation to central obligations on targets and timetables for greenhouse gas mitigation. Developed countries have obligations under the Kyoto Protocol, but, there is no obligation required of developing countries other than co-operation.

373

The obligation on the part of developing nations to cooperate is made conditional on the implementation of commitments by developed countries.

374

The ground for an unequal contribution to climate change and the capacity to bear the costs of environmental degradation is a moral claim on the basis of which developing nations are exempt from emission reduction commitments under the Kyoto Protocol. Except this principle in the climate change regulatory framework is construed from a human rights lens, there is nothing in this claim that confers any advantage or benefit upon vulnerable populations facing the adverse impacts of climate change. Yet, rather than contributing to climate change, according to the summation of Tauli-Corpuz and Lynge, it is the successful struggles of indigenous peoples against deforestation and the expansion of monocrop plantations, as well as their effective stewardship over the world‟s biodiversity, which have ensured „significant amounts of carbon under the ground and in the trees‟.

375

If on the ground of an unequal contribution of states toward environmental degradation, the developing countries are exempt from the burden of cost, no less a measure is required by states in their dealings with indigenous peoples who are disadvantaged intra-generationally in states where they are found. In other words, already marginalised from the mainstream of society, there is a valid reason for an effective regulatory framework that offers indigenous peoples special assistance in their state or region.

376

The principle of intra-generational equity has attracted scholarly criticism. The claim of developing nations based on their need and special circumstances, according to Stone, fails because „ordinarily the persons who need something more are expected to pay more‟.

377

Additionally, Stone contends, shifting the focus on the wealth and technological superiority of

373

Kyoto Protocol, art 3

374

UNFCCC, art 4(7)

375

Indigenous peoples climate change mitigation report (n 206 above) para 17

376

As above

377

CD Stone „Common but differentiated responsibilities in international law‟(2004) 98 The American Journal of International

Law 276, 290; also see Tladi (n 86 above) who presents and addresses Stone‟s criticism in the context of sustainable development

88

the developed nations as a basis for non-uniform obligations is morally unjustifiable as it amounts to holding present generations in developed states accountable for the overuse of global commons by their forbears.

378

However, Stone‟s arguments are objected to as it seems untenable for a generation to claim a lack of responsibility for the actions of their forbears if it continues to enjoy the blessings of their development path. Also, Stone‟s argument signifies that the most vulnerable populations, such as indigenous peoples, should pay more since they need a higher level of assistance to cope with adverse impacts of climate change, which is unacceptable.

The concept of intra-generational equity, however, is not strange to international human rights law. Human rights recognises the need not to treat unequal persons equally, a principle underlying the concept of intra-generational equity. The provision for affirmative action programmes requires the adoption of measures especially for the improvement in the wellbeing of generally deprived populations.

379

If a differential treatment, therefore, is included in a climate change regulatory framework, at least, it is in order to enable assistance to be accessible to populations who require such assistance so as not to be in worse condition than the populations in a given state. It would seem, as is the case with inter-generational equity, constructing a case for special assistance is difficult to conceive without recourse to human rights.

Nevertheless, while human rights can animate environmental law principles, the argument here is not suggesting that human rights is self-supporting. At the very least, the argument is that the intersection of human rights with environmental law conveys a symbolic hope that human rights approach is useful in assessing the adequacy or otherwise of the climate change regulatory framework at different levels of rulemaking and can be linked to the climate change regulatory framework, where appropriate, in addressing the adverse impacts of climate change.

378

Stone (n 377 above) 292

379

For instance, International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), in its art 1(4) provides that „special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals ... as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination ‟; MCR Craven The international covenant of economic, social

and cultural rights (1995) 184 stating that affirmative action programmes „involve the adoption of special measures to benefit socially, economically, or culturally deprived groups‟; see also RB Ginsburg & DJ Merritt „Affirmative action: An international human rights dialogue‟(1999) 21 Cardozo Law Review 253, 254-55 where the authors define affirmative action as „any programme that takes positive steps to enhance opportunities for a disadvantaged group‟

89

2.4 Conclusion

The chapter justifies human rights as a conceptual basis for assessing the climate change regulatory framework in response to the adverse impacts of climate change. This is not merely an effort to debunk the notion that the realisation of rights contributes to climate change but to engage with the meaning and principles which constitutes a human rights concept. More importantly, in a departure from the discourse school of human rights, it has done so in order to explore the features which distinguish human rights as a conceptual basis. A human rights concept is embodied in core principles, namely, interdependence and inter-relatedness, nondiscrimination and equality, participation and inclusion, and accountability which can benefit the concerns of vulnerable groups, such as indigenous peoples facing the adverse impacts of climate change. This benefit is particularly necessary if there is a failing in the climate change regulatory framework formulated in response to adverse impacts of climate change.

Another distinguishing feature is the intersection of human rights intersection with key principles of environmental law. Human rights can contribute three approaches through which indigenous peoples can realise rights and safeguard land in an era of climate change if the climate change regulatory framework proves unhelpful. These options are, namely, through procedural rights, existing rights and the right to a safe and healthy environment. Human rights, as a conceptual basis, intersects with principles, namely, inter-generational as well as intra-generational notions of equity. Under human rights, these notions can be translated from equitable principles of environmental law to legal rights which can be recognised and engaged with in animating the adequacy or otherwise of the climate change regulatory framework in addressing the adverse impacts of climate change on the land rights of indigenous peoples.

Having shown that human rights is suitable as a conceptual basis for assessing the climate change regulatory framework in the light of the adverse impacts of climate change on indigenous peoples‟ land rights, the next chapter turns to the main interest in analysing the climate change regulatory framework, that is, the notion of indigenous peoples‟ land rights and the link with the adverse impacts of climate change in Africa.

90

Chapter 3

The notion of indigenous peoples’ land rights and the adverse effects of climate change in Africa

3.1 Introduction

The preceding chapter justifies the application of human rights as a conceptual framework for assessing the climate change regulatory framework in response to the adverse effects of climate change. This was achieved through the discussion of its features and convergence with environmental protection. This chapter seeks to establish the notion of indigenous peoples‟ land rights as referenced in this study and its peculiar link with the adverse effects of climate change.

To this end it investigates the nature of indigenous peoples‟ land rights, highlighting their perception of land use and tenure as essential features of their land rights. Following the discussion of these fundamental features, the chapter demonstrates that there are core principles of international law relating to land use and tenure which conflict with and subordinate this notion of land rights in Africa. Next, the chapter describes the negative consequences of climate change on indigenous peoples‟ lands and argues that these are a further reflection of historical subordination of their land tenure and use in Africa.

The chapter is presented in five sections. Subsequent to the introductory comment, the second section discusses the notion of indigenous peoples‟ land rights. This is followed by section three which discusses the principles of international law in relation to the use of land and tenure in conflict with the nature of indigenous peoples‟ land rights. In the same section it is argued that the subordination of indigenous peoples‟ land use and tenure in Africa is an outcome of this conflicting perspective. Section four describes the adverse effects of climate change on indigenous peoples‟ land use and tenure and makes the argument that the notion of indigenous peoples‟ lands as adversely affected by climate change is a reflection of the historical subordination of the land tenure and use by indigenous peoples in Africa. Section five is the conclusion.

91

3.2 The nature of indigenous peoples’ land rights

The land that indigenous peoples inhabit, occupy and use is variously referred to as „indigenous lands‟, „tribal lands‟ or „traditional lands‟.

1

Hence, the land rights of indigenous peoples are defined by the variety of use and the land tenure system

2

in accordance with their customs and laws.

3

The land of indigenous peoples is vulnerable to a range of challenges, more so under a rapidly changing climate. Yet, they depend upon it to sustain their identity and for the fulfilment of other rights.

Indigenous peoples use land in several ways for subsistence, including fishing, hunting, shifting cultivation, the gathering of wild forest products and other activities.

4

These are crucial not only for their physical, cultural, and spiritual vitality,

5

but also to their „knowledge and practices in connection with nature‟.

6

Conservation is a feature in their societies,

7

but the notion of indigenous peoples‟ relationship to the land, as canvassed here, is not merely one of

„conservation‟.

8

The relationship of indigenous peoples to the land constitutes an important source of knowledge of cultural significance to their nature or environment survival.

9

The significance of the subsistence use of land by indigenous peoples goes beyond conservation. This subsistence use of land by indigenous peoples is characterised by features in form of holding

1

PG McHugh The modern jurisprudence of tribal land rights (2011) 3; LL Wiersma „Indigenous lands as cultural property: A new approach to indigenous land claims‟ (2005) 54 Duke Law Journal 1061; K McNeil „Aboriginal rights in Canada: From title to land to territorial sovereignty‟ (1998) 5 Tulsa Journal of Comparative &International Law 253

2

Wiersma (n 1 above) 1064

3

United Nations Permanent Forum on Indigenous Issues (UNPFII) „Study on shifting cultivation and the socio-cultural integrity of indigenous peoples‟ (2012) E/C.19/2012/8 para 18 (UNPFII Study)

4

E Desmet Indigenous rights entwined in nature conservation (2011) 86; UNEP „The relationship between indigenous peoples and forests‟ http://www.unep.org/vitalforest/Report/VFG-03-The-relationship-between-indigenous-people-and-forests.pdf

(accessed 10 March 2013) 14 (UNEP Forest Report)

5

OAS „Indigenous and tribal peoples‟ rights over their ancestral lands and natural resources: Norms and jurisprudence of the

Inter-American Human Rights System‟ (2009) 1; see also Maya Indigenous Communities of Toledo District v Belize 12.053,

Report No. 40/4 (Belize case), Inter-American Commission on Human Rights, OEA/Ser.L/V/II.122 Doc 5 Rev, (2004) para 155

6

Yakye Axa Indigenous Community v Paraguay Series C No.125 Inter-American Court of Human Rights (2005) para 154.

7

Desmet (n 4 above) 50, the author however generally states that the indigenous peoples are neither „intrinsic destroyers of nature nor ecologically noble savages‟

8

DA Posey Interpreting and applying the "reality" of Indigenous concepts: What is necessary to learn from the natives (1992); A

Gomez-Pompa & A Kaus „Taming the wilderness myth‟ (April 1992) 42 Bioscience 271, 277

9

Desmet (n 4 above); F Nelson „Introduction: The politics of natural resource governance in Africa‟ in F Nelson (ed) Community

conservation and contested land: The politics of national resource governance in Africa (2010) 3; MO Hinz & OC Ruppel „Legal protection of biodiversity in Namibia‟ in MO Hinz & OC Ruppel (eds) Biodiversity and the ancestors: Challenges to customary

and environmental law (2008) 16

92

patterns and practices, which, as shall be made evident in the ensuing section, defines their cultural and environmental relationship with the land.

10

3.2.1 Land use as an emblem of cultural and environmental integrity

The indigenous peoples are diverse and the perception of the states in which they live may differ from region to region.

11

Land is essential to indigenous peoples‟ cultural identity and survival.

12

However, this is not the end of its significance. Land, through its use by indigenous peoples for subsistence purpose,

13

is also critical to environmental integrity. Hence, disrupting or denying their subsistence use of land is a challenge to their cultural and environmental integrity.

14

Some definitions of key terms are important for this section.

Culture, according to Rodley, is captured „in the notion of a “way of life”- the cluster of social and economic activities, which gives a community its sense of identity‟.

15

Cultural integrity is presented by Wiessner as entailing the liberty afforded indigenous communities „to continue the life of its culture and have it flourish‟.

16

Gilbert views the cultural integrity of indigenous peoples

10

See generally, JL Banda „Romancing customary tenure: Challenges and prospects for the neo-liberal suitor‟ in J Fenrich, P

Galizzi & TE Higgins (eds) The future of customary law (2011) 313; SJ Anaya „Indigenous peoples‟ participatory rights in relation to decisions about natural resource extraction: The more fundamental issue of what rights indigenous peoples have in lands and resources‟ (2005) 22 Arizona Journal of International & Comparative Law 7 (Anaya‟s participatory rights); J Nelson

„Sub-Saharan Africa‟ in M Colchester (ed) A survey of indigenous land tenure (December 2001), a report for the land tenure service of the Food and Agriculture Organisation, see generally, chapter 5; TO Elias The nature of African customary law (1956) chapter ix which generally deals with African concept of ownership and possession

11

F Viljoen International human rights law in Africa (2012) 228-232; M Hansungule „Minority protection in the African system of human rights‟ in A Eide, JT Moller & I Ziemele Making peoples heard (2011) 409-12; A Eide „Prevention of discrimination, protection of minorities and the rights of indigenous peoples: Challenges and choices‟ in Eide, Moller & Ziemele (above) 390; SJ

Anaya „The evolution of the concept of indigenous peoples and its contemporary dimensions‟ in S Dersso (ed) Perspectives on

the rights of minorities and indigenous peoples in Africa (2010) 23 (Anaya‟s evolution); GM Wachira „Vindicating indigenous peoples‟ land rights in Kenya‟ (2008), Unpublished Thesis submitted in fulfilment of the requirements of the degree Doctor of

Laws (LLD) Faculty of Law, University of Pretoria 10-18; J Gilbert Indigenous peoples‟ land rights under international law:

From victims to actors (2007) xiv; J Anaya Indigenous peoples in international law (2004) (Anaya‟s indigenous peoples)

12

On the uniqueness of land to indigenous peoples‟ struggle, see generally, Gilbert ( n 11 above); GM Wachira „Indigenous peoples‟ right to land and natural resources‟ in Dersso (n 11 above); E Daes „Principal problems regarding indigenous land rights and recent endeavours to resolve them‟ in Moller & Ziemele (n 11 above) 467; AK Barume Land rights of indigenous peoples in

Africa (2010); R Sylvian „Land, water and truth: San identity and global indeginism‟ (2002) 104 American Anthropologist

1074,1075; Wiersma (n 1 above) 1065; SJ Anaya & RA Williams, Jr. „The protection of indigenous peoples' rights over lands and natural resources under the Inter-American human rights system‟ (2001) 14 Harvard Human Rights Journal 33, 53; JRM

Cobo „Study of the problem of discrimination against indigenous populations‟ (1986) E/CN.4/SUB.2/1986/7/ADD.1-5 (Cobo

Study); E A Daes „Study on indigenous peoples and their relationship to land‟, final working paper by the Special Rapporteur to the Commission on Human Rights, UN Doc.E/CN.4 (Daes Study)

13

UNEP Forest Report (n 4 above) 14

14

UNPFII Study (n 3 above) paras 18, 20, 39

15

N Rodley „Conceptual problems in the protection of minorities: International legal development‟ (1995) 17 Human Rights

Quarterly 48; Barume (n 12 above) 51

16

S Wiessner „The cultural rights of indigenous peoples: Achievements and continuing challenges‟ (2011) 22 The European

Journal of International Law 140

93

as including „subsistence, livelihood, cultural diversity and heritage‟.

17

Karr, in explaining integrity in the context of the environment,

18

refers to it as „the condition at sites with little or no influence from human actions‟.

19

The argument is made here that subsistence use of land by indigenous peoples is a reflection of their cultural identity and a driver of environmental integrity and is presented by reference to anthropological findings and other scholarly writings on indigenous peoples‟ land use, as well as key provisions of international environmental law and human rights.

3.2.1.1 Subsistence land use

The construction of land use in subsistence terms as a reflection of the cultural and environmental worldview of indigenous peoples is necessary for conceptual reasons. From an anthropological perspective, Ingold argues that a „Western‟ perception of culture and environment holds the two elements as separate entities. Western culture views the environment as something outside or independent of human existence and in need of control by man,

20

a resource to be used and exploited.

21

The hunters and gatherers, as well pastoralists whose lifestyles define indigenous peoples in Africa,

22

view the environment not in the sense of

„building but of dwelling‟.

23

Hence, for these peoples, there is no divide between culture and environment. This is why it has been proposed that the hunters and gatherers‟ view of the environment should be taken seriously in „our very understanding of the environment and of our relations and responsibilities towards it‟.

24

17

J Gilbert „Custodians of the land: Indigenous peoples, human rights and cultural integrity‟ in M Langfield et al (eds) Cultural

diversity, heritage and human rights Intersections in theory and practice: Key issues in cultural heritage (2010) 38

18

The term „environmental‟ and „ecological integrity‟ has been used interchangeable, see JB Sterba „A bio-centric defence of environmental integrity‟ in D Pinentel, L Westra & RF Noss (eds) Ecological integrity: Integrating environment, conservation

and health (2000) 335

19

JR Karr „Ecological integrity: An essential ingredient for human‟s long term success‟ in L Westra, K Bosselmann & C

Soskolne (eds) Globalisation and ecological integrity in science and international law (2011) 17

20

T Ingold The perception of the environment: Essays on livelihood, dwelling and skill (2000) 40-43

21

K Milton Loving nature: Towards an ecology of emotion (2002) 52

22

IPACC „The doctrines of discovery, „terra nullius‟ and the legal marginalisation of indigenous peoples in contemporary Africa‟

(May, 2012), statement by the Indigenous Peoples of Africa Coordinating Committee to the 11th session of the UN Permanent

Forum on Indigenous Issues (UNPFII)1, (IPACC Statement); Wachira (n 12 above) 302; ACHPR and IWGIA „Report of the

African Commission‟s Working Group of Experts on Indigenous populations/communities‟ (2005), submitted in accordance with the „Resolution on the Rights of Indigenous Populations/Communities in Africa‟, adopted by the African Commission on

Human and Peoples‟ Rights at its 28th ordinary, 15 (Working Group Report)

23

Ingold (n 20 above) 42

24

Ingold (n 20 above) 40

94

The view of hunters and gatherers in relation to environmental integrity goes hand in hand with their cultural use of land for subsistence purpose.

25

Indigenous peoples view themselves as culturally linked with the natural environment, including the land upon which they live.

26

This is because their cultural and environmental survival is linked to the control and use of land resources in a sustainable manner.

27

Scholarly writings have shown that the land use of indigenous peoples is not only a marker of their cultural identity,

28

it is a reflection of their sense of nature.

29

This is why the worldview of indigenous peoples about their land embodies the environment. According to Watters, if damage is done to indigenous peoples‟ environment, it is almost certain to disrupt their culture and constitute a substantial threat to their identity and survival.

30

Anaya argues, „to the extent that indigenous cultures can be characterised as harmonious with nature, we see rights to cultural integrity fitting in very closely with environmentalism‟.

31

Indigenous peoples view their land as a divine gift or heritage and themselves as its guardian or protectors.

32

This viewpoint is also reflected in the way indigenous peoples use their land and resources.

Among the San peoples of the Kalahari in Southern Africa, according to Nanda and Warms, land is an expression of harmony with nature which they are willing to maintain.

33

The Maasai of eastern Africa, particularly Kenya, conceive of land and relate to it as an important host, not only of themselves as a people, but of the plants, animals, trees and fish which, among other things, all constitute their cultural and environmental universe.

34

Like other indigenous peoples elsewhere, the Ogiek have been reported as living in harmony with their natural habitat and

25

L Heinämäki „The right to be a part of nature: Indigenous peoples and the environment‟ 2010, academic dissertation presented with the permission of the Faculty of Law of the University of Lapland 1

26

SJ Anaya „Environmentalism, human rights and indigenous peoples: A tale of converging and diverging interests‟ (2000) 7

Buffalo Environmental Law Journal 7 (Anaya Environmentalism ); Anaya participatory rights (n 10 above) ; Cobo Study (n 12 above) vol v, para 197

27

Anaya & Williams (n 12 above) 33, 53

28

AP Cohen „Culture as identity: An anthropologist's view‟ (1993) 24 New Literary History 195

29

J Woodliffe „Biodiversity and indigenous peoples‟ in M Bowman & C Redgwell C (eds) International law and the

conservation of biological diversity (1996) 256

30

L Watters „Indigenous peoples and the environment: Convergence from a Nordic perspective‟ (2002) 20 University of

California Journal of Environmental Law & Policy 237, 239-240

31

Anaya Environmentalism (n 26 above)

32

P West & D Brockington „An anthropological perspective on some unexpected consequences of protected areas‟ (2006) 20

Conservation Biology 609

33

S Nanda & LR Warms (2014) „Cultural Anthropology‟ 11th ed, 352, where the author made reference to the findings of Lee about these peoples; see R Lee „Indigenism and its discontents: Anthropology and the small peoples at the millennium‟( March,

2000), paper presented as the keynote address at the annual meeting of the American Ethnological Society, Tampa

34

JK Asiemat & FDP Situmatt „Indigenous peoples and the environment: The case of the pastoral Maasai of Kenya‟ (1994) 5

Colorado Journal of International Environmental Law & Policy 149

95

environment.

35

Francis and Situmatt maintain, given their attachment to land, that any change within the environment of the Maasai is best discussed in the context of changes „to and in the community‟s right to land‟.

36

The conception of land by indigenous peoples is reflected in the subsistence manner of its use.

Among the forest-dependent Mbendjele (pygmies) of Congo-Brazzaville, the forests fulfil subsistence role including serving as places where pregnant women give birth to children, for finding indigenous foods, sharing stories relating to traditional practices such as „past hunting, fishing, or gathering trips‟, and an eternal abode after death.

37

The San people of the Kalahari, as

Chennells reports, have a peculiar relationship with their land and „every plant, beetle, animal‟.

38

Suagee explains that there is little or no dividing line between indigenous peoples‟ environment, land and cultural value. Rather, in the worldview of indigenous peoples, careful use of land and its biological communities tends to be a prerequisite for cultural survival‟.

39

Some commentators, however, argue that indigenous peoples‟ use of land and resources, particularly the non-human, for subsistence purpose, is far from being harmonious.

40

They contend that nature requires a strict preservation that is incompatible with indigenous peoples‟ presence or resource use, noting that the recognition of the formal rights of indigenous populations will compromise the state of nature.

41

Scholarship in support of indigenous harmonious use of land is criticised in that it overlooks their wage labour and commerce which negatively impact on nature.

42

In particular, Lüdert, noting that some indigenous peoples benefit from eco-tourism, argues that indigenous peoples are involved in the commodification of

35

„Report of the Working Group on Indigenous Populations/Communities Research and Information Visit to Kenya, 1-19 March

2010‟ , adopted by the African Commission on Human and Peoples‟ Rights at its 50th ordinary session, 24 October-5 November

2011 (Kenya‟s Research and Information Visit)

36

Asiemat & Situmatt (n 34 above) 159

37

J Lewis „Forest people or village people: Whose voice will be heard?‟ delivered at the Annual International African Studies

Conference, University of Edinburgh, 24-25 May 2000 https://www.academia.edu/5105643/Forest_People_or_Village_People._May_2000 (accessed 30 May 2014) 7; Barume ( n 12 above) 54

38

R Chennells „The Khomani San of South Africa‟ in J Nelson & L Hossack (eds) From principles to practice: Indigenous

peoples and protected areas in Africa (2003) 278-79

39

DB Suagee „Human rights and the cultural heritage of Indian Tribes in the United States‟ (1999) 8 International Journal of

Cultural Property 48, 50

40

See generally Desmet (n 4 above) 48-54

41

See for example CP Van Schaik, J Terborgh & B Dugelby „The silent crisis: The state of rain forest nature preserves‟ in R

Kramer, CP van Schalk & J Johnson (eds) Last stand: Protected areas and the defence of tropical biodiversity (1997) 78

42

C Zerner „Through a green lens: The construction of customary environmental law and community in Indonesia‟s Maluku

Islands‟(1994) 28 Law and Society Review 1079, 1122

96

nature.

43

In an attempt to show that the relationship of indigenous peoples with their land is not necessarily harmonious, D'Amato and Chopra note that the activities of the Inuit, that is, the indigenous peoples of arctic Canada, Alaska, Greenland and Siberia, are injurious to whales and should not be exempt if an international norm should emerge granting the whale, a right to life.

44

These viewpoints are outliers. Other commentators show that a convergence between indigenous peoples‟ subsistence use of land and environmental protection is not irreconcilable.

45

According to Lynch and Alcorn, „maintaining biodiversity reserves is one strategy that enables communities to maintain their identity and self-reliance […] to secure survival‟.

46

On indigenous peoples who feed on whales for survival, Doubleday argues that whales have been endangered because of commercial whaling, not owing to indigenous peoples‟ subsistence use. Therefore, any international norm conferring the right to life on whales for the purpose of their conservation and preservation should accommodate indigenous peoples and the subsistence relationship they have with the animals on which they culturally depend.

47

It is thus understandable that Jaska is of the view that the recognition and enforcement of the land rights of indigenous peoples will promote environmental sustainability. This is in consideration that it will protect indigenous peoples‟ lands and resources from overconsumption and secure the recognition of their cultural stewardship over the environment.

48

From an environmental viewpoint, Ganz sets out the case for indigenous peoples as the keeper of the environment through their land use. First, indigenous peoples have occupied and lived off their land for long, hence, they hold it in great respect.

49

In addition, if land title is enjoyed by this community, they can receive the financial benefit which can incentivise the preservation and maintenance of the resources. Finally, because of their legendary reliance on these resources, the

43

J Lüdert „Nature(s) revisited: Identities and indigenous peoples‟ available at http://www.anth.ubc.ca/fileadmin/user_upload/anso/anso_student_assoc/Jan_Ludert_2009_10_grad_conference_presentation.pdf

(accessed 3 March 2013) 20

44

A D'Amato & SK Chopra „Whales: Their emerging right to life‟ (1991) 85 American Journal of International Law 21 ; The

Economist „Whales are people, too‟ February 25, 2012 69

45

Desmet (n 4 above) 48; OJ Lynch & JB Alcorn Tenurial rights and community based conservation (1993)

46

Lynch & Alcorn (n 45 above) 385

47

NC Doubleday „Aboriginal subsistence whaling: The right of Inuit to hunt whales and implications for international environmental law‟ (1989) 17 Denver Journal of International Law & Policy 373, 374

48

MF Jaska „Putting the "Sustainable" back in sustainable development: Recognizing and enforcing‟ indigenous property rights as a pathway to global environmental sustainability‟(2006) 21 Journal of Environmental Law & Litigation 157, 199

49

AT Durning „Guardians of the land: Indigenous peoples and the health of the earth‟ (1992) World Watcher Paper 112

97

indigenous peoples possess valuable knowledge on how to sustainably develop the land's resources and preserve it for future generations.

50

On a similar note, Richardson explains:

Environmental justice for indigenous peoples may be interpreted as requiring, at a minimum: the recognition of ownership of land and other resources traditionally utilised; allowing for their effective participation in resource management decision-making; and securing an equitable share of the benefits arising from the use of environmental resources.

51

This is to be expected as whatever affects the use of land of indigenous peoples has implications for their culture and environment. The recognition of the need for indigenous peoples to control and use their land for subsistence purposes, therefore, is necessary not only for the preservation of their culture,

52

but for the preservation of their environment. This understanding is endorsed in the existing instruments on international environmental law and human rights.

3.2.1.2 Subsistence use of land under international environmental law

There are key instruments under international environmental law with provisions that recognise the subsistence use of land by indigenous peoples as important to their cultural integrity and to environmental protection. For instance, though there is no reference to indigenous peoples in the

Stockholm Declaration, the first instrument in modern international environmental law to

„protect and improve the human environment and to remedy and prevent its impairment‟,

53

this is not the case in the Rio Declaration which followed twenty years later.

54

Principle 22 of the Rio

Declaration affirms the relevance of indigenous peoples‟ way of life to conservation and the sustainable management of the environment given „their knowledge and traditional practices‟.

For this purpose, the principle enjoins the recognition by states of „their identity, culture and interests‟ and requires their effective participation in sustainable development agenda. Although there is no specific reference to indigenous peoples‟ subsistence land use in the Rio Declaration, it can be read into the words, such as „traditional practices‟ and „interests‟, which states are enjoined to recognise and duly support for the purpose of conservation and the management of

50

B Ganz „Indigenous peoples and land tenure: An issue of human rights and environmental protection‟(1997) 9 Georgia

International Environmental Law Review 173; Durning (n 49 above) 150

51

BJ Richardson „Indigenous peoples, international law and sustainability‟ (2001) 10 RECIEL 1

52

Ganz (n 50 above) 173

53

Declaration of the United Nations Conference on the Human Environment at Stockholm 1972; see also General Assembly resolution 2581 (XXVI which set out the purpose of convening the Stockholm Conference (Stockholm Declaration)

54

Declaration on Environment and Development, adopted at the United Nations Conference on Environment and Development, at Rio de Janeiro from 3-14 June 1992 (Rio Declaration)

98

the environment. Hence, indirectly, the provision endorses the view that the subsistence relationship of indigenous peoples with land is not only essential to their culture but also to environmental integrity.

That such conception of land use is critical to the cultural lifestyle and environmental integrity of indigenous peoples is inherent in the definition of „lands‟ by another Rio instrument, Agenda

21.

55

Chapter 26 (1) of Agenda 21 explains the term „lands‟ as including the environment of the areas which indigenous peoples occupy. In endorsing the notion that the use of land by external actors may be different from indigenous peoples‟ perception of land use, Agenda 21 urges governments of the need to protect indigenous peoples‟ lands from activities that are environmentally unsound and such activities that they may consider to be „socially and culturally inappropriate‟.

56

Agenda 21 further calls on entities including international development and finance organisations, to incorporate the „values, views and knowledge‟ of indigenous peoples into resource management and other policies and programmes which may affect them.

57

Arguably, this includes their view of subsistence use of land.

The Convention on Biological Diversity (CBD)

58

is a major binding instrument that underscores the purport of promoting the subsistence land use by indigenous peoples as a means of securing biodiversity conservation and the sustainable use of its components.

59

Article 8(j) of the CBD urges, subject to their domestic legislation, states should „preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles‟.

Of importance, too, is article 10(c) of the CBD which tasks the states with the protection and promotion of „customary use of biological resources in accordance with traditional cultural practices‟ in so far as they are not incompatible with conservation or sustainable development.

60

55

Agenda 21, adopted at the United Nations Conference on Environment and Development, at Rio de Janeiro from 3-14 June

1992 (Agenda 21)

56

Agenda 21, chapter 26(3)(a)(ii)

57

Agenda 21, chapter 26(5)

58

Convention on Biological Diversity, adopted at the United Nations Conference on Environment and Development, Rio de

Janeiro from 3-14 June 1992, entered into force on December 29, 1993 (CBD); See P Birnie & A Boyle International law and the

environment (2002) 580 (pointing at the controversial nature of the notion of indigenous peoples‟ rights as the reason for the silence of the CBD on its definition and offering a cross-reference with the definitions in other conventions that may explain the concept

59

See generally the objectives of the CBD

60

CBD, art 10(c)

99

Along similar lines, in affirming the perception of indigenous peoples on the use of land, the

Charter of the Indigenous and Tribal Peoples of the Tropical Forests of 1996 states:

Our territories and forests are to us more than an economic resource. For us, they are life itself and have an integral and spiritual value for our communities. They are fundamental to our social, cultural, spiritual, economic and political survival as distinct peoples.

61

Article 4 of the Charter further provides that „[t]he unity of people and territory is vital and must be recognised‟. This peculiar relationship of indigenous peoples to their land is defended by the unanimous position of the indigenous leaders of the Amazon basin and defines indigenous peoples‟ territory as:

The mountains, valleys, rivers and lagoons that are identified with the existence of an indigenous people and that have provided it with its means of subsistence; the richness inherited from their ancestors and the legacy they are obliged to transmit to their descendants; a space where every little part, every manifestation of life, every expression of nature is sacred in the memory and in the collective experience of that people and which is shared in intimate interrelation with the rest of living beings respecting its natural evolution as a unique guarantee of mutual development… 62

The viewpoint that the subsistence use of land by indigenous peoples is critical to their cultural and environmental survival is equally evident in the Addis Ababa Principles and Guidelines on

Sustainable Use of Biodiversity of 2004 (Addis Ababa Principles).

63

Principle 2 of the Addis

Ababa Principles supports the idea that when government recognises the stewardship of indigenous peoples and local communities over the use of their resources, sustainability of such resources is more certain. In 2004, the Conference of the Parties to the CBD adopted the „Akwé:

Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact

Assessments Regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and

61

Charter of the Indigenous and Tribal Peoples of the Tropical Forests Statement of the International Alliance of the Indigenous and Tribal Peoples of the Tropical Forests (Established Penang, Malaysia, 15 February 1992) (Revised Nairobi, Kenya, 22

November 2002) (Charter of the Tropical Forests) art 3

62

C Tirado, PG Hierro & RC Smith „El indígena y su territorio sonuno solo: estrategías para la defensa de lospueblos y territorios indígenas en la cuencaamazónica‟ (1991) 27-28, cited in Desmet (n 4 above) 86

63

Addis Ababa Principles and Guidelines for the Sustainable use of Biodiversity (2004) http://www.cites.org/eng/res/13/addisgdl-en.pdf (accessed 23 March 2013) (Addis Principles); see also J Gilbert & G Couillard „International law and land rights in

Africa: The shift from states‟ territorial possessions to indigenous peoples‟ ownership rights‟ in R Home (ed) Essays in African

land law (2011) 61

100

Local Communities‟ (The Akwé: Kon Guidelines). 64

Among other things, the Akwé: Kon

Guidelines call for the need to take into consideration „the interrelationships among cultural, environmental and social elements‟ of the worldview of indigenous peoples in relation to projects on their lands.

65

There is no particular reference to indigenous peoples in the United Nations Convention to

Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, particularly in Africa (UNCCD).

66

However, there are provisions which echo the vital link between subsistence land use by indigenous peoples and their culture as well as environment.

For instance, states are enjoined to cooperate with a range of stakeholders, including

„communities‟ and „landholders‟, for the purpose of establishing „a better understanding of the nature and value of land and scarce water resources in affected areas and to work towards their sustainable use‟.

67

A sense of the category of „communities‟ that is intended by the Convention is discernible from article 10(2)(f) which affirms that states have a commitment in relation to stakeholders, including pastoralists.

68

As a driver of cultural and environmental integrity, subsistence use of land by indigenous peoples is considered key in the context of sustainable development.

69

This is ascertainable from the Plan of Implementation of the World Summit on Sustainable Development (WSSDPI), hosted ten years after the Rio Conference.

70

The WSSDPI considers the security of land tenure as necessary in protecting and managing „the natural resource base of economic and social development in the WSSD‟.

71

In its introductory section it acknowledges that cultural diversity is a prerequisite for „achieving sustainable development and ensuring that sustainable development

64

The Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments regarding developments proposed to take place on, or which are likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities, adopted at COP-7 (Kuala Lumpur, February 9-20 2004) Decision VII/16

(The Akwé: Kon Guidelines)

65

The Akwé: Kon Guidelines, sec 3(f)

66

United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, particularly in Africa , adopted at its 5th session, on 17 June 1994 , A/AC.241/27 (UNCCD)

67

UNCCD, art 3c

68

UNCCD, art 10(2)(f)

69

On the definition of sustainable development and its controversies in relation to the protection of the environment, see S Imran,

K Alam & N Beaumont „Reinterpreting the definition of sustainable development for a more ecocentric reorientation sustainable development‟ (2011) 22 Sustainable Development 1; JA Vucetich & MP Nelson „Sustainability: Virtuous or vulgar?‟ (2010) 60

BioScience 539; K Bosselmann „Losing the forest for the trees: Environmental reductionism in the Law‟ (2010) 2 Sustainability

2424, 2426; L Seghezzo „The five dimensions of sustainability‟ (2009) 18 Environmental Politics 539

70

World Summit on Sustainable Development (WSSD) Johannesburg, South Africa A/CONF.199/L.6/Rev.2; World Summit on

Sustainable Development Plan of Implementation (WSSDPI) Advance unedited text 4 September 2002

71

WSSDPI, sec 38(i)

101

benefits all‟.

72

Arguably, the acknowledgment accommodates indigenous peoples‟ perception of land use. This conclusion is possible from the provision of paragraph 6(e) which, in tracing the link between poverty and sustainable development, urges the need to develop the following:

[P]olicies and ways and means to improve access by indigenous people and their communities…and recognise that traditional and direct dependence on renewable resources and ecosystems, including sustainable harvesting, continues to be essential to the cultural, economic and physical well-being of indigenous people and their communities

.

The WSSDPI‟s recognition of the paramount role that the perception of land for subsistence purposes plays in forest management and the general conservation and sustainable use of biodiversity, largely endorses indigenous peoples‟ subsistence use of land.

73

The words „indigenous peoples‟ are not used in the African Convention on Conservation of

Nature and Natural Resources adopted in 2003,

74

however, theAfrican Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources‟ (OAU Model Law) does reference them.

75

The OAU Model law provides copiously for the rights of communities, including, their biological resources, the right to collectively benefit from the use of their biological resources, the exercise of collective rights as legitimate custodians and users of their biological resources.

76

In respect of these rights, article 17 of the Guidelines provides that states should recognise the practices and customs of local and indigenous communities, even if unwritten.

The conclusion can be drawn, to a reasonable extent that international environmental law recognises indigenous peoples‟ subsistence land use and its significance, not only for their culture, but also for environmental integrity.

72

WSSDPI, para 5

73

WSSDPI, sec 43

74

African Convention on Conservation of Nature and Natural Resources, 2003 (Conservation Convention); Gilbert & Couillard argue that unlike its 1968 version, the Conservation Convention looks promising for the realisation of land use of the indigenous peoples, particularly when it is interpreted along with the relevant provision of the African Charter on Human and Peoples‟

Rights and the work of the African Commission‟s Working Group on Indigenous populations/communities, see Gilbert &

Couillard (n 63 above) 62

75

The African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the

Regulation of Access to Biological Resources (OAU Model Law), Algeria, 2000

76

OAU Model Law, art 16(1)(2)(3), (6) respectively

102

3.2.1.3 Subsistence land-use under international human rights law

There are provisions in key human rights instruments which reveal the cultural and environmental significance of the subsistence use of land by indigenous peoples. A starting point is article 1(2) of the International Covenant on Civil and Political Rights (ICCPR) which provides:

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.

Article 27 of the ICCPR directly relates to persons belonging to ethnic, religious or linguistic minorities.

77

In interpreting this provision, the Human Right Committee (HRC), in its General

Comment 23,

78

affirms „with regard to the exercise of the cultural rights protected under article

27‟, that culture is discerned in several forms including „a particular way of life associated with the use of land resources, especially in the case of indigenous peoples‟.

79

Article 27 provision may not necessarily exempt external projects on indigenous peoples‟ lands, it connotes that such projects should have limited impact and prevent „measures that may deprive them of the use of land necessary to enjoy their culture.‟ 80

As an improvement upon Convention 107,

81

ILO Convention 169, is a binding instrument dealing with indigenous peoples. The instrument contains a range of provisions that demonstrate the cultural and environmental purport of indigenous peoples‟ subsistence relationship with land.

82

„Lands‟, according to the Convention, is „the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use‟.

83

77

International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General

Assembly resolution 2200A (XXI) of 16 December 1966 (ICCPR)

78

Human Rights Committee General Comment No. 23 „The rights of minorities‟ (art 27) (1994) UN Doc

CCPR/C/21/Rev.1/Add.5 (General Comment No. 23)

79

General Comment No. 23, para 7

80

G Ulfstein „Indigenous peoples‟ right to land‟ (2004) 8 Max Planck UNYB 11

81

The Indigenous and Tribal Populations Conventions: l957 No. 107, adopted by the International Labour Conference at its 40th session at Geneva on 26 June 1957 (ILO Convention 107)

82

Convention concerning Indigenous and Tribal Peoples in Independent Countries Convention: C169, adopted 27 June 1989 at

Geneva (ILO Convention 169)

83

ILO Convention 169, art 13(2)

103

The significance of this definition is clarified by article 14(1) which provides:

The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.

84

The subsequent adoption of the United Nations Declaration on the Rights of Indigenous Peoples

(UNDRIP) by the United Nations General Assembly enhances its value.

85

UNDRIP‟s preamble calls for „control by indigenous peoples over developments affecting them and their lands, territories and resources‟.

86

This viewpoint is needful as such developments may offend their belief system in relation to their use of land for cultural and environmental ends. Article 10, which provides that „indigenous peoples shall not be forcibly removed from their lands or territories‟ strengthens their position. Article 25 reiterates the rights of indigenous peoples to maintain their unique relationship with traditionally owned lands and to „uphold their responsibilities to future generations in this regard‟. Article 29 acknowledges the right of indigenous peoples to the conservation and protection of their environment and the centrality of their stewardship for that purpose.

The perception which holds that the land use of indigenous peoples is significant on cultural and environmental grounds is further promoted in the seminal work of Martinez Cobo, the first UN

Special Rapporteur of the UN Sub-Commission on the Prevention of Discrimination and

Protection of Minorities (later renamed the Sub-Commission on the Promotion and Protection of

Human Rights) on the Study of the Discrimination against Indigenous Population. According to this study:

[A]ll indigenous communities have, and uphold, a complete code of rules of various kinds which are applicable to the tenure and conservation of land as an important factor in the production process, the foundation of family life and the territorial basis for the existence of their people as such. The whole range of

84

ILO Convention 169, art 14(1)

85

United Nations Declaration on the Rights of Indigenous Peoples, adopted at 107th plenary meeting 13 September 2007

(UNDRIP)

86

UNDRIP, preamble

104

emotional, cultural, spiritual and religious considerations is present where the relationship with the land is concerned…The land forms part of their existence.

87

Thus, in concluding the study, the Special Rapporteur recommends the need for an environmental impact assessment (EIA) of project activities on indigenous peoples‟ lands. For this purpose the study draws a distinction between a community with destroyed „ecological equilibrium‟ and one „whose ecological equilibrium has not been destroyed‟. The study then advises, among other things, that „where ecological equilibrium has been destroyed, the communities should be offered new opportunities for activities compatible with the respect due to their cultural identity‟.

88

Arguably, this recommendation endorses indigenous peoples‟ way of life as critical in restoring communities where ecological equilibrum has been destroyed.

The link between the subsistence land use of indigenous peoples and a sustainable environment is further underscored by the findings of subsequent Special Rapporteurs. Reporting on the relationship between indigenous peoples and their land, Erica- Irene A Daes, former Rapporteur of the United Nations Working Group on Indigenous Populations notes that the well-being of the indigenous peoples‟ cultures and communities can be safeguarded through „the full use and enjoyment of their traditional territories‟.

89

Indeed, according to the report, the relationship between subsistence use of land by indigenous peoples and all living things is at the core of indigenous societies.‟

90

This point is reinforced by Stavenhagen reflecting on the continuing devastating effects of mining operations on the livelihood of indigenous peoples and their environment in the Philippines. According to the Special Rapporteur, it is part of the cultural integrity of indigenous peoples to utilise the knowledge system gained over time in their relationship with their land for environmental management.

91

In what appears to underscore the value of subsistence use of land, Anaya, on the situation of the

Sami people in the Sápmi region of Norway, Sweden and Finland, recommends, particularly to the government of Finland, to „step up its effort to clarify and legally protect Sami rights to land

87

Cobo Study (n 12 above) vol 4, para 51

88

Cobo Study (n 12 above) vol 5, para 555

89

Daes (n 12 above) 476-477

90

Daes Study (n 12 above) para 11

91

R Stavenhagen „Report of the special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, mission to the Philippines‟ (2003) U.N.Doc.E/CN.4/2003/90/Add.3, paras 28, 30 (Stavenhagen Report)

105

and resources.‟ 92

This recommendation was reasoned as necessary due to Sami reindeer husbandry, and the centrality of this to the „culture and heritage of the Sami people‟.

93

The need for external initiatives to respect this kind of relationship is evident in his subsequent conclusions and recommendations made in respect of a visit to Congo.

94

In that regard, the Special

Rapporteur advised that initiatives on indigenous peoples‟ lands, particularly with the advent of climate change, must be designed culturally with goals that focus on their „ability to maintain their distinct cultural identities, languages and connections with their traditional lands‟.

95

A similar point was raised by the visit to Botswana where indigenous peoples (predominantly

Basarwa and Bakgalagadi indigenous communities) alleged that their culture and heritage are often disregarded in the design and implementation of land resource-based projects.

96

The United

Nations Permanent Forum on Indigenous Issues (UNPFII) in one of its sessions emphasised the relevance of land use, particularly shifting cultivation as a sustainable practice by indigenous peoples, which not only serves their cultural purpose but also environmental ends.

97

In an earlier session, the UNPFII appointed Victoria Tauli-Corpuz and Aqquluk Lynge as its special rapporteurs to prepare a report on the „impact of climate change mitigation measures on the territories and lands of indigenous peoples‟.

98

It also recommended „as custodians of the Earth‟s biodiversity, that indigenous peoples should be major players in the protection of world biodiversity.

99

At the regional level, the idea that land, and by extension its subsistence use, is central in the agitation of indigenous peoples for human rights, cultural integrity and environmental protection is given special consideration in the activities of the African Commission‟s Working Group of

Experts on Indigenous Populations/Communities (Working Group). According to the Working

Group:

Dispossession of land and natural resources is a major human rights problem for indigenous peoples … .The establishment of protected areas and national parks has impoverished indigenous pastoralist and hunter-

92

J Anaya „The situation of the Sami people in the Sápmi region of Norway, Sweden and Finland‟ (6 June 2011)

A/HRC/18/35/Add.2 para 84

93

As above

94

J Anaya „The situation of indigenous peoples in the Republic of the Congo‟ (11 July 2011) A/HRC/18/35/Add.5 (Anaya Congo

Report)

95

As above

96

J Anaya „Preliminary note on the situation of indigenous peoples in Botswana‟ (23 September 2009) A/HRC/12/34/Add.4

97

UNPFII Study (n 3 above) para 18

98

UNPFII „Report on the 6th session‟ (14-25 May 2007) E/2007/43 E/C.19/2007/12 , para 52 (UNPFII Report)

99

UNPFII Report (n 98 above) para 59

106

gatherer communities, made them vulnerable and unable to cope with environmental uncertainty and, in many cases, even displaced them ….

100

There are other activities at the regional level in Africa affirming the link between indigenous peoples‟ subsistence land use and cultural and environmental ends. An example is found in the activities of the newly established Working Group on Extractive Industries, Environment and

Human Rights.

101

For instance, while making its oral submission at the 51st ordinary session of the Commission, Nord Sud XXI calls upon the Working Group on Extractive Industries and the

Environment to note, rather than promoting sustainable use of land and resources of indigenous peoples, what is widespread in Africa is an unsustainable exploitation of the land resources of indigenous peoples.

102

In the Endorois case, that the subsistence use of land by indigenous peoples is of environmental and cultural significance was part of the focus in the analysis of the Commission.

103

In that case the complainants argue that the creation of a game reserve on their land is in disregard of national law, Kenyan constitutional provisions and, most importantly, certain articles of the

African Charter, including the rights to property, free disposition of natural resources, religion and cultural life.

104

The Endorois community emphasised that access to their land is crucial to the securing of their subsistence and livelihood and it is inseparably linked to their cultural integrity and traditional lifestyle.

105

This cultural lifestyle embodies, the community further explains, a close intimacy with „grazing lands, sacred religious sites and plants used for traditional medicine‟, all situated around the shores of Lake Bogoria.

106

100

Working Group Report (n 22 above) 20

101

Working Group on Extractive Industries, Environment and Human Rights was established at the 46th ordinary session, held in

Banjul, The Gambia, from 11-25 November 2009, through Resolution ACHPR/Res.148(XLVI)09

102

Oral Statement by Nord Sud XXI to the 51st ordinary session of the African Commission on Human and Peoples‟ Rights held at Banjul 21 April 2012, the Gambia, Item 7

103

Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois

Welfare Council) (Endorois case) 27th Activity Report: June- November 2009, 237

104

Endorois case (n 103 above) para 21

105

Endorois case (n 103 above) para 16

106

As above

107

In arriving at its decision, the Commission reviewed its decision in the Ogoniland case,

107

and reiterated the approach in the earlier jurisprudence of the Inter-American system in the matter of

Awas Tingni.

108

Based on these decisions, the Commission took the position:

For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.

109

There is case-law from national courts in which the cultural and environmental significance of subsistence land use by the indigenous peoples have been highlighted. A significant case, which arose in the face of eviction by the government of Kenya, is that of Francis Kemei, David

Sitienei and others v the Attorney General, the PC Rift Valley Province, Rift Valley Provincial

Forest Officer, District Commissioner Nakur.

110

In that case, the Ogiek Community of the Tinet

Forest in the south western Mau forest of Kenya argued, unsuccessfully, that they are food gatherers, hunters, peasant farmers, bee-keepers and that this lifestyle is closely linked with the forest and basically connected with the preservation of nature.

111

In Roy Sesana, Keiwa Setlhobogwa and Others v the Attorney-General (in his capacity as recognised agent of the government of the Republic of Botswana),

112

the respondent argued that rescission of the provision of amenities for the Central Kalahari Game Reserve (CKGR) was justified considering that those services were not meant to be permanent and in any case, the land occupied by the residents was state land in respect of which the applicants neither enjoyed any ownership or tenancy rights. In deciding in favour of the applicants, the High Court of Botswana stressed the implications of the failure of government to make amenities available for a population in their habitat, highlighting, among other things, that this may make the environment less conducive for their lifestyle and result in displacement from the land as well as undermine

107

Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights

(CESR) v Nigeria 15th Activity Report: 2001-2002 (Ogoniland case)

108

Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of Human Rights 31 August 2001 (Awas

Tingni case); for an analysis of this case see SJ Anaya & C Grossman „The case of Awas Tingni v Nicaragua: A new step in the international law of indigenous peoples‟(2002) 19 Arizona Journal of International & Comparative Law 1

109

Awas Tingni case (n 108 above) paras 148-149

110

Francis Kemei, David Sitienei and others v The Attorney General , the PC Rift Valley Province, Rift Valley Provincial Forest

Officer, District Commissioner Nakuru Miscellaneous Civil Application No.128 of 1999 (Francis Kemei case)

111

Francis Kemei case ( n 110 above)

112

Sesana and Others v Attorney-General (2006) AHRLR 183 (Sesana case)

108

their culture as a people.

113

The decision, indirectly, signifies that government has an obligation to support the continued stay of the Basarwa in the CKGR for the subsistence use of land in furtherance of their culture.

In all, there is well- founded merit in both environmental law and human rights law in support of the proposition that indigenous peoples‟ subsistence use of land is significant for cultural and environmental integrity. The next subsection identifies and discusses another key component of indigenous peoples‟ land rights, that is, the salient features of land tenure which regulate their notion of land use.

3.2.2 Indigenous peoples’ land tenure: Essential features

Generally, „land tenure‟ is not defined in any key instrument relating to indigenous peoples‟ land regime, hence, its meaning is left to the description of its elements. A Food and Agricultural

Organisation (FAO) explains land tenure as „the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land‟.

114

The FAO document goes further to describe land tenure as a set of institutional rules which defines access to the „use, control, and transfer‟ of land.

115

Theorists of property rights generally reflect this understanding of land tenure in their four basic typologies of tenure, namely, individual or private, public or state controlled, common or group property and open access in relation to land.

116

Though flexible, the common or group notion of land tenure defines African customary tenure in the sense that land is understood as belonging to collectives and is subject to, and managed in accordance with customary laws to regulate access by groups and individuals.

117

However, scholarship has substantially portrayed this notion of customary land tenure using the word

113

Sesana case (n 112 above) para 210

114 „What is land tenure?‟ http://www.fao.org/docrep/005/Y4307E/y4307e05.htm

115

As above

116

MA McKean „Common property: What is it, what is it good for, and what makes it work?‟ in C Gibson, MA McKean & E

Ostrom (eds) People and forests: Communities institutions, and governance (2000) 27-56; Lynch & JB Alcorn (n 45 above) 373-

391

117

J Bruce & and S Migot-Adholla „Introduction: Are the indigenous African tenure systems insecure‟ in J Bruce & S Migot-

Adholla (eds) Searching for land tenure security in Africa (1994) 4; DW Bromley & MM Cernea The management of common

property natural resources: Some conceptual and operational fallacies (1989) 17-19

109

customary and indigenous societies/peoples‟ land tenure almost interchangeably, as though they are one and the same tenure.

118

This approach features both in the rapidly growing literature on African customary land tenure,

119

as well as writings on indigenous peoples‟ land tenure.

120

In particular, Okoth-

Ogendo‟s argument that African customary law is the applicable law to indigenous peoples‟ lands may not be incorrect,

121

however, it stems from a context which considers land in the agrarian sense of „a creative force in social production and reproduction‟, available to

„individuals as well as collectives whether exclusively, concurrently or sequentially‟.

122

This construction of land tenure cannot be the perception of several indigenous peoples in Africa, who do not engage in agriculture, or conceive of agriculture as an ideal lifestyle.

123

Interchanging indigenous societies/peoples‟ land tenure with customary land tenure, as Nelson rightly observes, seems questionable when the substance of the work on African land tenure essentially focuses on an agrarian setting with little or no attention on the land tenure of African hunter-gatherers, in particular, and other self-identified African indigenous peoples.

124

Hence, a discussion of customary land tenure may overlap in some respects with indigenous peoples‟ land tenure, it is a path that must be trodden cautiously. Suffice it to state at this juncture that it is in the context of the latter group that the ensuing paragraphs explore collective landholdings, the informal or oral nature of land title and parallel usage as the essential features of indigenous peoples‟ land tenure.

118

See WJ du Plessis „African indigenous land rights in a private ownership paradigm‟ (2011) 14 PER / PELJ 261; HWO

Okoth-Ogendo „Nature of land rights under indigenous law in Africa‟ in A Claassens & B Cousins (eds) Land, power and

custom: Controversies generated by South Africa's communal land rights (2008) (Okoth-Ogendo‟s nature of land rights) 95-108;

HWO Okoth-Ogendo „The tragic African commons: A century of expropriation, suppression and subversion‟ (2005), a keynote address delivered at a workshop on Public Interest Law and Community-Based Property Rights, PLAAS, 1-4 August 2005; 3

(Okoth-Ogendo‟s tragic African commons) 11-12; Elias (n 10 above) 162

119

Banda (n 10 above) 332; Okoth-Ogendo‟s tragic African commons (n 118 above) 3; B Cousins „Potential and pitfalls of

„communal‟ land tenure reform: Experience in Africa and implications for South Africa‟ (March 2009) paper for World Bank conference on Land governance in support of the MDGs: Responding to new challenges 2; Mcneil (n 1 above) 260; Elias (n 10 above) 163

120

Anaya‟s participatory rights (n 10 above) 10; Barume (n 12 above) 174-186; Wachira (n 12 above) 306-310 ; C Kidd & J

Kenrick „The forest peoples of Africa: land rights in context‟ in Forests Peoples Programme Land rights and the forest peoples of

Africa (March 2009) 4-25; M Hansungule „Challenges to the effective legal protection of indigenous peoples in Central Africa‟

(On file with the author) 1-19; Nelson (n 10 above) 52; A Buchanan „The role of collective rights in the theory of indigenous peoples' rights‟(1993) 3 Transnational Law & Contemporary Problems 93

121

Okoth-Ogendo‟s tragic African commons (n 118 above) 11-12

122

Okoth-Ogendo‟s tragic African commons (n 118 above) 3

123

Nelson (n 10 above) 52

124

Nelson (n 10 above) 52

110

3.2.2.1 Collective land ownership

The notion of collective rights is the most debated and distinct element in the discourse of indigenous peoples' rights. This controversy, Anaya explains, orginated during the Cold War when super powers insisted that a collective notion of rights was in conflict with individual rights.

125

The debate, however valid, has become redundant. Scholarship has shown that the collective nature of indigenous peoples‟ rights is a justifiable departure from the focus on individualism at the core of the normative liberal assumption of human rights.

126

Indeed, as

Ramcharan observes, „the notion of the rights of the collectivity, or of groups, or of peoples, is not a stranger to the intellectual history of rights.‟

127

In contemporary development of international human rights law, of the rights claimed by indigenous peoples as collective, the most prominent in terms of uniqueness to their lifestyle are land rights.

128

The pillar instruments of indigenous peoples‟ rights regime recognise the collective nature of indigenous peoples‟ land rights. In addition to enjoining states to recognise the cultural significance of indigenous peoples‟ lands, article 13(1) of ILO Convention 169, specifically emphasises the need for states to recognise the „collective aspects of this relationship‟. It provides:

[I]n applying the provisions of this Part of the Convention, governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.

125

SJ Anaya „Superpower attitudes toward indigenous peoples and group rights‟ (1999) 93 Proceedings of the Annual Meeting

American Society 251, 257, tracing this concern to possible conflicts of individual rights with collective notion of rights and Cold

War opposition to collective claims; but see, on the divergence of view in this regard, DG Newman „Theorizing collective indigenous rights‟ (2007) 31 American Indian Law Review 273, 279 where the author argues that the notion of collective right does not reflect collective sense in which the indigenous peoples will advance it; see also DG Newman „Collective interests and collective rights‟ (2004) 49 American Journal of Jurisprudence 127

126

Buchanan (n 120) 91, 92 arguing the collective nature of indigenous peoples‟ rights as a justifiable departure from and a fundamental challenge to the focus on individualism which is at the core of the normative assumption of human rights concept

127

BG Ramcharan „Individual, collective and group rights: History, theory, practice and contemporary evolution‟ (1993) 1

International Law Journal on Group Rights 27, 28 arguing that collective rights is at the core of the social contract theories and the theories of rights offered by Hobbes, Locke, Rousseau and Mill, which though reserved domain for the individual, also situate the individual in a contractual relationship with the collectivity, thereby implying some rights for the latter; see more recently W van Genugten „Protection of indigenous peoples on the African continent: Concepts, position seeking, and the interaction of legal system‟ (January 2010) 104 The American Journal of International Law 29, making reference to other key instruments which embody collective rights as a principle. Examples cited by the author include 1945 UN Charter, its art 1(2) dealing with the

„principle of equal rights and self-determination of peoples‟

128

Gilbert (n 11 above) xiv; Buchanan (n 120 above) 91; Barume (n 12 above) 177-78; Daes (n 12 above) 467; Cobo study ( n 12 above) vol 5, paras 196-198; Cobo study ( n 12 above ) vol 4, para 152

111

Collective land rights are guaranteed under different articles of the UNDRIP. Its preamble affirms that „indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples‟.

129

Article 1 of UNDRIP takes this view further by affirming that indigenous peoples have the collective and individual right to the full enjoyment of all human rights and fundamental freedoms recognised in key instruments such as the Charter of the United Nations, the Universal Declaration of Human Rights, and international human rights law. Arguably, it includes the collective right of indigenous peoples to the „lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.‟

130

Article 25 safeguards the right which they have in relation to the maintenance of their special relationship with land. Article 26 generally regulates their right to own, use, develop and control lands and resources. Article 27 underscores the obligation of states. In this regard, it provides that states should: establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples‟ laws, traditions, customs and land tenure systems, to recognise and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used.

Indigenous peoples shall have the right to participate in this process.

In Africa, according to Cusson, collective lands include „hunting and gathering areas, grasslands, forests, mixed savannah, wetlands, mountain sides, lakes, rivers, coastal areas , fishing grounds, etc‟.

131

These are lands which are traditionally vested in indigenous peoples and are held in the collective sense in accordance with established rules and customs.

132

Collective control comprises mainly extended families as opposed to individually controlled land that is not allowed as custom only permits the privilege to use land and not to alienate or transfer it by sale.

133

The majority of indigenous communities favour „collective stewardship‟ over their land and resources.

134

129

UNDRIP, preamble

130

UNDRIP, art 26(1)

131

B Cousins „Tenure and common property resources in Africa‟ in C Toulmin & J Quan (eds) Evolving land rights, policy and

tenure in Africatenure and property (2000) 151-180, 160; Okoth-Ogendo‟s tragic African commons (n 118 above) 12

132

A Mahomed et al Understanding land tenure law: Commentary and legislation (2010) section 2-1

132

A Mahomed et al Understanding land tenure law: Commentary and legislation (2010) section 2-1

133

AJ Njoh „Indigenous peoples and ancestral lands: Implications of the Bakweri‟s case in Cameroon‟ in Home (n 63 above) 71, where the author notes that this is common place in most parts of colonial Africa, although discussion is largely in the context of the Bakweri; Wachira (n 12 above); Barume (n 12 above) Okoth-Ogendo‟s tragic African commons (n 118 above) 8

134

Anaya‟s indigenous peoples (n 11 above) 141

112

Generally, anthropological as well as legal commentaries exist on the collective aspect of land relations in a tenure system.

Anthropological analysis of practice in pre-colonial Africa points out that an individual notion of ownership is a product of colonial economic influence on a communal relationship with the land.

135

Land relations in pre-colonial Africa emphasised, in the word of Chinock, the notion of

„ours‟, not „yours‟.

136

The Mbendjele of the Republic of Congo, according to Barume, refer to the forests as „ndima angosu‟, meaning „our forest‟.

137

Among these peoples legitimate claim to exclusive individual ownership of land is difficult, if not impossible, as only Kombaa (God) could own land, rivers, and forest.

138

The Hadzabe of Tanzania distinguish between the „tangoto‟

(open land) and the chikiko, that is, the lands consisting of the forests. Rights in respect of the latter, according to the Hadzabe‟s world view, allow anyone to „live, hunt, and gather anywhere he or she wishes without restriction‟.

139

In the worldview of the San people of Botswana homesteads, which include the lands in the Central Kalahari, are referred to as „nloresi‟

(traditional territories).

140

Similarly, a collective relationship with the land is an aspect of the lifestyle of the Maasai people in Kenya and Tanzania. In relation to this, Tarayai notes:

The rules governing the right of tenure are sacred, crucial to the community‟s survival, and eliminate possible alienation of individuals. The landholder, according to Maasai custom, is the community itself. The individual member has the limited right to use community land along with other members. However, a member has no right to sell, lease, or charge money for use of any portion of the community‟s land. The community itself has no such right either. It cannot alienate, lease, or charge for use of its land, because under customary law, land has no monetary value. The land is held in trust by the community for its members, both present and prospective. Such members collectively have a duty to defend communal land against external

135

Cousins (n 131 above) 3; M Chanock „Paradigms, policies and property: A review of the customary law of land tenure‟ in R

Roberts & K Mann (eds) Land in colonial Africa (1991) 61, 62; Njoh ( n 133 above) 71; Cobo‟s study (n 12 above ) vol.v, para

197

136

Chanock (n 135 above) 71

137

Barume (n 12 above) 178

138

Lewis (n 37 above) 64; Barume (n 12 above) 179

139

Barume (n 12 above) 178-9, citing J Woodburn „Minimal politics:The political organisation of the Hadza of North Tanzania‟ in WA Shack & PS Cohen (eds) Politics in leadership (1979) 245

140

Barume (n 12 above) 179

113

aggression and encroachment. The community cannot transfer any portion of its land to any of its members or to any outsider.

141

However, it appears, there is no Africa-wide conception of the collectivity of land ownership.

Generally, anthropological literature has shown that individual rights to land are not unknown in customary tenure in some settings in Africa. Schapera, for instance, documents that among the

Tswanas, if a person was removed from his land on account of the commission of certain crimes, or left without an intention to return, his land could be allocated to another.

142

Similarly, as

Hunter evidences, the land relations in Pondoland largely were held collectively, but the approach in Pondoland in relation to arable land is similar to the European conception of individual rights.

143

Similarly, among the Kikuyus in Kenya, individuals enjoyed a right to own their own pieces of land, although rights to land were generally held in „commons‟.

144

This pattern may be correct in terms of indigenous peoples‟ dealing with land, howver, it is a departure from the general perception of hunter-gatherers whose lifestyle typifies indigenous peoples in Africa.

145

The majority of indigenous communities favour collective stewardship over their land and resources.

146

They prefer lands possessed without the option of division into individual plots.

147

This form of land tenure system, as Wachira argues, is compatible with their cultural aspirations and way of life.

148

Hence, individualised ownership of such lands may not be sustainable or consistent with lifestyles, such as pastoralism which largely depend on sharing of resources communally.

149

At any rate, the argument that individual ownership is not compatible with indigenous peoples‟ land tenure is futile. For instance, article 1 of the UNDRIP provides that indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and

141

N Tarayai „The legal perspectives of the Maasai culture, customs, and traditions‟ (2004) 21 Arizona Journal of International

& Comparative Law 206

142

I Schapera A handbook of Tswana law and custom (1994)

143

MH Wilson Reaction to conquest:Effects of contact with Europeans on the Pondo of South Africa (1961)113

144

J Kenyatta Facing mount Kenya: The tribal life of the Gikuyu (1979) 21

145

Nelson (n 10 above) 52; Working Group (n 22 above)15

146

Anaya‟s indigenous rights (n 11 above) 141;

A Xanthaki „Land rights of indigenous peoples in South-East Asia‟ (2003) 4

Melbourne Journal of International Law

147

Barume (n 12 above) 177

148

Wachira, (n 12 above) 308; See also Asiema & Situmatt (n 34 above) 149. On the San in South Africa, see J Suzman Regional

assessment of the status of the San in Southern Africa (2001) 34

149

Okoth-Ogendo‟s tragic African commons (n 118 above) 12; Wachira (n 12 above)

114

fundamental freedoms as recognised in the Charter of the United Nations, the Universal

Declaration of Human Rights and international human rights law. Article 44 of the UNDRIP guarantees to indigenous female and male individuals all the rights under the UNDRIP which, arguably, includes the right to land. It thus appears that collective ownership of land does not necessarily exclude the notion of individual right and its protection. Wiessner argues, in addressing the various threats facing indigenous peoples, both individual and collective rights are required as appropriate legal responses.

150

Individual ownership is to be understood in the context of the customs and institutions of indigenous peoples which define their collective identity. In Tsilhqot‟ in Nation v British

Columbia,

151

the Supreme Court of British Columbia expatiates upon what can be regarded as the enjoyment of individual rights by indigenous peoples‟ rights in the context of collectivity. In that case, the Court, agreeing with Slaterry‟s view on the law of aboriginal title to land in relation to its collective feature,

152

notes:

The doctrine of aboriginal land rights attributes to native groups a collective title with certain general features. The character of this collective title is not governed by traditional notions or practices, and so does not vary from group to group. However, the rights of individuals and other entities within the group are determined inter se, not by the doctrine of aboriginal title, but by internal rules founded on custom. These rules dictate the extent to which any individual, family, lineage, or other sub-group has rights to possess and use lands and resources vested in the entire group. The rules have a customary base, but they are not for that reason necessarily static.

153

There are judicial cases from different jurisdictions that further reinforce the collective notion of indigenous peoples‟ ownership of land. The Supreme Court of Canada in Delgamuukw v British

Columbia had cause to distinguish what collective land rights entail from an individual right claim to an aboriginal title. It‟s view was:

[a] further dimension of aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation.

150

Wiessner (n 16 above) 139

151

Tsilhqot‟in Nation v British Columbia 2007 BCSC 1700 (Tsilhqot‟in Nation case)

152

B Slattery „Understanding aboriginal rights‟ (1987) 66 Canadian Bar Review 727, 745

153

Tsilhqot‟in Nation case ( n 151 above) para 471

115

Decisions with respect to that land are also made by that community. This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests.

154

In Mabo v Queensland, the Australian Court took the view that the rights to land of indigenous peoples are „vested not in an individual or a number of identified individuals but in community‟.

155

On a similar issue, in Alexkor Ltd and Another v Richtersveld Community and

Others (Ritchtersveld Community case),

156

the Constitutional Court of South Africa affirms the findings of the lower courts about the collective nature of land ownership as recognised under the applicable law to the Ritchtersveld community, that is, the Nama law. Affirming the position of the Supreme Court of Appeal (SCA) on this issue, the Constitutional Court found that land was communally owned since members of the community had a right to occupy and use the land.

The Court went further to describe the various elements which led it to a conclusion that land was collectively owned by the community. Agreeing with the finding of the SCA in the matter, the Constitutional Court observed:

One of the components of the culture of the Richtersveld people was the customary rules relating to their entitlement to and use and occupation of this land. The primary rule was that the land belonged to the

Richtersveld community as a whole and that all its people were entitled to the reasonable occupation and use of all land held in common by them and its resources

.

157

Regional human rights systems equally have discussed this essential aspect of indigenous peoples‟ land rights. For instance, in deciding whether article 21 of the American Convention on

Human Rights had been violated,

158

the Inter-American Court of Human Rights (IACHR) emphasised that indigenous and tribal peoples‟ right to property is collective in nature with the people as the corresponding bearer.

159

This view is justified considering that the right is enjoyed by indigenous peoples in collective way and cannot be effectively safeguarded except if guaranteed to indigenous peoples as a whole,

160

in that sense, according to the long practice of

154

Delgamuukw v British Columbia [1997] 3 SCR 1010 para 115

155

Mabo v Queensland (No 2), (1992) 175 CLR 1, 107 ALR 1 (Mabo case) per Brennan para 52

156

Alexkor Ltd and Another v Richtersveld Community and Others (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003

(12) BCLR 1301 (CC) (14 October 2003) (Richtersveld Community case)

157

Richtersveld Community case (n 156 above) paras 58 and 59

158

American Convention on Human Rights, signed at the Inter

‐American Specialised Conference on Human Rights, San José,

Costa Rica, 22 November 1969

159

The right to territorial property has been identified by the IACHR as one of the rights of indigenous and tribal peoples with a collective aspect, see Belize case (n 5 above), para 113; Awas Tingni case (n 108 above) para 140(c)

160

Belize case (n 5 above) par 113

116

the IACHR „the individuals and families enjoy subsidiary rights of use and occupation.‟ 161

The rationale for this is further clarified by the IACHR in the Case of the Mayagna (Sumo) Awas

Tingni Community v Nicaragua:

There is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community.

162

The collective aspect of indigenous peoples‟ characteristic tenure of land has been the subject matter for consideration by the Commission where the inattention to this unique feature at the national level has been a strong basis for resorting to the regional human rights system. In

Endorois case, it was the case of the complainants that the High Court in Kenya, refused to consider the claim to collective right to property made by the complainants. Rather, as was alleged, the High Court proceeded on the erroneous notion that „there is no proper identity of the people who were affected by the setting aside of the land‟ in ruling against the complainants.

163

The complainants argued that since time immemorial the Endorois have lived on the land where they have „constructed homes, cultivated the land, enjoyed unchallenged rights to pasture, grazing, and forest land‟.

164

In doing so, it was the further argument of the complainants that the

Endorois have exercised „an indigenous form of tenure, holding the land through a collective form of ownership‟.

165

Responding to this point, the Commission ruled that it is satisfied that the

Endorois can be regarded as a „distinct tribal group whose members enjoy and exercise certain rights, such as the right to property, in a distinctly collective manner‟.

166

3.2.2.2 Customary tenure

Generally, tenure in relation to land is grouped according to whether it is „formal‟ or „informal‟.

The formal tenure is deemed to be written and statutory, while the informal land tenure system is considered as a customary or traditional land tenure system because the proof of title to lands is generally based on oral traditions.

167

The distinction between formal and informal tenure is

161

Awas Tingni case (n 108 above) para 140(a)

162

Awas Tingni case (n 108 above) para 149

163

Endorois case (n 103 above) para 12

164

Endorois case (n 103 above) para 87

165

As above

166

Endorois case (n 103 above) para113

167

IFAD „Land tenure security and poverty reduction‟ (2012) 2 http://www.ifad.org/pub/factsheet/land/e.pdf (accessed 5 March

2013)

117

necessary considering that in most parts of Africa, and this is particularly true of far-flung and rural areas, the allocation of land is effected informally through customary laws allowing individuals or groups the use of lands managed collectively.

168

It is against this background that most indigenous peoples live,

169

where the control over the use of land is regulated through unwritten rules embedded in their customs and traditions.

170

These customs and traditions are established by indigenous peoples from time immemorial, and have not been compromised by laws imposed by colonial authorities.

171

As earlier mentioned, an important aspect of these customs and traditions relates to its oral nature of proof of title,

172

which is understandable as the vast majority of the laws and customs relating to the land of indigenous peoples are not written but merely passed orally from one generation to the other.

173

Most indigenous peoples lack access to formal legal title.

174

As Bennet notes, this constitutes an aspect of „living customary law‟ which is discernible from practices of a given people and mostly exist in oral tradition.

175

Similarly, according to McHugh:

Indigenous law is not written. It is a system of law that was known to the community, practised and passed on from generation to generation. It is a system of law that has its own values and norms.

Throughout its history it has evolved and developed to meet the changing needs of the community.

And it will continue to evolve within the context of its values and norms.

176

The essential characteristics of a formal land tenure system include the recognition by registration and title, an informal land tenure system is mainly defined by traditional practices

168

B Cousins „Characterising „communal‟ tenure: nested systems and flexible boundaries‟ in Claassens & Cousins (n 118 above)

111-113; J Potter ʻCustomary land tenure in Sub-Saharan Africa today: Meanings and contexts‟ http://www.issafrica.org/pubs/Books/GroundUp/2Customary.pdf (accessed 30 March 2013) 56

169

„The right to adequate housing‟ Fact Sheet No. 21/Rev

170

SD Ngidangb „Deconstruction and reconstruction of native customary land tenure‟ (June 2005) 43 Southeast Asian Studies 50

171

Cobo‟s study (n 12 above) vol iv para 153

172

USAID „Tenure and indigenous peoples: The importance of self-determination , territory, and rights to land and other natural resources property rights and resource governance‟ Briefing Paper 13; The Norwegian Forum for Environment and Development

„Beyond formalisation: Land rights agenda for Norwegian development and foreign policy‟ 15

173

Wachira (n 12 above) 316-317; C Daniels „Indigenous rights in Namibia‟ in R Hitchrock & D Vinding (eds) Indigenous

peoples‟ rights in Southern Africa (2004)54

174

Gilbert & Couillard (n 63 above)

175

The author distinguishes what he terms „official customary law‟ from „living customary law‟. The former refers to rules imposed by external authorities without local support and hence it lacks legitimacy while the latter is not fixed in any written codes and is dynamic, see T Bennet „official‟ vs „living‟ customary law: Dilemmas of description and recognition‟ in Claassens

& Cousins (n 118 above) 188-9

176

McHugh (n 1above) 200

118

and customs, which are often ignored by law.

177

Indigenous peoples are only able to prove title to their land through reference to the graves of their ancestors and oral testimony from different generations of peoples who have inhabited the land.

178

Although not mentioned expressly in any provision of the key instruments relating to the land rights of indigenous peoples, the informal nature of indigenous peoples‟ land rights can be inferred. For instance, the right to adequate housing guaranteed under article 11 of the ICESCR has been interpreted as entailing „a degree of tenure security which guarantees legal protection against forced evictions, harassment and other threats‟.

179

The phrase „a degree of tenure security‟ reflects a flexibility which may accommodate different types of tenure including such as held by indigenous peoples that is generally informal in nature.

Article 17(3) of ILO Convention 169 reflects informal title to land as a feature of indigenous peoples‟ lands and cautions on the possibility of „strangers‟ taking advantage of it to deny indigenous peoples their land rights. Particularly, it states that non-indigenous peoples are prohibited from taking advantage of the customs „or lack of understanding of the laws on the part of their members to secure the ownership, possession or use of land belonging to them‟.

180

This viewpoint is strengthened by UNDRIP which requires states to recognise and protect indigenous peoples‟ lands, based on proper regard for their customs, traditions and land tenure systems.

181

The viewpoint that informal or customary rules of indigenous peoples‟ land tenure are valid, arguably, is strengthened by General Recommendation No. 23 of 1997 by the Committee on the

Elimination of Racial Discrimination (CERD).

182

In reflecting on the situation of indigenous peoples, the CERD enjoins the recognition, promotion and preservation by states of the peculiar history, culture, way of life and language of indigenous peoples.

183

As an integral aspect of indigenous peoples‟ relation to land, it is argued that informal customs and traditions of

177

T Cousins & D Hornby „Leaping the fissures: Bridging the gap between paper and real practice in setting up common property institutions in land reform in South Africa‟ (October 2000), prepared for the CASS/PLAAS CBNRM Programme 2nd annual regional meeting Legal aspects of governance of CBNRM 8-10

178

Wachira (n 12 above) 317; Daniels (n 173 above) 54

179

UNHRC Resolutions on the right to adequate housing, UNHRC Res. 6/27, U.N. Doc. A/HRC/6/22 ( 14 April 2008)

180

ILO Convention 169, art 17(3)

181

UNDRIP, art 26(3)

182

General Recommendation No. 23: Indigenous Peoples : 1997/08/18 (General Recommendation No. 23)

183

General Recommendation No. 23 para 4(a)

119

indigenous peoples on land tenure fall within the Committee‟s construction of „the distinct culture, history, lifestyle‟ of indigenous peoples which states are enjoined to recognise.

There is copious national case-law in which the informal feature of indigenous peoples‟ claim to land has been recognised. Usually, it is implemented through the acceptance in evidence of the oral narration of the history, custom and tradition of indigenous peoples as a proof of land ownership. In Delgamuukw v British Columbia, the Supreme Court of Canada took the view that the use of oral histories as a way of proving aboriginal title to land is procedurally acceptable. In that case, the Gitksan or Wet‟suwet‟en hereditary chiefs sued as appellants, both individually and on behalf of their „Houses‟, to claim 58,000 square kilometres in British Columbia.

184

In response, British Columbia counterclaimed, urging the Supreme Court of Canada for a declaration that the appellants have no right or interest in the title of the portion of land being claimed, or alternatively, that the appellants‟ cause of action ought to be for compensation from the Government of Canada.

185

In proof of their case at trial court, the appellants relied on their sacred oral tradition about their ancestors, histories and territories as evidence of historical use and „ownership‟ of the alleged portion of the territories. The Trial Court however rejected this evidence as untenable.

186

In contrast to the approach by the High Court, the Supreme Court of Canada reiterated the need to give proper regard to the oral history of the appellants on their relationship with land. For many aboriginal nations, the Court held, oral histories are the only records of their past.

187

The use of oral testimonies as a reflection of indigenous peoples‟ land tenure carries significant weight in proving their proprietary rights. This viewpoint is judicially endorsed by the Australia High

Court in the case of Mabo v Queensland.

188

In that case, the Court took the view that propositions can be validly made in relation to native title to land without reference to documentary evidence.

189

The reliance on the oral traditions of indigenous peoples as a reflection of land tenure and its proof has been considered under regional human rights system. For instance, in the absence of a

184

Delgamuukw case (n 154 above) para 7

185

Delgamuukw case (n 154 above) para 7

186

Delgamuukw case (n 154 above) para 13

187

Delgamuukw case (n 154 above) para 84

188

Mabo case ( n 155 above)

189

Mabo case (n 155 above) para 64 per Brennan J

120

title deed, the Inter-American Court of Human Rights in the Mayagna (Sumo) Awas Tingni

Community v Nicaragua,

190

received evidence of oral histories on the migration, communal life style and, land use pattern of the Awas Tingni Community in proof of their title to land.

191

Since the evidence of oral histories remained largely unchallenged, the Court held, it is admissible.

192

Similarly, in Yakye Axa Indigenous Community v Paraguay,

193

the Court asserted that to guarantee the right of indigenous peoples to communal property, it should be borne in mind that land is closely linked to their oral expressions and traditions.

194

The case is not being made here that indigenous peoples‟ land claim is always informal in nature.

Treaties are a means of cession of indigenous land and the strategy of guaranteeing remaining land held by the indigenous nation.

195

This is most common with regard to indigenous land in the

Western hemisphere, indigenous communities in Africa such as the Maasai are a rare exception.

196

Where such a treaty relationship is proven, it can, therefore, translate an otherwise informal land ownership claim to a documented one.

3.2.3 Concept of parallel use

The parallel use to which indigenous peoples put land is another distinct feature of their land tenure. This feature refers to the right of indigenous peoples to a shared access and use of resources on land, including water, grass, trees, fruits, forests, sand, to mention a few.

197

The pattern of land tenure and use is a defining characteristic of the indigenous peoples‟ land ownership

198

as indigenous peoples migrate from time to time and may, as Anaya and Williams put it, „have overlapping land use and occupancy areas‟.

199

Indigenous peoples, particularly the

„nomadic communities‟, live in vast arid and semi-arid lands where there are scarce watering points which are best adaptable to such parallel use of resources.

200

In particular, pastoralists

190

Awas Tingni case (n 108 above)

191

Awas Tingni case (n 108 above) para 83

192

Awas Tingni case (n 108 above) para 100

193

Yakye Axa case (n 6 above)

194

Yakye Axa case (n 6 above) para 154

195

Daes Study (n 12 above) para 49

196

MA Martinez „Human rights of indigenous peoples: Study on treaties, agreements and other constructive arrangements between States and indigenous populations‟ (22 June 1999) E/CN.4/Sub.2/1999/20 22 June 1999 (Martinez Study) para 78

197

B Cousins „Embeddedness‟ versus titling: African land tenure systems and the potential impacts of the communal land rights

Act 11 of 2004‟ (2005) 16 Stellenbosch Law Review 492

198

Anaya & Williams (n 12 above) 45

199

Anaya & Williams (n 12 above) 33, 45

200

Okoth-Ogendo‟s tragic African commons (n 118 above) 12

121

such as the Maasai of Kenya and Tanzania, the Mbororo of Cameroon, the Tuareg and Fulani of

West Africa and the Khoesan of Southern Africa, occupy lands in arid and semi-arid regions that are suitable for livestock keeping.

201

This form of land use by indigenous peoples, it has been argued, „is the most feasible option of land holding‟.

202

Parallel use of land is not only beneficial to indigenous peoples such as those depending on marine and forest resources, it is significant for the management of forest resources.

203

Though not expressly mentioned, parallel use of land is recognised in key instruments relating to indigenous peoples‟ land rights. For instance, article 14(1) of the ILO Convention 169, recognises parallel use as an essential feature of indigenous peoples‟ land rights, in the sense that it requires state parties to take measures in appropriate cases for the protection of lands „not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities‟.

204

Similarly, the recognition of a parallel pattern of use of land as a feature of indigenous peoples‟ land tenure is discernible in the UNDRIP. Article 26 of

UNDRIP provides:

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

The above provisions do not expressly employ the phrase „parallel use‟ in relation to indigenous peoples‟ land rights, the words „otherwise used or acquired‟ validate the logic that parallel use of land is an additional description to traditional ownership and occupation of land.

Parallel use of land as a feature, it will seem, does not disturb exclusive claim of one indigenous group against the other in relation to land. For instance, it does not mean that since the Endorois

201

Working Group Report (n 22 above) 17

202

Wachira (n 12 above) 307

203

RE Johannes „Did indigenous conservation ethics exist?‟ (14 October 2002) SPC Traditional Marine Resource Management and Knowledge Information Bulletin 1-5; TS ConnorWe are part of nature: Indigenous peoples' rights as a basis for environmental protection in the Amazon Basin‟ (1994) 5 Colombia Journal of International Environmental Law & Policy 193,

201-204; Doubleday (n 47 above) 374

204

ILO Convention 169, art 14(1)

122

and the Ogiek are indigenous peoples in Kenya,

205

they can make claim to the exclusive ownership and use of land without distinction or differentiation. This point is made clearer in

Delgamuukw v British Columbia, where Lamer J explained the nature of indigenous peoples‟ land title in relation to exclusive use and occupation as follows:

Were it possible to prove title without demonstrating exclusive occupation, the result would be absurd, because it would be possible for more than one aboriginal nation to have aboriginal title over the same piece of land, and then for all of them to assert the right to exclusive use and occupation over it.

206

Although parallel use of land is a unique characteristic of indigenous peoples‟ land tenure, it does not exclude the concept of exclusive ownership which one indigenous peoples may enjoy against others in dealing with land. Notwithstanding the foregoing notion of land use and tenure of indigenous peoples, today, in modern states in Africa, there operates generally a contrasting worldview derived from international law principles which historically have existed as an agency of subordinating indigenous peoples‟ land use and land tenure.

3.3 Indigenous peoples’ land tenure and use v contrasting doctrines of international law

Whereas indigenous peoples‟ nature of land rights, as earlier shown, reflects the notion of land use and tenure with features of the latter defined in terms of its collective sense of ownership, informal or oral nature of claim, and parallel usage, international law had a different influence, as a result of its recognition and application of the doctrines of „discovery‟ and terra nullius.

Historically, these doctrines were engaged as part of the legal justification of the European expansion which expropriated in regions of the world including Asia, the Americas, Pacific

Islands, and Africa from the 16th to 20th centuries.

207

These doctrines are of limited application considering the role of conquests and treaties associated with exploration and land

205

„Country Report of the Research Project by the International Labour Organisation and the African Commission on Human and

Peoples‟ Rights on the constitutional and legislative protection of the rights of indigenous peoples: Kenya‟ (2009) http://www1.chr.up.ac.za/chr_old/indigenous/country_reports/Country_reports_Kenya.pdf (accessed 30 March 2013), iv, which lists the Ogiek and Endorois as parts of the indigenous peoples in Kenya

206

Delgamuukw case (n 154 above) 258

207

Daes (n 12 above) 468; Gilbert (n 11 above); Barume (n 12 above) 64-84,184; Gilbert & Couillard (n 63 above) 28-47;

Anaya‟s evolution (n 11 above); LG Robertson Conquest by law: How the discovery of America dispossessed indigenous peoples

of their lands (2007)

123

expropriation,

208

but the end result is the same. Essentially, they had the effect of dispossessing indigenous peoples of their land in such manner that has encouraged the subordination of their notion of land use and tenure to even the post-independent land tenure approach of modern states in Africa. This section discusses these two doctrines and demonstrates that they are at the root of the subordination of indigenous peoples‟ land use and tenure in modern Africa.

3.3.1 Doctrine of ‘discovery’

The consensus can be drawn from the official reports of United Nations bodies,

209

various submissions made by indigenous peoples or their representatives,

210

and academic writings,

211 that from the 16th to 20th centuries, the doctrine of discovery is an international law principle employed by the European countries, colonists, and settlers in dispossessing indigenous peoples all over the world of their lands, assets, and human rights. The doctrine emerged from the decrees by the Vatican which empowered Christian monarchs and states in Europe, initially,

Spain and Portugal,

212

and later Britain (self-appointed), to a right of conquest, sovereignty and superiority over non-Christian peoples, along with their lands, territories and resources in Africa,

Asia, and North as well as South America.

213

Under the doctrine of discovery, Christianity played a significant role both as a determinant to access to land and as a moral justification for civilisation and conquest.

214

The judiciary plays a crucial role in the earlier entrenchment of this

208

See A Pratt „Treaties vs Terra Nullius: “Reconciliation,” treaty-making and indigenous sovereignty in Australia and Canada‟

(2004) 3 Indigenous Law Journal 43; G Partington „Thoughts on terra nullius‟ http://www.samuelgriffith.org.au/papers/html/volume19/v19chap11.html (accessed 8 March 2014)

209

TG Frichner „Preliminary study of the impact on indigenous peoples of the international legal construct known as the doctrine of discovery‟ (2010) E/C.19/2010/13; Martinez Study (n 196 above ); Daes Study ( n 12 above)

210

IPACC Statement (n 22 above); Eastern Shawnee Tribe of Oklahoma, Confederated Tribes of the Grand Ronde Community of Oregon and others „The doctrine of discovery: The international law of colonialism‟ (2012) Conference Room Paper 11th session of the UN Permanent Forum on Indigenous Issues 7-18 May 2012

211

RJ Miller & L LeSage „The international law of discovery, indigenous peoples, and Chile‟ (2011) 89 Nebraska Law Review

819; RJ Miller, J Ruru, L Behrendt & T Lingberg Discovering indigenous peoples‟ lands: The doctrine of discovery in the

English colonies (2010); Anaya‟s evolution (n 11 above); Gilbert & Couillard (n 63 above) 28-47; RJ Miller & J Ruru „An indigenous lens into comparative law: The doctrine of discovery in the United States and New Zealand‟(2008) Legal Research

Paper Series Paper No. 2008 (Discovery paper); Robertson (n 207 above); RJ Miller „Native America, discovered and conquered

(2006) 9-24

212

Miller & Ruru (n 211 above) 1; Miller & LeSage (n 211 above) 829; Miller et al (n 211 above) 3-6

213

Anaya‟s evolution (n 11 above) 23-42; Frichner ( n 209 above) paras 5-7, 48; Miller et al (n 211 above) 9-24; Robertson (n

207 above) 1-27

214

Miller & LeSage (n 211 above) 826; Anaya‟s evolution (n 11 above) 25-26; Gilbert & Couillard (n 63 above) 29; Hansungule

(n 120 above)

124

doctrine.

215

The consequence of the doctrine is that „discoverers‟ emerged as owners of land while indigenous peoples, at best became tenants on their own land.

216

In Africa, the above elements have a unique aspect. The doctrine of discovery effected the partition which was launched under the banner of „commerce, christianity and civilisation‟, between 1880-1914.

217

In this period, the Berlin Conference (1884-1885) is important as it formalised the colonisation of Africa,

218

and embodied the three arms of the banner, particularly

„civilisation‟ in its General Act which refers to the assigned responsibility by the colonialising states to bring Africa into the mainstream of civilisation.

219

The prominent casualty of this civilising mission is the land of the indigenous communities and the institutions around it.

220

In addition to being perceived as uncivilised and lacking the juridical persona to own land, according to Ogendo, the collective form of land ownership and the customary institutions regulating their worldview about land were considered unrefined.

221

This understanding that indigenous peoples lack appropriate institutions or rationality to own or manage land is also reflected in the notion of trusteeship which featured prominently in international life at that time. It is evident in article 22 of the Covenant of the League of Nations, which states as follows:

To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the

215

Robertson (n 207 above) 40-76 who discusses particularly the role of court in the United States in the judicial evolution of the doctrine of discovery

216

Anaya‟s evolution (n 11 above) 25-26; Gilbert & Couillard (n 63 above); Robertson (n 207 above) x; Miller et al (n 211 above) 9-24

217

Gilbert & Couillard (n 63 above) 29; T Pakenham The scramble for Africa: White man's conquest of the dark continent from

1876 to 1912 (1991) 7, 20, 25

218

Gilbert & Couillard (n 63 above) 29

219

General Act of the Conference of Berlin Concerning the Congo, signed at Berlin, February 26, 1885 http://www.internationalcriminallaw.org/International_Crimes/Crimes%20Against%20Humanity/Slavery/GenAct_Berlin_InReC ongo1909.pdf (accessed 25 March 2013) which makes reference to the „development of commerce and civilisation‟, „advantages of civilisation‟ and „development of civilisation‟; see also Gilbert & Couillard (n 63 above)

220

On literature which generally discuss the negative impact of colonial and post colonial land policy on customary land tenure a see Banda (n 10 above) 312-335; AA Oba „The future of customary law in Africa‟ in Fenrich et al (n 10 above) 58-82;

Hansungule (n 120 above); Okoth-Ogendo‟s tragic African commons (n 118 above); Okoth-Ogendo‟s nature of land rights (n

118 above); Roberts & Mann (n 144 above); Elias (n 10 above)

221

Okoth-Ogendo‟s nature of land rights (n 118 above) 97

125

principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.

222

A case which is distinctive for its general dismissal of indigenous peoples‟ notion of land as unrefined and undeveloped is Re Southern Rhodesia. The Privy Council in that case stated that: some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with institutions or the legal ideas of civilised society

.

223

Despite a strong move to invalidate the doctrine of discovery,

224

it remains a part of modern international law.

225

Judicial recognition of the doctrine against a claim to ownership of land by indigenous peoples in the United States, dates as far back in 1823 in Johnson v M‟Intosh.

226

As

Robertson put it, in the United States and to a great extent in other former British colonies, the legal rule justifying claims to indigenous lands discovered by Europeans is traced back to the

1823 decision of Johnson v M‟Intosh.

227

In that case, the issue before the Supreme Court of the

United States was whether a non-Indian who acquired land from an Indian had obtained a valid title. It was the position of the Court that by virtue of the doctrine of discovery, the United States government had become the owner of the land within the United States.

228

This decision has been confirmed in a more recent times in City of Sherrill v Oneida Indian Nation of New York

229 where it was noted in the majority judgment of Supreme Court of the United States:

Under the „doctrine of discovery… fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign-first the discovering European nation and later the original States and the

United States.

230

222

Covenant of the League of Nations, adopted in Paris on 29 April 1919 http://www.austlii.edu.au/au/other/dfat/treaties/1920/1.html (accessed 24 March 2013) art 22; Gilbert & Couillard (n 63 above)

30

223

Re Southern Rhodesia (1919) AC 211, 233-234

224

RJ Miller „Doctrine of discovery‟ http://unpfip.blogspot.com/2011/07/robert-j-miller-doctrine-of-discovery.html (accessed 28

March 2013)

225

J Dugard International law: A South African perspective (2012) 131; I Brownlie Principles of public International law (2008)

123

226

Johnson v M‟Intosh, 21 U.S. (8 Wheat.) 543 1823 (Johnson case); see generally, Robertson (n 207 above) where the author reflects on the contribution of Johnson v M‟Intosh to the doctrine of discovery; Daes Study (n 12 above) para 29

227

Robertson (n 207 above) ix

228

Johnson case (n 226 above) 592

229

City of Sherrill v Oneida Indian Nation of New York 544 U. S. (2005) (Sherrill case)

230

Sherrill case (n 229 above) 3

126

The foregoing decisions, particularly Johnson v M‟Intosh have been regarded by indigenous peoples and their representatives,

231

as influential in justifying the application of the doctrine by the Courts in Australia,

232

Canada,

233

New Zealand,

234

and by the English Privy Council in cases about colonization in Africa.

235

3.3.2 Doctrine of terra nullius

The doctrine of terra nullius is another important principle of international law which contrasts with the notions of indigenous peoples‟ land use and tenure. This doctrine is singular in dehumanising indigenous peoples and their manner of use of land.

236

Originally, the principle meant that lands inhabited by non-Christians were unoccupied and therefore open to a right of possession and occupation.

237

In the context of colonialism, it is understood as an element of the doctrine of discovery which entitles the „discoverers‟ to the legal ownership of any area of land that was physically empty of human beings, and „any region that was populated but was governed by a human society, form of government, or laws that European legal regimes did not recognise‟.

238

States such as England, Holland, France and the United States depended on this doctrine in claiming that the lands occupied and used by indigenous nations were legally empty and open to annexation.

239

The theoretical application of the principle of terra nullius is continuing and most significant in its contrast to elements of indigenous peoples‟land use and tenure. The philosophical contributions of Adam Smith and John Locke of the contrast.

240

In Smith‟s scale of economic development, hunting and gathering is „the lowest and rudest state of society‟.

241

Indigenous peoples defined by a lifestyle of hunting and gathering as well as pastoralism were held as belonging in the „lowest and rudest state of society‟ in contrast with the advanced lifestyle of the

231

Discovery paper (n 211 above); IPACC Statement (n 22 above); see Robertson (n 207 above)

232

Western Australia v Ward [2002] 213 CLR 1, 76 ALJR 1098; Mabo case (n 155 above)

233

Kwicksutaineuk/Ah-Kwa-Mish First Nation v British Columbia, [2011] 55 C.E.L.R. (3d) 165, 15 B.C.L.R. (5th) 322 (British

Columbia Supreme Court); R v Sparrow [1990] 70 D.L.R. (4th) 385, 1 S.C.R. 1075 (Supreme Court of Canada)

234

Attorney-General v Ngati Apa [2003] 2 NZLR 643

235

Amodu Tijani v Secretary, Southern Nigeria, 2 AC 399 (1921); In re Southern Rhodesia, A.C. 211 (191)

236

Daes study (n 12 above) para 34

237

Daes study (n 12 above) para 35

238

Miller (n 224 above)

239

Miller (n 224 above) 21, 27-28, 49, 56, 63-64, 156, 159-60

240

J Locke The Works of John Locke, vol 4 (Economic Writings and Two Treatises of Goverment) [1691] http://oll.libertyfund.org/titles/763M (accessed 10 May 2013), see generally, chapter v where the author argues property right arises only where land is altered from its natural state

241

A Smith The wealth of nations Book v chapter 1 part 1

127

colonialising states.

242

In his theory of property, Locke posited that the application of labour to land is the means through which ownership of it can be safeguarded.

243

The failure to apply one‟s labour denies an individual or a group the legitimacy of calling the piece of land their own.

244

Justifying this postulation, Buchan and Heath argue that the use of land other than through settled agriculture is incapable of property rights.

245

In commenting in his land report on

Kenya, Sir Charles Eliot expressed this view. In his words:

I cannot admit that wandering tribes have a right to keep other and superior race out of large tracts merely because they have acquired the habit of straggling over far more land than they can utilise.

246

The worldview that lands not productively engaged were legally empty was challenged at the

International Court of Justice (ICJ) in Western Sahara Advisory Opinion.

247

In that matter, a main issue for consideration by the ICJ was whether Western Sahara was terra nullius at the time of colonialisation. After reviewing the issue, the ICJ was of the view that at the material time, the nomadic peoples of the Shinguitti country possessed rights to the lands through which they migrated from time to time. However, while in the further view of the Court, this evidence was sufficient to constitute legal ties between Western Sahara and the Mauritanian entity,

248

the Court was reluctant to fully endorse the recognition of the full rights of these peoples when it noted:

The migration routes of almost all the nomadic tribes of Western Sahara ... crossed what were to become the colonial frontiers and traversed, inter alia, substantial areas of what is today the territory of the Islamic

Republic of Mauritania. The tribes, in their migrations, had grazing pastures, cultivated lands, and wells or water-holes in both territories and their burial grounds in one or other territory. These basic elements of the nomads' way of life ... were in some measure the subject of tribal rights, and their use was in general regulated by customs.

249

Accordingly, it was the opinion of the ICJ that the nomadic lifestyle of the tribes in Western

Sahara only entitled them to „some‟ recognition which can be extinguished and hence, did not constitute enough proof the title of the land.

250

This position attracted the criticism that the ICJ

242

IPACC Statement (n 22 above)

243

Locke (n 240 above)

244

Locke (n 240 above) 121

245

B Buchan & M Heath „Savagery and civilization: From terra nullius to the “Tide of History” ‟(2006) 6 Ethnicities 8

246

Kenya Land Commission Report (1933) Government printer Nairobi 642 , cited by Gilbert & Couilliard (n 63 above) 32

247

Western Sahara Advisory Opinion 1CJ Reports 1975 (Western Sahara Advisory Opinion)

248

Western Sahara Advisory Opinion (n 247 above) para 152

249

Western Sahara Advisory Opinion (n 247 above) para 64

250

As above

128

allowed a Western conception of acquisition of title to trump a nomadic lifestyle as proof of title.

251

The reluctance of the Court totally to abrogate the principle has been supported by subsequent decisions in some domestic jurisdictions. In Mabo v Queensland, the High Court of Australia condemned the doctrine and established that it is not acceptable. However, it held that the title of aborigines may be extinguished by the power of the state.

252

A similar approach was adopted in the Canadian case of Delgamuukw v the Queen. In that case, the Supreme Court of Canada, after a rigorous analysis of the doctrine of terra nullius, took the view that while aboriginal title is compatible with the Constitution Act of 1982, it confers an inferior right when compared to ordinary fee simple title.

253

From these cases, it is evident that though the Court is reluctant to consider the land of the aborigines as legally empty, the recognition of their title is a decision of the State.

This is particularly the case with pastoralists and hunters and gatherers who self-identify as indigenous peoples in Africa, live a mobile life and portray the use of land which is different from the cultivating lifestyle of agriculturalists.

254

For instance, forest peoples in the Central

African Republic are regarded as incapable of enjoying land or tenure rights because „they do not comply with the permanent residence and domestication of the land that is deemed necessary in order to hold property rights‟.

255

The above doctrines, namely, discovery and terra nullius, in their application, arguably continue to have implications for indigenous peoples‟ lands in post- independence states in Africa.

3.4 Subordination of indigenous peoples’ lands in colonial and postindependent Africa

The twin doctrines of discovery and terra nullius have had negative impact on customary land tenure, and by extension, indigenous peoples‟ land use and tenure in colonial and postindependent Africa. This is discernible in the legislative approaches toward indigenous peoples‟

251

M Resiman „Protecting indigenous rights in international adjudication‟ (1995) 89 American Journal of International Law 354-

355

252

Mabo case (n 155 above) para 129

253

Delgamuukw case (n 154 above) para 190

254

IPAAC Statement (n 22 above); Kidd & Kenrick (n 120 above) 8-9; Wachira (n 12 above) 313

255

Kidd & Kenrick (n 120 above) 7; also see Hansungule (n 120 above) 5

129

land use and tenure in colonial and post-independent states in Africa which generally reflect the non-recognition of the land use and tenure of indigenous peoples.

3.4.1 Colonial legislation

Associated with the implementation of the doctrines of discovery and terra nullius is the reconstruction of land use and tenure by colonial authorities and subsequently, post-colonial states in a manner which differs from the worldview of indigenous peoples.

256

Through out

Africa, living customary law replaced by a European construct of a legal system brought by the colonising states.

257

This change was achieved through the common law, doctrines of equity and the statutes of general application which were introduced by the British in the „British West,

East, and Central Africa north of the Zambezi, and including Liberia and the Sudan

258

and, similarly, through the civil law model introduced by France, Belgium, Italy, Spain and Portugal in their colonies.

259

As is the case with Roman-Dutch law exported to South Africa, the former

Southern Rhodesia and the former High Commission Territories.

260

The effect of these models of a legal system is the introduction of a number of legal mechanisms which undermined and subordinated the notion of indigenous peoples‟ land use and tenure. As

Ogendo documents, in British colonial Africa, this was achieved through the Foreign Jurisdiction

Act.

261

Whatever notion of land tenure that communities in Africa may have had at that time, by this Act, the British government affirmed their power and control over overseas territories.

262

Second, almost immediately the application of English law became the fundamental law for

256

Banda (n 10 above) 315; Oba (n 220 above) 61; Hansungunle (n 120 above) 5; Okoth-Ogendo tragic African commons (n 118 above) 5-8; Chanock (n 135 above) 62; Nelson (n 10 above); C Besteman „Individualisation and the assault on customary tenure in Africa:Title registration programmes and the case of Somalia‟ (1994) 64 Africa 484; E Colson „The impact of the colonial period on the definition of land rights‟ in V Turner (ed) Colonialism in Africa, 1870–1960 (1971) 193–215

257

Oba (n 220 above) 58; Hansungule (n 120 above) 5; Okoth-Ogendo tragic African commons (n 118 above) 5; Nelson (n 10 above) 53; Chanock (n 135 above) 64; J Potter ʻCustomary land tenureʼ in Sub-Saharan Africa today: Meanings and contexts‟

55-75

258

Oba (n 220) 58; Nelson (n 10 above) 53; T Verhelst „Safeguarding African customary law: Judicial and legislative processes for its adaptation and integration‟ (1968) 8; AN Allot & E Cotran „A background paper on restatement of laws in Africa: The need, value and methods of such restatement‟ in University of Ife Institute of African Studies (ed) Integration of customary and

modern legal systems in Africa (1971) 21-24; Elias (n 10 above) 162

259

Nelson (n 10 above) 53; Allot & Contra (n 258 above) 23

260

Nelson (n 10 above) 53; AN Allot „Towards the unification of laws in Africa‟ (1965) 14 International Law & Comparative

Law Quarterly 366, 371-372

261

Okoth-Ogendo‟s tragic African commons ( n 118 above) 5

262

As above

130

administering the colonised states in nearly all contexts, including land.

263

The third legal mechanism that undermines the native nature of land, Ogendo argues, is an Advisory Opinion which emanated from the Law Officers of the Crown on 13 December 1899.

264

The effect of this

Advisory Opinion is to confer on the „sovereign‟ the power of control and disposition of land considered as vacant or unoccupied in the colonised states.

265

In the conception of African customary land law ownership, there is nothing like „unused‟, „vacant‟, „ineffectively occupied‟, or „land without title holders‟.

266

Contrary to an African customary concept of ownership and possession, the sovereign could declare lands as Crowns lands or grant them to individual in fee simple or for any term. In line with this Advisory Opinion, the British Government immediately declared colonies they considered as lacking a settled form of government as having no power to own land, thereby, making lands available for settlers in terms of English proprietary principles.

267

This legal framework indirectly accelerated the legal expropriation of indigenous peoples‟ lands.

268

The situation was not any different in the French, German or Belgian colonial Africa.

269

A different legal framework was put in place in the colonies belonging to these states which made undocumented lands, „at the stroke of a pen‟, terra nullius.

270

A German imperial decree of 15

June 1896 requires that private or concessionary title in Cameroon had to be established with the colonial state authorities, otherwise such lands will be regarded as vacant and empty without a master.

271

One reason for this practice is that indigenous customary law was considered incapable of vesting title in relation to land in any group or individual.

272

Another reason is that it was strongly held by colonial anthropologists and administrators that the customary law of

263

Okoth-Ogendo‟s tragic African commons (n 118 above) 5; J MacAuslan „Only the name of the country changes: The diaspora of European land law in Commonwealth Africa‟ in C Toulmin & J Quan (eds) Evolving land rights, policy and tenure in Africa

(2000)

264

Okoth-Ogendo‟s tragic African commons (n 118 above) 5

265

As above

266

J Fairhead „Food security in North and South Kivu (Zaire)‟ (1989) Final consultancy report for Oxfam, part 1, section 2, 99;

D Biebuyck „Systemes de tenure fonciere et problemes fonciers au Congo‟ in D Biebuyck (ed) African agrarian systems (1963)

83-100; Elias (n 10 above) 163

267

Okoth-Ogendo‟s tragic African commons (n 118 above) 6

268

Okoth-Ogendo‟s tragic African commons (n 118 above) 5

269

Okoth-Ogendo‟s tragic African commons (n 118 above) 6; IPACC Statement (n 22 above)

270

Okoth-Ogendo‟s tragic African commons (n 118 above) 6

271

Cited in IPACC Statement (n 22 above)

272

Okoth-Ogendo‟s nature of land rights (n 118 above) 97

131

indigenous communities was merely a stage in the development of the African state and would disappear as Western civilisation became increasingly dominant in Africa.

273

Arising from this development is a misconceived version of customary law which, viewed customary land tenure through a number of stereotypes. As Colson observes:

[C]ommon official stereotypes about African customary land law thus came to be used by colonial officials in assessing the legality of current decisions, and so came to be incorporated in „customary‟systems of tenure.

274

An example of such a stereotype is that customary land tenure is inalienable and communal in nature.

275

In a number of instances properties held collectively by indigenous peoples were declared „repugnant‟ to a colonial understanding of property.

276

The consequence was that the

European concept of private or individualised legal tenure became prominent in every colony and infiltrated into customary land rights. Colson, again, describes how this was achieved in colonial Africa:

If no private person appeared to hold such rights over a given area, then they assumed that the rights must vest in the political unit whose members used the region. Failing this, they belonged to the newly created

[colonial] government which could then alienate the land on its own terms to commercial corporations or to

European settlers.

277

Another illustration of a stereotype about customary land tenure is the misconception that the institution of chiefs play a prominent role in customary land tenure, and its configuration.

278

In describing this misconception and configuration, Channock declares:

There is a profound connection between the use of the chieftaincy as an institution of colonial government and the development of the customary law of land tenure. The development of the concept of a leading customary role for the chiefs with regard to ownership and allocation of land was fundamental to the evolution of the paradigm of customary tenure...In the broad approach to the institutions of primitive

273

Oba (n 220 above) 61; Okoth-Ogendo‟s tragic African commons (n 118 above) 8; Verhelst (n 258 above) 83

274

Colson (n 256 above) 196

275

Banda (n 10 above) 316-322; Elias (n 10 above) 163, 164

276

Okoth-Ogendo‟s tragic African commons (n 118 above) 8; K Mann & R Roberts (eds) Law in colonial Africa (1990) 13

277

As above; also see Banda (n 10 above)

278

Banda (n 10 above) 320, 321; Chanock (n 135 above) 64

132

government, the chiefs were seen as the holders of land with rights of administration and allocation. Rights in land were seen as flowing downward.

279

While the above is generally carried out in the context of customary law, it came with a negative impact on indigenous peoples‟ land use and tenure. First, colonial policy, ensured that lands, such as those of pastoralists and hunter-gatherers which are collectively owned were used for the profit of the colony.

280

These included making them available to those members of the population, that is the farmers who used the land for commercial purposes, including agriculture and neglect of populations such as hunter-gatherers who made no such investments on land.

281

Second, and more fundamentally, it relocated the radical title to land in the sovereign state, that is the colonial states,

282 or the chiefs, as the case may be.

283

This idea is inconsistent with indigenous peoples‟ conception of leadership which has little space for chieftaincy institution.

For instance, the Maasai in east Africa have been documented as having no chiefs but representatives,

284

hence, „chiefs‟, as the legal institution to control, manage, and transfer land title, appears strange and unknown to this group.

3.4.2 Post-independent Africa

The foregoing trend has not changed in post-colonial African states: the misconception about customary law as influenced by the twin doctrines of „discovery‟ and „terra nullius‟ and the institutions that propagated it were passed on to post-colonial states in Africa.

285

Akin to the radical title which resided in the colonial state, states in Africa retain the radical title to land which enables them to „regulate the use of indigenous lands without much regard for constitutional limits on governmental power that would otherwise be applicable‟.

286

The constitutions of several states in Africa and, indeed, land specific statutes generally vest the

279

Chanock (n 135 above) 64

280

Colson (n 256 above) 207

281

Nelson (n 10 above) 54; IPACC Statement (n 22 above)

282

Elias (n 10 above) 163

283

Chanock (n 135 above) 64

284

See http://www.africaguide.com/culture/tribes/maasai. htm(accessed 30 March 2013); also see Inter-American Court

Communidad Yanomami v Brazil, decision of 5 March 1985, Case 7615 (Yanomami case), reprinted in Inter- American

Commission on Human Rights and Inter -American Court of Human Rights Inter American Yearbook of Human Rights (1985) who are also regarded as having no chiefs but leaders http://www.rainforestinfo.org.au/background/people.htm (accessed 30

March 2013)

285

Banda (n 10 above) 316, 317; Oba (n 220 above) 65; Hansungule (n 120 above) 5; Okoth-Ogendo‟s tragic African commons

(n 118 above) 9; S Berry „Hegemony on a shoestring: Indirect rule and access to agricultural land‟ (1992) 62 Africa 327; P

Shipton & M Goheen „Understanding African land-holding: Power, wealth, and meaning (1992) 62 Africa 307

286

Daes Study (n 12 above) para 82; Wachira (n 12 above) 316

133

ownership of land in the state or at least provide that land can be acquired by states on the ground of public policy.

287

The general situation of indigenous peoples in relation to the foregoing in post-colonial Africa moved Hansungule to observe:

The native State-successor of the colonial State-continued the racist and genocidal practices against indigenous peoples such as driving them from their lands which are declared „property of the State‟ in which the State had the sole right to administer, manage and see to their exploitation.

288

Arguably, this historical trend of the subordination of the land of indigenous peoples is furthered through the adverse effects of climate change on indigenous peoples‟ land tenure and use in modern states in Africa.

3.5 Cause and effect of climate change as threat to land-tenure and use

Generally, in discussing the adverse impacts of climate change, literature identifies two layers of impact, namely, direct and indirect.

289

The direct impacts refer to documented effects of a changing climate on the physical environment, whereas indirect impacts refer to measures in response to the adverse impacts of climate change.

290

In relation to the subordination of indigenous peoples‟ lands in the context of climate change in Africa, this categorisation is limited. It fails appropriately to capture, as it is attempted here, the varying dimensions of the threat experienced by indigenous peoples in relation to their land tenure and use in the cause and effect of climate change in Africa.

287

See chapter 5 for a detailed discusion of this in the context of national climate change regulatory framework in relation to indigenous peoples‟ lands

288

Hansungule (n 120 above) 5

289

The direct and indirect impact description is made in „Declaration of Indigenous Peoples of Africa on Sustainable

Development and Rio +20‟ http://www.uncsd2012.org/index.php?page=view&nr=1151&type=230&menu=38#sthash.T8Py7xbC.dpuf (accessed 14 May

2014); Resolution 10/4, UNHRC Res 10/4, UN Doc. A/HRC/10/29 (20 March 2009) (Resolution 10/4); on discussion relating to impact of climate change particularly its mitigation measures on indigenous peoples, see „Climate change, human rights and indigenous peoples‟ submission to the United Nations High Commissioner on Human Rights by the International Indian Treaty

Council (IITC Submission); „Climate change, forest conservation and indigenous peoples rights‟ submission by Global Forest

People (GFP submission ) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Global_Forest_Coalition_Indigenous_Peoples_ClimateCh ange.pdf accessed 26 October 2012; „Report on the impacts of climate change mitigation measures on indigenous peoples on their territories and lands‟ E/C 19/2008/10 (Unedited version) (Indigenous peoples climate change mitigation report); Greenpeace

Briefing „Human rights and the climate crisis: Acting today to prevent tragedy tomorrow (Greenpeace report) http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Greenpeace_HR_ClimateCrisis.pdf (accessed 27 October

2012)

290

Resolution 10/4 (n 289 above); IITC Submssion (n 289 above)

134

3.5.1 Cause of climate change as a threat

Activities which cause climate change have a link to the expropriation of indigenous peoples‟ lands in Africa and further the distruption of their land use and tenure. In the main, contemporary land use and tenure policies in modern African states are informed by the economic utility of land and individual ownership in a manner which differs from the perception of indigenous peoples‟ land tenure and use.

291

This approach reflects the definition of „land use‟ as understood in a climate change context as „economic purposes for which land is managed‟.

292

In line with the trend in the historic expropriation of indigenous peoples‟ lands, contemporary states in Africa exercise the power of eminent domain to take over land, in order to privatise title for realising the

„global faith‟ of economic development.

293

This conception of land use and tenure follows a market-oriented development model propagated by a number of international lending and development policies, such as those of the World Bank,

294

United Nations Development

Programme (UNDP),

295

FAO,

296

the United States Agency for International Development

(USAID),

297

and the European Union (EU).

298

This development model is driven by powerful states, transnational corporations, and multinational companies and is inspired by a worldview which has no regard for indigenous peoples‟ concepture of land tenure and use. In the words of Doyle and Gilbert, this model has reduced indigenous peoples to the „sacrificial lambs‟ of development, 299

because of „development aggression‟, 300

which runs through most states in Africa at the expense of the recognition of indigenous peoples‟ notion of land-use and tenure, in favour of a use and tenure system that

291

Banda (n 10 above) 325

292

IPCC „Summary for policymakers land use, land-use change, and forestry‟ (2000) 21

293

G Rist The history of development: From western origins to global faith (2009) 21-24

294

World Bank Land policy for growth and poverty reduction (2003) 9-17

295

United Nations Development Programme Attacking poverty while improving the environment initiative (1999) 13

296

FAO Voluntary guidelines on the responsible governance of tenure of land , fisheries and forests in the context of national

food security (2012) 17-20

297

United States Agency for International Development Nature,wealth and power:emerging practice for revitalizing rural Africa

(2002) 15

298

European Union Land policy guidelines (2004) 4

299

As above

300

Report of the UN Special Rapporteur, Rodolfo Stavenhagen, Mission to the Philippines, UN Doc. E/CN.4/2003/90, Add. 3, para 30

135

supports large scale agriculture, mining and logging, road building, as well as conservation programmes for economic purposes.

301

The modern approach constitutes a development path that contributes to global climate change.

302

In relation to agricultural activities, according to Amin, a massive agrarian drive signifies that the control and access to natural resources has become the overriding objective of most states.

303

Evidence of policies, laws and practices in relation to the agricultural use of land belonging to indigenous peoples, as Barume documents, can be found in different regions of

Africa since independence,

304

in nations such as Kenya,

305

Tanzania,

306

and Rwanda.

307

Evidence of large scale plantations can be found in Cameroon, Kenya, Tanzania, Mozambique, Namibia,

South Africa, and Ethiopia, which, in addition to disrupting the land use of indigenous peoples, also, through displacement, compromises their tenure rights.

308

There is evidence that such widespread agricultural projects, including those associated with indigenous peoples‟ lands, in contributing to large scale clearing of forests, are a driver of climate change.

309

Indigenous peoples‟ lands are often conceded to private or public business, including logging companies,

310

operating in African states, including the Democratic Republic of Congo (DRC),

Nigeria, Cameroon, Tanzania, Zambia and Uganda.

311

For instance, in the DRC, an area of forest about 532 000 hectares in size, is the estimated loss per year due to degradation and activities including uncontrolled logging.

312

Some indigenous peoples‟ lands is especially rich in minerals.

301

Barume (n 12 above) 64-71; TMW Koita, „Land allocation and the protection of biodiversity: A case study of Mbunza‟ in

Hinz & Ruppel (n 9 above) 65-87

302

World Development Report Development and climate change (2010) 1-35; C Toulmin Climate change in Africa (2009) 77

303

S Amin „The challenge of globalisation: Delinking‟in South Centre (Independent Commission of the South on Development

Issues) (1993) 133; see also Toulmin (n 302 above)75-76

304

Barume (n 12 above) 69; also see Toulmin (n 302 above) 77

305

Barume (n 12 above) 65

306

R Yeager & NN Miller Wildlife, wild death: Land use and survival in Eastern Africa (1986) 24; OPK Olengurumwa 1990‟s

Tanzania laws reforms and its impact on the pastoral land tenure (A paper prepared for Pastoral Week at Arusha from 14-16

February 2010) 9

307

Olengurumwa (n 306 above) 22

308

S Vermeulen & L Cotula „Over the heads of local people: Consultation, consent, and recompense in large-scale land deals for biofuels projects in Africa‟ (2010) 37 Journal of Peasant Studies (2010) 899

309

RW Gorte & PA Sheikh „Deforestation and climate change‟ (March 2010) 13; J Helmut & EF Lambin „What drives tropical

deforestation A meta-analysis of proximate and underlying causes of deforestation based on subnational case study evidence‟

(2001) Land-Use and Land-Cover Change (LUCC) Project IV 24; Gorte & Sheikh (n 309 above) 13; Helmut & Lambin (n 309 above) 24

310

Barume (n 12 above) 70

311

See generally „forest country information‟ <www.fao.org/forestry/country/en/ > (accessed 21 June 2013)

312

< www.fao.org/forestry/country/57478/en/cod/ > (accessed 21 May 2013)

136

This is the case with the Niger Delta region in Nigeria, which is rich in crude oil,

313

and the

Central Kalahari Game Reserve (CKGR) in Botswana, rich in diamonds.

314

The mineral known as coltan, widely sought after by the mobile phone industry is reportedly found on Batwa ancestral lands in the DRC.

315

The implementation of the foregoing projects not only represents the disruption of land use as understood by indigenous peoples, it results in dispossession and displacement which compromise their tenure system.

316

As has been shown, activities, including logging and mining, have implications for global climate change. They are a significant source of carbon emissions, amounting to about one-fifth of global man-made emissions, thereby accelerating global rate of climate change.

317

Oil exploration, particularly in sub Saharan Africa, is typified by environmental degradation resulting from activities including gas flaring, deforestation and other negative practices that have implications for climate change.

318

The sites for these activities often include the land of indigenous peoples who traditionally live a hunting and gathering lifestyle which barely has an impact on the environment. However, this situation is rapidly changing as the use to which these lands are put is a radical departure from the traditional conception of land use and tenure, and has become a major source of environmental degradation as well as global warming. For instance, oil exploration, which is reported as a major threat to mangrove forest in the Niger Delta, Nigeria,

319 involves territories which indigenous groups, such as the Ogoni, Efik and Ijaw, inhabit.

320

Besides its associated consequences,

321

energy-related burning, that is, oil, gas and coal

313

TC Nzeadibe et al Farmers' perception of climate change governance and adaptation constraints in Niger Delta region of

Nigeria (2011) 11

314

L Odysseos „Governing dissent in the Central Kalahari Game Reserve: „Development‟, governmentality, and subjectification amongst Botswana‟s bushmen‟(2011) 8 Globalizations 439

315

Barume (n 12 above) 69

316

Kidd & Kenrick (n 120 above) 22

317

Greenpeace Deforestation and Climate Change <www.greenpeace.org.uk/forests/climate-change> (accessed 22 March 2013);

Gorte & Sheikh (n 309 above) 15; Helmut & Lambin (n 309 above) 28

318

ED Oruonye „Multinational oil corporations in Sub- Sahara Africa: An assessment of the impacts of globalisation‟ (2012) 2

International Journal of Humanities & Social Science 152

319

World Rainforest Movement „Mangrove Destruction by Oil in Niger Delta‟ (2011) <www.wrm.org.uy/articles-from-the-wrmbulletin/section1/mangrove-destruction-by-oil-in-niger-delta/>(accessed 27 July 2013)

320

„The rights of indigenous peoples: Nigeria‟

<www1.chr.up.ac.za/chr_old/indigenous/country_reports/Country_reports_Nigeria.pdf> (accessed 28 May 2013)

321

SI Oni & MA Oyewo „Gas flaring, transportation and sustainable energy development in the Niger-Delta‟(2011) 33 Journal of

Human Ecology 21; World Rainforest Movement, Nigeria: Gas flaring-Major contributor to climate change and human rights

abuses <www.wrm.org.uy/bulletin/136/Nigeria.html> (accessed 28 May 2013)

137

contributes 85 per cent of human generated emissions which have led to the warming of the world, according to the Intergovernmental Panel on Climate Change (IPCC).

322

Road and dam construction is considered crucial to the development of several sectors of the economy, but all have played a part in the destruction of forests,

323

on which some indigenous peoples in Africa depend. This contributes to climate change as carbon stored in the trees is released into the atmosphere as soon as the trees are cut down by loggers, for mining companies and other actors.

324

Dam construction which results in displacement and the dispossession of land belonging to indigenous populations, feature in Kenya-the Sondu Miriu River,

325

Namibia- the Epupa dam,

326

and Uganda-Bujagali dam.

327

The implementation of these projects comes with a considerable disruption of subsistence lifestyle and urban migration,

328

which has implications for climate change as it has been shown that populations in their migratory route may be constrained to adopt a way of life which contributes to deforestation, a major driver of climate change.

329

In relation to conservation, the notion that nature must be preserved from human interference has long been the underlying basis for global conservation efforts,

330

often at the expense of the indigenous peoples‟ land use

331

as well as traditional tenure associated with it.

332

Conservation efforts in Central Africa, for instance, have led to the dispossession of indigenous peoples in that part of Africa through a legal regime which vests title in forests in the states. According to

Cernea and Schmidt-Soltau, the trend in this regard has been on-going for a long time, and is

322

REH Sims et al „2007: Energy supply‟in B Metz et al (eds) Climate change 200: Mitigation. contribution of Working Group

III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (2007) 261-262

323

„Rain Forest Deforestation‟ <www.factsanddetails.com/world.php?itemid=1299&catid=52&subcatid=329> (accessed 28

March 2013); Gorte & Sheikh (n 309 above) 15; Helmut & Lambin (n 309 above) 27

324

World Rainforest Movement „What are underlying causes of deforestation?‟ <www.wrm.org.uy/deforestation/indirect.html>

(accessed 18 June 2013)

325

World Rainforest Movement „Dams Struggles against the modern dinosaurs‟

<www.wrm.org.uy/deforestation/dams/texten.pdf> (accessed 27 May 2013) (Dam Struggles)16-17

326

Dam Struggles (n 325 above) 28

327

Dam Struggles (n 325 above) 29

328

Dam struggles (n 325 above) 28-29

329

„Migration and climate change‟ <www.iom.int/cms/envmig> (accessed 18 March 2013)

330

M Colchester Salvaging nature: Indigenous peoples, protected areas and biodiversity conservation (2003) 2-3; W Adams,

„Nature and the colonial mind‟ in W Adams & M Mulligan (eds) Decolonizing nature: Strategies for conservation in a post-

colonial era (2003) 25

331

Barume (n 12 above) 68-70; MM Cernea & K Schmidt-Soltau „Poverty risks and national parks: Policy issues in conservation and resettlement‟ (2006) 34World Development 1808–30

332

Colchester (n 330 above) 5

138

characterised by forced removal without compensation.

333

A similar occurrence is found in projects involving forest-based Batwa in the DRC,

334

and in Uganda.

335

Conservation projects generally present opportunities to indigenous peoples who are forest-dependent by the use of their conservation knowledge and skills in promoting sustainable management of the projects as a means of reducing emission of greenhouse gases which result in a changing climate.

336

However, in occasioning dispossession, taking over control and use of land of indigenous peoples, conservation has implications for climate change as it is associated with slippage in the global effort to mitigate climate change in that it constrains indigenous peoples into a lifestyle which may further environmental degradation elsewhere. As Meyfroidt and Lambin have demonstrated, leakages in conservation projects may be counterproductive as what is viewed as a gain in one conservation effort may generate activities which promote deforestation elsewhere, and be a source of climate change.

337

To sum up, generally, in all activities which serve as triggers of climate change there is clear loss of land and associated tenure of indigenous peoples akin to the trend in international law.

However, this is not the only threat to indigenous peoples‟ land tenure and use that reflects the historical trend of subordination of their notion of land tenure and use. In achieving the similar end of displacement, this trend is noticeable in the emerging narratives of the adverse effects of climate change on the physical environment of the remaining land occupied by indigenous peoples in Africa.

3.5.2 Climate change as a threat

In Africa, climate change contributes to lack of viability of the land of indigenous peoples, leads to migration, and thus make their land vacant for state occupation for use to serve national

333

Cernea & Schmidt-Soltau (n 331 above) 1808–30; Kidd & Kenrick (n 120 above) 10-11

334

AK Barume Heading towards extinction? Indigenous rights in Africa: The case of the Twa of the Kahuzi–Biega National

Park, Democratic Republic of Congo ( 2000) 72-77; L Mulvagh „The impact of commercial logging and forest policy on indigenous peoples in the Democratic Republic of Congo‟ <www.iwgia.org/iwgia_files_publications_files/IA_4-

06_Dem_Rep_Congo.pdf > (accessed 28 May 2013) 2

335

C Kidd & P Zaninka „Securing indigenous peoples‟ rights in conservation: A review of South-West Uganda (2008) 16

336

C Robledo, J Blaser & S Byrne „Climate change: What are its implications for forest governance‟ in LA German, A Karsenty

& A Tiani (eds) Governing Africa‟s forest in a globalised world (2010) 355, 356; Desmet (n 4 above) 652-653

337

P Meyfroidt & EF Lambin 'Forest transition in Vietnam and displacement of deforestation abroad‟ (2009) 106 Proceedings of

the National Academy of Sciences of the United States 16139; see also R Sedjo „Local logging: Global effects‟ (1995) 93 Journal

of Forestry 25, the author finds that all the conservation efforts made in United States west were offset by increases in timber extraction in the south of the United States and in Eastern Canada

139

economic ends.

338

In West Africa, climatic impact on the land of indigenous peoples such as the

Bororo, and Tuareg,

339

include the destruction of grazing lands, drought, loss of access to safe water, the destruction of plants and animals, the loss of traditional fishing activities and displacement.

340

In east Africa, there is evidence of the effects of climate change in relation to several indigenous peoples‟ groups, among whom are the Maasai, Ogiek, Endorois, and Yaaku in Kenya.

341

These peoples continue to experience conditions, including drought, flood, famine, displacement, and loss of life, which are due to climate change.

342

In an article referring to research commissioned by the Christian Aid in Northern Kenya, Beaumont depicts pastoralists in that region as „climate canaries‟, who are fated to become the first victims of world climate change as a result of its impacts on their land.

343

This example signifies the peculiar impacts being faced by these peoples in the light of climate change.

Similar evidence has been reported in central Africa and the great lakes region, in the remaining land occupied by the Batwa in Rwanda, Burundi, Uganda and the DRC. They are known as Baka in Central African Republic (CAR) and Gabon, Baka and Bagyeli in Cameroon.

344

Adverse experiences, including a lengthy dry season are affecting the agricultural calendar and bringing about a scarcity of forest products, such as fruits and tubers, thereby disturbing their cultural lifestyle.

345

More frequently, for the Mboboro and other pastoralists in the same region, transhumance calendars are being altered from January to late October due to a shift in the start of the dry season. This shift does not avert the problem but rather increases the number of conflicts they have with farmers, as they now go on transhumance when the crops have not yet been harvested in the valleys.

346

In the Horn of Africa, the Doko, Ezo, Zozo and Daro Malo in

338

„Agrofuels and the myth of the marginal lands‟ A briefing by the Gaia Foundation, Biofuelwatch, the African Biodiversity

Network, Salva La Selva, Watch Indonesia and EcoNexus (September 2008) www.cbd.int/doc/biofuel/Econexus%20Briefing%20AgrofuelsMarginalMyth.pdf (accessed 24 May 2013)

339

Working Group Report (n 22 above) 18

340

Indigenous Peoples of Africa Coordinating Committee (IPACC) „West Africa‟ http://www.ipacc.org.za/eng/regional_westafrica.asp (accessed 15 September 2011)

341

Tebtebba Foundation „Indigenous peoples, forests & REDD Plus: State of forests, policy environment & ways forward‟

(2010) 440 (Tebtebba Foundation); Centre for Human Rights (CHR) „Kenya‟ http://www.chr.up.ac.za/chr_old/indigenous/country_reports/Country_reports_Kenya.pdf (accessed 15 March 2013)

342

IWGIA The World Indigenous Report (2011) 410; Tebtebba Foundation (n 341 above).

343

P Beaumont „Kenya‟s herdsmen are facing extinction as global warming destroys their lands‟ (November 12, 2006) The

Observer

344

Working Group Report (n 22 above) 16

345

Tebtebba Foundation (n 341 above) 481

346

As above

140

the Gamo Highlands, experience increasing pressures on local resources and great hardship through the rise in temperature, the scarcity of water, dying animals and less grazing land.

347

The Amazigh (or Imazighn), also known as the Berbers, in North Africa

348

face an extreme scarcity of water, the degradation of palm trees, a deterioration of a unique tree species in southwestern Morocco and salinisation in a changing climate.

349

In the southern part of Africa, the San and Basarwa of the Kalahari basin,

350

contend with increasing dune expansion and increased wind speeds which have resulted in a loss of vegetation and have negatively impacted on traditional cattle and goat farming practices.

351

Indeed, the concern has been expressed that as the

Kalahari dunes spread, this will affect attract huge tracts of land in Botswana, Angola,

Zimbabwe and western Zambia where these indigenous peoples live.

352

The foregoing scenarios on the lands of indigenous peoples often lead to their displacement. For instance, in the report following a 2012 commissioned research by the United Nations High

Commissioner for Refugees (UNHCR Report) which sought to explore the extent to which climatic change and environmental impacts have played a role in decisions of populations to move away from their homelands in the East and Horn of Africa, there are findings indicating that the climatic threat to land use was a reason for movement.

353

According to the UNHCR

Report, drought, flooding and disrupted rainfall, perceived as arising from changes in climatic condition have led to the displacement of pastoralists who are majorly from such African States as Uganda, Eritrea, Ethiopia, Somalia and Eastern Sudan.

354

It was noted that pastoralists from

347

„Ethiopia: the changing climate in Gamo highlands‟ - Video Report http://indigenouspeoplesissues.com/index.php?option=com_content&view=article&id=11105:ethiopia-the-changing-climate-ingamo-highlands-video-report&catid=68:videos-and-movies&Itemid=96 (accessed 20 September 2011).

348

Working Group Report (n 22 above) 18-19

349

International Institute for Sustainable Development (IISD) „Climate change in three Maghreb countries Special Report on

Selected Side Events at UNFCCC COP-7‟ (2001) IISD http://www.iisd.ca/climate/cop7/enbots/pdf/enbots0204e.pdf (accessed

15 December 2013)

350

Working Group Report (n 22 above) 17

351

UNPFII „The effects of climate change on indigenous peoples‟ http://www.un.org/esa/socdev/unpfii/en/climate_change.html

(accessed 15 December 2013); Shifting sands: climate change in the Kalahari‟ http://journals.worldnomads.com/shrummer16/story/52708/South-Africa/Shifting-Sands-Climate-Change-in-the-

Kalahari(Accessed 15 December 2012)

352

R Mwebaza Is climate change creating more environmental refugees than war in Africa? (3 August 2010) http://www.issafrica.org/iss-today/is-climate-change-creating-more-environmental-refugees-than-war-in-africa (accessed on 1

November 2013)

353

T Afifi et al Climate change, vulnerability and human mobility: Perspectives of refugees from the East and Horn of Africa

(United Nations University Institute for Environment and Human Security, Report No. 1, June 2012)

< www.reliefweb.int/sites/reliefweb.int/files/resources/East%20and%20Horn%20of%20Africa_final_web.pdf> (accessed 15

October 2013)

354

Afifi et al (n 353 above) 24

141

the south-west of Uganda, have permanently moved across the border into Northern Tanzania.

355

Similarly, pastoralists from Ethiopia, as reported, have crossed the border into Kenya and other regions in Ethiopia due to the prolonged drought.

356

In an earlier study of 2009, it was concluded that drought has so affected the traditional pasture land of pastoralists in North Somalia that some of these peoples have lost livestock due to a lack of pasture and water. Consequently, they have given up their traditional livelihood to settle permanently in the cities, where they usually join the urban poor and Internally Displaced

Persons (IDPs), or in the countryside, where they create enclosures.

357

Although it can be traced to other factors, severe climatic variations are the triggers for displacement in Northern Kenya.

358

Estimates in 2011 put the figure of those displaced in northern Kenya as a result of a range of factors including drought at around 4000.

359

The ecological changes including drought, the Fulbe or Mbororo herders in the western part of Africa have altered their transhumance patterns.

360

In

Nigeria, for instance, the general trend in the migratory drifts of the Mbororo has been from northwest to southeast.

361

3.5.3 Effects of climate response as a threat

Global climate change response initiatives have a potential negative impacts on indigenous peoples‟ land tenure and use. Climate change response measures are categorised into adaptation and mitigation. Adaptation is the adjustment or response that moderates harm or exploits beneficial opportunities in climate change, whereas mitigation connotes human intervention to

355

Afifi et al (n 353 above) 41, reporting the viewpoint of an official from Ministry of Agriculture in Uganda

356

Afifi et al (n 353 above) 41, reporting the viewpoint of International Organisation for Migration, Ethiopia

357

V Kolmannskog Climate change, disaster, displacement and migration: Initial evidence from Africa (New Issues in Refugee

Research, Research Paper No. 180, December 2009) 6; S Cechvala Rainfall & migration: Somali-Kenyan Conflict (December

2011-ICE Case Number 256) <www1.american.edu/ted/ICE/somalia-rainfall.html> (accessed 9 November 2013)

358

NM Sheekh et al Kenya‟s neglected IDPs: Internal displacement and vulnerability of pastoralist communities in Northern

Kenya (8 October 2012) <www.issafrica.org/uploads/SitRep2012_8Oct.pdf>, (accessed 8 November 2013), where the authors argue that factors including conflict, legacy of colonialism and violence were also part of the major causes of displacement 2; but see TL Weiss & JD Reyes „Breaking the cycle of violence: Understanding the links between environment, migration and conflict in the greater horn of Africa‟ in UJ Dahre (ed) Horn of Africa and peace: The role of the environment (A report of the 8th Annual

Conference on the Horn of Africa, Lund, Sweden, 7-9 August, 2009) 97-108

< www.sirclund.se/Conf2009.pdf> (accessed 8 November 2013) where the authors contend that both gradual environmental change and extreme environmental events influence population movements in the region.

359

Sheekh et al (n 358 above) 5

360

„Nigeria‟

<www1.chr.up.ac.za/chr_old/indigenous/documents/Nigeria/Report/The%20History%20And%20Social%20Organisation%20Of

%20The%20Pastoral%20Fulbe%20Society.doc.> (accessed 28 October 2013)

361

As above

142

reduce the sources or enhance the sinks of greenhouse gases.

362

In relation to adaptation, Least

Developing Countries (LDC), most of which are in Africa, are required to identify their most exigent adaptation needs through the preparation of National Adaptation Plan of Action

(NAPA).

363

Several states in Africa have prepared this action plan but, none indicates the special situation of indigenous peoples‟ lands in the context of climate change.

364

The implication is that critical issues relating to indigenous peoples are not considered as important by states, a further reflection of the historical neglect of indigenous peoples.

With respect to mitigation, of particular application in Africa are forest-related initiatives under the United Nations Reduced Emissions from Deforestation and forest Degradation (UN-REDD) programme which supports nationally-led REDD+.

365

Many of the forests envisaged for these projects are in the territories historically belonging to indigenous peoples.

366

In Africa, states that are fully under the UN-REDD National programme for REDD+ include DRC, Nigeria, the

United Republic of Tanzania, Zambia, and targeted efforts are also supported in Benin,

Cameroon, the Central African Republic, Côte d'Ivoire, Ethiopia, Ghana, Kenya, Madagascar,

Morocco, South Sudan, the Sudan, Tunisia and Uganda.

367

In the states listed above, particularly those fully involved and supported under the UN-REDD

National programme, the REDD+ initiative has potential benefits for governments as they will receive payment for controlling deforestation.

368

Indigenous peoples can be empowered and their

362

On the definition of adaptation and mitigation as well as relationship, see RJT Klein et al „Inter-relationships between adaptation and mitigation‟ in ML Parry et al (eds) Impacts, adaptation and vulnerability: Contribution of Working Group II to

IPCC (AR4) 745-747; Intergovernmental Panel on Climate Change (IPCC) Impacts, adaptations and mitigation of climate

change: Scientific-Technical Analyses (1995) Contribution of Working Group II to IPCC SAR (1995) 5

363

Conference of the Parties (COP) at its 7th session in 2001 through decision 5/CP.7, see Toulmin (n 302 above) 28; see art 4(9) of the UNFCCC which recognises the special needs of LDCs

364

This is examined in detail in chapter 5 of the thesis which is devoted to the national climate regulatory framework in relation to indigenous peoples‟ lands

365

In climate mitigation discourse, REDD+ stands not only for Reducing Emissions from Deforestation and Forest Degradation, but also incentivising conservation, sustainable management of forests and enhancement of forests as stock of carbons in developing countries. For a good discussion on the meaning and evolution of REDD+, see J Willem den Besten, B Arts & P

Verkooijen „The evolution of REDD+: An analysis of discursive-institutional dynamics‟ (2014) 35 Environmental Science and

Policy 40; Other initiatives which support REDD+ are World Bank hosted Forest Carbon Partnership Facility (FCPF), and voluntary initiative driven by non-governmental organisation notably, Climate, Community and Biodiversity Alliance (CCBA), see UN-REDD Programme and REDD+, Frequently Asked Questions and Answers (UN-REDD Programme, November 2010);

UN-REDD Programme, „The UN-REDD Programme Strategy 2011-2015‟ 25

366

RS Abate & EA Kronk „Commonality among unique indigenous communities: An introduction to climate change and its impacts on indigenous peoples‟ in RS Abate & EA Kronk (eds) Climate change and indigenous peoples: The search for legal

remedies (2013) 10; LA Crippa „REDD+: Its potential to melt glacial resistance to recognise human rights and indigenous peoples‟ rights at the World Bank‟ in Abate and Kronk (above) 123

367

UN-REDD „Partner countries‟<www.un-redd.org/Partner_Countries/tabid/102663/Default.aspx> (accessed14 June 2013)

368

Toulmin (n 302 above) 130

143

socio-economic status can improve if REDD+ respects their tenure system and land-use knowledge in its activities, including monitoring and measurement, reporting, verification, as well as sustainable management of the environment.

369

However, while the REDD+ initiative remains in its early stage of implementation, the extent to which it will benefit indigenous peoples depends on their security of land tenure under the national legal framework, which remains largely absent in Africa.

370

Regarding the REDD+, there are emerging concerns that projects will erode the rights of indigenous peoples who are forest- dependent,

371

due to the insecurity of land tenure of indigenous peoples which potentially constitutes a barrier to claim to any reward from the implementation of REDD+ as a climate mitigation measure.

The foregoing measures often come at a cost not only to indigenous peoples‟ notion of land use and tenure but their associated cultural way of life. It is not surprising that indigenous peoples have had to change from a pastoral to agricultural way of life due to severe climatic conditions.

According to Warner‟s finding, there are pastoralists who „borrow money from others to buy seed‟ for farming due to the declining pasture and loss of livestock which are important aspects of their cultural way of life.

372

Similarly, in describing the situation of indigenous peoples in the

Kalahari region, Salick and Byg noted that „[i]ndigenous groups which have been forced to become sedentary, huddle around government drilled boreholes for water, and many are dependent on government hand-outs for survival‟.

373

These are disappointing developments considering the cultural significance of indigenous peoples‟ relationship with land use and tenure. Effectively, the cause and effect of climate change detach indigenous peoples from their traditional use of land and its cultural significance and ultimately bring about an outcome similar to the historic subordination of indigenous peoples‟ land tenure and use.

369

This is noted under the Cancun Agreements which require parties to respect the knowledge and rights of indigenous peoples and members of local communities, see Appendix I to the Cancun Agreements: Outcome of the work of the Ad Hoc Working

Group on Long-term Cooperative Action under the Convention (Decision 1/CP/16 FCCC/CP/2010/7/Add.1) paras 2(c) and (d); also see ND Burgess et al „Getting ready for REDD+ in Tanzania: A case study of progress and challenges‟(2010) 44 Fauna &

Flora International 339

370

„Report on the impacts of climate change mitigation measures on indigenous peoples on their territories and lands‟

(E/C19/2008/10) paras 42-56

371

T Griffiths & F Martone Seeing „REDD‟? Forests, climate change mitigation and the rights of indigenous peoples and local

communities (Forest Peoples Programme, May 2009) 26; Toulmin (n 302 above) 130

372

WK Warner Climate change induced displacement: Adaptation policy in the context of the UNFCCC climate negotiations

( 2011) 27

373

S Jan & A Byg (eds) Indigenous peoples and climate change (2007) 9

144

3.6 Conclusion

The foregoing analysis explores the notion of indigenous peoples‟ land rights, highlighting that indigenous peoples are known by a variety of land use and tenure which has suffered historic subordination through international law principles. Indigenous peoples view and use land as a means of achieving cultural survival and environmental integrity. This perception is supported by a unique tenure system distinctive in terms of its features, namely, a collective sense of ownership, the informal nature of claim and parallel use, all of which is defensible under key instruments of international human rights and environmental law.

Notwithstanding the foregoing, there has been a historical subordination of the notion of indigenous peoples‟ land tenure and use which dates back to the colonial era when the development and implementation of two doctrines of international law, that is, the doctrines of

„discovery‟ and terra nullius ensured the legitimisation of non-recognition of the unique features of indigenous peoples‟ land rights. These doctrines, used by colonial states in different parts of the world including Africa, are remarkable for their conflict with indigenous peoples‟ perception of land use and tenure. In terms of these doctrines, the use of land and tenure of indigenous peoples such as the pastoralists as well as hunter-gatherers, were considered unrefined, and unprofitable for commercial purposes.To support this worldview, a new or European legal system, as well as customary law, was created which became the applicable law in several colonies effectively subordinating the land tenure and use of indigenous peoples.

The historical subordination continues to be reflected in the reality of the adverse impacts of climate change. In the cause of climate change, the expropriation and unsustainable utilisation of indigenous peoples‟ lands for developmental purposes undermine and subordinate indigenous peoples‟ notion of land tenure and use. Also, in occasioning drought, the destruction of plants and animals, displacement, the loss of land and culture, emerging narratives of climatic impact on the physical environment of indigenous peoples make their land vacant and available for state occupation for purposes which undermine their notion of land tenure and use. The next chapter explores the extent to which international climate change regulatory framework addresses this trend.

145

Chapter 4

The international climate change regulatory framework in relation to indigenous peoples’ lands

4. 1 Introduction

The previous chapter unpacks the notion of indigenous peoples‟ land rights in terms of land use and tenure as well as discusses its link with adverse effects of climate change. Given the global nature of climate change, the response has been top-down: decisions are taken by institutions established at the international level, that is under the aegis of United Nations Framework

Convention on Climate Change (UNFCCC) and the Kyoto Protocol to address the adverse impacts of climate change at the national level. This chapter presents an overview of the international climate regulatory framework in relation to indigenous peoples‟ lands. In the main, the chapter contends that while there is an emerging focus on the protection of indigenous peoples‟ land tenure and use in the international climate regulatory framework, this is potentially limited by the notions of „sovereignty‟, „country driven‟ and „national legislation‟ which are embraced under the framework. As is the case with the historical trend in international law, these notions potentially legitimise the formulation at the national level of a climate change regulatory framework that subordinates or hinders the protection of indigenous peoples‟ land use and tenure.

4.2 The international climate change regulatory framework

The climate change regulatory framework at the international level represents a top-down approach by the institutions under the aegis of United Nations Framework Convention on

Climate Change (UNFCCC) and the Kyoto Protocol in addressing the challenge posed by climate change. In itself this is not problematic considering that climate change is a global challenge.

1

Action is necessary at other levels, however, issues such as the differentiation of reponsibilities between developed and developing states and allocation and transfer of resources

1

JL Dunnof „Levels of environmental governance‟in D Bodansky et al (eds) The Oxford handbook of international

environmental law (2007) 87

146

makes international negotiation and response inevitable and distinct from other levels of climate governance. In the words of the UNFCCC:

The global nature of climate change calls for the widest possible co-operation by all countries and their participation in an effective and appropriate international reponse, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions.

2

At the international level, climate change has elicited rule-making and decisions in relation to adaptation and mitigation which are considered as global responses to climate change.

3

It is also characterised by a range of institutions involved and overlapping in the rule and decision- making processes. This section examines these institutions and set of key instruments existing under the international climate change regulatory framework level in relation to indigenous peoples‟ lands.

4.2.1 Regulatory institutions and indigenous peoples

Key institutions under the aegis of the international climate change regulatory framework are the

Conference of Parties (COP), Meeting of the Parties (MOP), the Intergovernmental Panel of

Climate Change (IPCC), Subsidiary Body for Scientific and Technological Advice (SBSTA),

Subsidiary Body for Implementation (SBI), Ad-hoc Working Group on Long Term Cooperative

Action Under the Convention (AWG-LA), Ad-hoc Working Group on Further Commitment for

Annex 1 Parties Under the Kyoto Protocol (AWG-KP).

4

Arguably, there is an opportunity in these institutions for engaging with the concerns around the land use and tenure of indigenous peoples in the light of climate change.

4.2.1.1 Conference of Parties / Meeting of the Parties

The Conference of the Parties (COP) is made up of state parties and acts as the main forum elaborating the climate change regime by the negotiation of amendments and protocols.

5

Established pursuant to article 7 of the UNFCCC, the COP is the highest decision-making body

2

UNFCCC, preamble

3

E Kriegler et al „Is atmospheric carbon dioxide removal a game changer for climate change mitigation?‟ (2013) 118 Climatic

Change 45; R Maguire „Foundations of international climate law: Objectives, principles and methods in climate change and the law‟ (2013) 21 Ius Gentium: Comparative Perspectives on Law & Justice 83, 84

4

F Gale „A cooling climate for negotiations: Intergovernmentalism and its limits‟ in T Cadman (ed) Climate change and global

policy regime: Towards institutional legitimacy (2013) 32; D Bodansky „International law and the design of a climate change regime‟ in U Luterbacher & DF Sprinz (eds) International relations and global climate change (2001) 201

5

Bodansky (n 4 above) 213

147

under the UNFCCC,

6

and functions as the MOP or the CMP (Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol) by virtue of article 13 of that protocol. The

COP exercises wide functions. For instance, it discussed and reached agreement on the need to negotiate a protocol to the Convention at the COP-1,

7

which led to the adoption of the Kyoto

Protocol at COP-3

8 and its subsequent amendment at COP-17 in Doha.

9

According to the

Convention, each of the parties has one vote, a rule that applies to all parties except a „regional economic integration organisation‟ such as the European Union (EU), whose number of votes equals the number of the member states that are parties to the Convention.

10

Generally, decisions are taken by consensus and recourse to voting is made only in relation to treaty amendments where consensus is difficult to attain. In that case, a decision is reached by a three-fourths majority.

11

The participation of NGOs in the discussion at this level, even if it is one of observation, is an opportunity to bring indigenous peoples‟ issues up for discussion. This is not new. In demonstrating that non-state actors play a critical role in shaping environmental governance at all levels, Edmondson notes that it is difficult to imagine that the IPCC (International Panel on

Climate Change) would have been formed „without the initiatives of experts and scientists‟.

12

In showing that agenda-setting within the meetings of the COP and arguably the MOP is shaped by

NGOs, Conca argues that „there has been a palpable loss of agenda setting power‟ by the states involved in environmental regimes.

13

In support, Roberts et al show that there is significant empirical correlation between the participation of NGOs and the willingness of governments to sign and ratify treaties.

14

6

As above

7

BL de Chazournes United Nations Framework Convention on Climate Change, United Nations Audiovisual Library of

International Law

8

As above

9

Decision 1/CMP.8 Amendment to the Kyoto Protocol pursuant to its Article 3, paragraph 9 (Doha Amendment) para 30

FCCC/KP/CMP/2012/13/Add.1

10

UNFCCC art 18; see Gale (n 4 above) 36

11

UNFCCC art 15(3); Gale (n 4 above) 36

12

E Edmondson „The Intergovernmental Panel on Climate Change: Beyond monitoring‟ in B Gleeson & N Low (eds) Governing

for the environment: Global patterns, ethics and democracy (2001) 47

13

K Conca „Old states in new bottles? The hybridization of authority in global environmental governance‟ in J Barry & R

Eckersley (eds) The state and the global ecological crisis 181-206, 202

14

J Roberts et al „Who ratifies environmental treaties and why? Institutionalism, structuralism and participation by 192 nations in

22 treaties‟ (2004) 4 Global Environmental Politics 22

148

The participation of NGOs is not unexpected. As the highest political decision-making bodies under the UNFCCC and Kyoto Protocol, the COP and MOP respectively involve heads of states and representatives who are parties to the agreements. However, non-member states have the right to attend as observers.

15

Importantly, observer status is extended to other bodies, „whether national or international, governmental or non-governmental‟, that are qualified in matters within the scope of the UNFCCC.

16

This is the legal basis for the participation of indigenous peoples organisations. The only qualification to this concession is that „at least one third of the parties present‟ should not oppose the entity seeking observer status.

17

Cabre has investigated the pattern of attendance of NGOs, parties and UN organisations from COP-1 to 15.

18

The author finds an increase in attendance of observers from less than 1,000 at COP-1 to an average of 3,000 at subsequent meetings.

19

Similarly, the number of intergovernmental organisations in attendance at

COP has increased from 23 at COP-1 to an average of 150 at COP-15.

20

In examining the potential for Business International NGOs (BINGO) to shape climate issues, Vormodal concludes that the activities of BINGO seem to have exerted significant influence on the process of negotiating a regulatory design for the Clean Development Mechanism (CDM) created under the Kyoto Protocol.

21

There is evidence that indigenous peoples-based NGOs have observer status which qualifies them to attend debates at the forum. At the global level, organisations such as Forest Peoples

Programme,

22

and the International Alliance of Indigenous and Tribal Peoples of the Tropical

Forests enjoy observer status and contribute to climate discussions through their submissions. Of importance to Africa is the Indigenous Peoples of Africa Co-ordinating Committee (IPACC) which has made substantial submissions at COP on a range of issues affecting indigenous peoples in Africa. At the COP 17 for instance, IPACC recommended to the African Group of

15

UNFCCC, art 7(6)

16

As above

17

As above

18

M Cabre „Issue linkages to climate change measured through NGO participation in UNFCCC‟(2011) 11 Global Environmental

Politics 10-22

19

As above

20

„IPACC Recommendations to UNFCCC COP 17, Durban, South Africa‟ 28 November-1 December 2011 http://www.ipacc.org.za/uploads/docs/IPACCFlyer2011.pdf (accessed 24 January 2014)

21

I Vormedal „The influence of business and industry NGOs in the negotiation of the Kyoto mechanisms: The case of carbon capture and storage in the CDM‟ (2008) 8 Global Environmental Politics 36

22

http://maindb.unfccc.int/public/ngo.pl?search=F (accessed 24 January 2014)

149

Negotiators the need to integrate land tenure systems particularly of the nomadic tribe in Africa into climate discussions.

23

4.2.1.2 International Panel on Climate Change

The Intergovernmental Panel on Climate Change (IPCC) was jointly established by the United

Nations Environment Programme (UNEP) and the World Meteorological Organisation (WMO and subsequently endorsed by the United Nations General Assembly (UNGA) in 1988.

24

The primary mandate of the IPCC is to offer „a clear scientific view on the current state of knowledge with regard to climate change and its potential environmental and socio-economic impacts.‟

25

Its membership is open to all member countries of the United Nations (UN) and WMO.

26

Though minimal, through its reports over the years, the IPCC has paid some attention to the issues of indigenous peoples. The IPCC Working Group II 1st Assessment Report (FAR) mentions indigenous peoples once in connection with the value to be placed on forest produce.

27

The IPCC Working Group III FAR on response strategies to climate change mentions indigenous peoples in the context of those in the Boreal region.

28

The IPCC Working Group II

2nd Assessment Report (SAR) refers to the impact of climate change on the ecosystem of indigenous peoples.

29

In the Working Group III SAR on the economic and social dimension of climate change does not refer to indigenous peoples at all,

30

but the IPCC Working Group II 3rd

Assessment Report (TAR) on vulnerability, though not discussing Africa, makes copious reference to indigenous peoples in the Arctic and Americas.

31

23

n 20 above

24

IPCC ‟Organisation‟ http://www.ipcc.ch/organisation/organisation.shtml (accessed 12 May 2014)

25

As above

26

Presently, 195 countries are members of the IPCC, see IPCC‟Organisation‟ http://www.ipcc.ch/organisation/organisation.shtml(accessed 12 May 2014)

27

RS de Groot et al „Natural terrestial ecosystems‟ in WJ McG. Tegart, GW Sheldon & DC Griffiths (eds) Climate change: The

IPCC impact assessment (1990) Report prepared for IPCC by Working Group II FAR, Camberra, Australia 3-23; 1992

Supplementary Report to IPCC Impact Assessment Report I

28

D Kupfer & R Karimanzira „Agriculture, forestry and other human activities‟ in Working Group III The IPCC response

strategies (1990) IPCC FAR, World Meteorological Organisations/ United Nations Environment Programme 90, 113

29

RT Watson, MC Zinyowera & RH Moss Impacts, adaptations and mitigation of climate change: Scientific-Technical Analyses

(1996) Contribution of Working Group II to IPCC SAR 7, 30, 99, 257

30

JP Bruce, H Lee & EF Haites (eds) Economic and social dimensions of climate change (1995) Contribution of Working Group

III to IPCC SAR

31

A Allali et al „Africa‟ in JJ McCarthy et al (eds) Impacts , adaptation and vulnerability Contribution of Working Group II to

IPCC TAR (2001) chapter 10

150

Indigenous peoples‟ knowledge,

32

health,

33

and related risks,

34

are described in the IPCC

Working Group II Fourth Assessment Report (AR4) on impact and vulnerability, although it was largely in the context of the Americas and Arctic. A brief reference to property rights,

35

and pastoralist coping strategy,

36

is discernible at least in relation to indigenous peoples‟ land rights largely within the Americas and Arctic. Reference is made to indigenous peoples‟ land rights, in the IPCC Working Group III AR4, as a structural challenge which must be addressed in forest management.

37

In its report, the IPCC Working Group II AR5 devotes a section to indigenous peoples, acknowledging that vulnerability to climate change impact is high among these peoples and that considerable challenges will be witnessed in terms of their culture, livelihoods and food security as a result of the adverse impacts of climate change.

38

4.2.2 Subsidiary Body for Scientific and Technological Advice

The Subsidiary Body for Scientific and Technological Advice (SBSTA) is established pursuant to article 9 of the UNFCCC. It is largely composed of government experts who provide assessments of scientific knowledge and evaluations of scientific/technical aspects of national reports and the effects of implementation measures.

39

In the main, the SBSTA serves a „multidisciplinary‟ purpose in that it provides expeditious information and advises on scientific and technological matters relating to the UNFCCC.

40

The SBSTA has contributed significantly to the discussion of a range of issues, such as the impact of climate change as well as the vulnerability of different regions and potential response measures.

41

In its deliberations, the SBSTA operates as an important platform for showcasing the pertinent questions relating to land tenure and use by indigenous peoples. For instance, in response to its invitation for submissions by parties to the SBSTA made at the 11th session of the COP in 2006

32

A Fischlin et al „Ecosystems, their properties, goods, and services‟ in ML Parry et al (eds) Impacts, adaptation and

vulnerability (2007) Contribution of Working Group II to IPCC AR4, 211

33

U Confalonieri et al „Human health‟ in ML Parry et al (eds) Impacts, adaptation and vulnerability (2007) Contribution of

Working Group II to IPCC AR4, 391, 395

34

SH Schneider et al „Assessing key vulnerabilities and the risk from climate change‟ in ML Parry et al (eds) Impacts,

adaptation and vulnerability (2007) Contribution of Working Group II to IPCC AR4, 779

35

Schneider et al (n 34 above) 815

36

Fischlin et al (n 32 above) 293

37

As above

38

J Barnett et al „Human security‟ IPCC WGII AR5 (28 October 2013) http://ipcc-wg2.gov/AR5/images/uploads/WGIIAR5-

Chap12_FGDall.pdf (accessed 14 May 2014) para 12.3.2

39

Bodansky (n 4 above) 214

40

Gale (n 4 above) 36

41

As above

151

regarding the policy and incentive approaches to Reducing Emission from Deforestation and

Forest Degradation (REDD) activities, Bolivia emphasised the need for the protection of indigenous peoples.

42

In particular, it stressed that REDD should „dignify the living conditions‟

43 and promote the participation of relevant stakeholders, including indigenous peoples in the forest.

44

Similarly, in its presentation on behalf of the African countries of the Congo Basin, submitting on the relevance of REDD as a response to diverse causes of greenhouse emission from deforestation, Gabon argued that sustainable management of the forests cannot be achieved without the participation of indigenous peoples.

45

At its 27th session in 2007, when the SBSTA received further views on approaches to stimulate action on REDD, the necessity for creating a carbon market to incentivise the protection of the environment was discussed by parties.

46

Tuvalu submitted that creating a carbon market for

REDD may infringe on the rights of access of indigenous peoples to forests even though this may be potential source of generating income for indigenous peoples and local communities and in incentivising them to protect their forests.

47

Markets and non-market approaches, as Tuvalu further submitted, must consider the rights of indigenous peoples. It also advised that the development of a national model legislature may be useful in ensuring that the transfer of emissions and the right of ownership of carbon on land does not infringe upon the rights of indigenous peoples.

48

On the status of indigenous peoples and local communities in the formulation of an appropriate approach to forest emission reduction, the contribution of parties was specifically invited by the

SBSTA. These contributions were considered at the 13th session of the SBSTA.

49

No African state responded to the call for submissions, but the contribution of the Czech Republic on behalf of the European Community and its members is quite instructive. In its submission, the Czech

42

United Nations Framework Convention on Climate Change Subsidiary Body for Scientific and Technological Advice „Paper

No. 3: Bolivia Agenda Item 6: Reducing Emissions from Deforestation in Developing Countries: Approaches to Stimulate

Action‟, 24th session Bonn, 18-26 May 2006 Item 6 of the provisional agenda„ FCCC/SBSTA/2006/MISC.5 (Bolivia paper)

43

Bolivia paper (n 42 above) 10

44

Bolivia paper (n 42 above) 11

45

UNFCCC SBSTA „Paper No. 8: Gabon on behalf of Cameroon, Central African Republic, Chad, Congo, Democratic Republic of the Congo, Equitorial Guinea and Gabon‟ FCCC/SBSTA/2006/MISC.5 75

46

UNFCCC SBSTA „Reducing emissions from deforestation in developing countries: Approaches to stimulate action, views on issues related to further steps under the Convention related to reducing emissions from deforestation in developing countries: approaches to stimulate action‟ FCCC/SBSTA/2007/MISC.14/Add.3 (SBSTA REDD approaches)

47

SBSTA REDD approaches (n 46 above) 14

48

As above

49

As above

152

Republic contends that for any REDD to be effective, there is a need to allow for a multistakeholders process involving local communities and indigenous peoples and respect for their rights as guaranteed under international instruments, such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which, arguably, include their rights to land.

50

It also advised that local communities and indigenous peoples should be involved in the monitoring activities of the status of forest carbon stocks.

51

Similarly, Ecuador submitted that the development and implementation of methodologies for REDD should safeguard the rights of indigenous peoples, incorporate a prior consultation clause and assure benefit-sharing which accommodates incentives for indigenous peoples and local communities.

52

The shortcoming with regard to the implementation of these submissions is that the activities of the SBSTA in relation to indigenous peoples, so far, have not been reflected in the decisions of the COP in any significant manner.

4.2.3 Subsidiary Body for Implementation

Article 10 of the UNFCCC establishes the Subsidiary Body for Implementation (SBI) which is composed of government experts that review policy aspects of national reports and help the COP in evaluating summative effects of implementation measures.

53

Compared with the SBSTA, the mandate of the SBI is narrower in nature as it is restricted to matters of implementation, including the determination of timetables and ensuring that targets are being achieved.

54

In performing its role, the SBI scrutinizes the information submitted by state parties in documentation, such as the national communications and emission inventories.

55

Indigenous peoples‟ rights, arguably including their land tenure and use, have gained considerable space in the SBI role. For instance, at its eighth session held in Doha, 2012, the invitation was extended to parties and admitted observer organisations to submit to the secretariat (by 25 March 2013), their positions on possible changes to the modalities and

50

UNFCCC SBSTA „Paper No. 1: Czech Republic on behalf of the European Community and its member states‟

13th session Bonn, 1.10 June 2009 3-4 FCCC/SBSTA/2009/MISC.1 (Czech Republic presentation)

51

Czech Republic presentation (n 50 above) 4

52

Czech Republic presentation (n 50 above) 5

53

Bodansky (n 4 above) 214

54

Gale (n 4 above) 37

55

As above

153

procedures for the CDM.

56

To this end, the session requested the secretariat to organise a workshop and compile submissions for consideration by the SBI at its thirty-eighth session,

57 which can then make recommendations on possible changes to the modalities and procedures for the CDM.

58

This process is required to be carried out in preparation for a review by the COP serving as the MOP to the Kyoto Protocol at its 9th session in 2013.

59

At its 38th session and workshop held by the SBI, a range of submissions were made by parties,

60

non-governmental organisations,

61

and other related entities.

62

Suggestions in these submissions include proposals for the consolidation of all the decisions, annexes and appendices for the CDM modalities and procedures into one document and to ensure that the implementation of project activities under the CDM,

63

respect substantive and procedural human rights.

64

After reviewing the submissions of participants, the SBI prepared a report which documents some of the recommendations highlighted by participants for key sections of CDM modalities.

65

Notably, recommendations of significance to indigenous peoples include the necessity to ensure in the

56

UNFCCC „Guidance relating to the clean development mechanism‟ Decision 5/CMP.8, FCCC/KP/CMP/2012/13/Add.2 , para

10 (Decision 5/CMP.8)

57

Decision 5/CMP.8 (n 56 above) para 11

58

Decision 5/CMP.8 (n 56 above) para 14

59

Decision 5/CMP.8 (n 56 above) para 10

60

UNFCCC SBI „Views on possible changes to the modalities and procedures of the clean development mechanism‟ 38th session

Bonn, 3–14 June 2013‟(SBI 38th session) , which documented contributions of parties to the session as including Chad on behalf of Burundi, Cameroon, Central African Republic, Chad, Congo, Democratic Republic of the Congo, Equatorial Guinea, Gabon,

Rwanda, and Sao Tome and Principe (Submission received 24 March 2013); Ireland and the European Commission on behalf of the European Union and its member States (Submission received 19 March 2013) I (Ireland Submission); New Zealand

(Submission received 8 April 2013); Norway (Submission received 11 April 2013); Switzerland (Submission received 4 April

2013); Uzbekistan (Submission received 25 March 2013)

61

„Submission by: Institute for Agriculture and Trade Policy (IATP)-Institute for Policy Studies (IPS)-Third World Network

(TWN)-Tebtebba (Indigenous Peoples' International Centre for Policy Research and Education; „Submission by Project

Developer Forum Ltd.to Subsidiary Body for Implementation Possible changes to the modalities and procedures for the Clean

Development Mechanism (PDF Submission); DIA-Submission to SBI‟ in SBI 38th session (n 60 above); „Submission on views regarding the revision of the CDM Modalities and Procedures on behalf of the Human Rights & Climate Change Working Group,

Abibimman Foundation, Alianza para la Conservación y el Desarrollo, Asociación Interamericana para la Defensa del Ambiente,

Carbon Market Watch, Center for International Environmental Law, Centro de Estudios Ecológicos de la República Argentina,

Climate Concept Foundation, Colectivo Revuelta Verde, Earthjustice, Foundation for GAIA, Gujarat Forum on CDM,

International Rivers, International-Lawyers.Org, Klima ohne Grenzen gemeinnützige, La Mesa Nacional de Cambio Climático de

Guatemala, Movimiento Ciudadano frente al Cambio Climático, Public Interest Network, Participatory Research & Action

Network, Paryavaran Mitra, Planetary Association for Clean Energy, Regional Centre for Development Co-operation, A Trust for

Nature, and Uttarakhand Save the Rivers Campaign‟ (Submission on behalf of Human Rights & Climate Change Working

Group) in SBI 38th session (n 60 above)

62

See for instance „Recommendations of the Executive Board of the clean development mechanism on possible changes to the modalities and procedures of the clean development mechanism‟ FCCC/SBI/2013/INF.1, 22 April 2013 (Recommendations by

Executive Boards)

63

Ireland Submission (n 60 above) paras 11-12

64

„Submission on behalf of Human Rights and Climate Change Working Groups‟ (n 61 above) 6

65

UNFCCC SBI „Report on the workshop on the review of the modalities and procedures of the clean development mechanism‟

FCCC/SBI/2013/INF.6 (SBI Report)

154

modalities procedures to make process more transparent,

66

compensation for deficiencies in validation, verification and certification reports,

67

and respect for human rights.

68

4.2.4 Ad-hoc Working Group on Long Term Cooperative Action Under the Convention

The Ad-hoc Working Group on Long Term Cooperative Action Under the Convention (AWG-

LCA) was established as a subsidiary body under the UNFCCC at COP13 as part of the Bali

Action Plan

69

to conduct a wide-ranging process to enable the full, effective and sustained implementation of the instrument through long-term cooperative action, up to and beyond

2012.

70

One of the main purposes of the AWG-LCA is to negotiate the issue of non-Annex 1 contributions to reducing greenhouse gas emissions over time.

71

Noteworthy achievements of the

AWG-LCA include the Cancun Agreements,

72

and the resultant implementing decisions, including the Cancun Adaptation Framework.

73

In relation to the consideration of indigenous peoples‟ issues, in February 2008 a contribution over the need to promote additional information, views and a proposal in relation to paragraph 1 of Bali Action Plan was jointly made by Kenya, Tanzania and Uganda at the fourth session of the

AWGLCA.

74

In that submission, it was highlighted that the rights and roles of local communities and indigenous peoples as well as their social, environmental and economic development should not be undermined by REDD.

75

On a similar matter, at a later session in the same year, intergovernmental organisations enjoying accredited status of the UNFCCC made submissions which highlight the importance of

66

SBI Report (n 65 above) paras 20-22

67

SBI Report (n 65 above) para 23

68

As above

69

UNFCCC CP „Bali Action Plan‟. Decision 1/CP.13, FCCC/CP/2007/6/Add.1

70

„Ad hoc Working Group on Long-term Cooperative Action under the Convention‟ (AWG-LCA) http://unfccc.int/bodies/body/6431.php (accessed 13 April 2014)

71

Gale (n 4 above) 38

72

UNFCCC CP „The Cancun Agreements: Outcome of the work of the Ad-hoc Working Group on Long-term Cooperative

Action under the Convention‟ Decision 1/CP.16, FCCC/CP/2010/7/Add.1 (Decision 1/CP.16) (Cancun Agreements)

73

http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf#page=4 (accessed 17 November 2013)

74

UNFCCC „Bali Action Plan‟ Decision 1/CP.13, FCCC/CP/2007/6/Add.1, para 1 of which launches „a comprehensive process to enable the full, effective and sustained implementation‟ of the UNFCCC „through long-term cooperative action, now, up to and beyond 2012‟; see also UNFCCC AWGLCA „Paper No. 1: Belize, Central African, Costa Rica, Dominician Republic,

Democratic Republic of the Congo, Ecuador, Equatorial Guinea, Honduras, Ghana, Guyana, Kenya, Madagascar, Nepal,

Nicaragua, Panama, Papua New Guinea, Singapore, Solomon Islands , Thailand, Uganda, United Republic of Tanzania, Vanuatu and Vietnam‟ Ad-hoc Working Group on Long Term Cooperative Action 4th session February 2008,

FCCC/AWGLCA/2009/MISC.1/Add.4 11 (Belize paper)

75

Belize paper (n 74 above) 11

155

safeguarding the rights of indigenous peoples particularly in relation to their land.

76

The

International Labour Organisation (ILO) advised that the success of REDD will depend on availing the forest dwellers and communities of access to sustainable forest and land-use within the mechanism and providing them with sufficient employment and income opportunities. Any policy for REDD, in its view, should channel incentives to and respect the rights of indigenous and tribal peoples in the conservation of forests as carbon sinks, in line with the provisions of

ILO Convention 169.

77

It also notes that local communities and indigenous peoples should participate and be included in the measurement, reporting and verification of the impact of

REDD activities „with respect to income, employment, migration and cultural identity‟.

78

Other intergovernmental organisations, including IPACC, in their joint submission reiterate that climate change directly threatens the services for which the ecosystem is known, such as the provision of food, clean water, coastal protection and the people who depend on these activities.

Hence, as the natural areas are of cultural and religious significance to these people, protecting and restoring these areas are critical for an effective implementation of REDD.

79

However, just as is the case with the SBSTA and SBI, these activities have not translated into concrete statements in the political decisions of the COP, that is, the highest organ under the UNFCCC.

4.2.5 Ad-hoc Working Group on Further Commitment for Annex 1 Parties Under the

Kyoto Protocol

The Ad-hoc Working Group on Further Commitment for Annex 1 Parties Under the Kyoto

Protocol (AWG-KP) was established in 2005 to assist the CMP with its work. The AWG-KP is mandated to report to each CMP on the status of its work. It aimed to complete its work and have its results adopted by the Conference of the Parties at the earliest possible time to ensure that there was no gap between the first and second commitment period of the Kyoto Protocol. In

2012, the CMP, at its 8th session, adopted the Doha Amendment which effectively decided that

76

UNFCCC AWGLCA „Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan Submissions from intergovernmental organisations‟ 4th session, Poznan, 1-10 December 2008, FCCC/AWGLCA/2008/MISC.6/Add.2

77

UNFCCC AWGLCA „Paper No. 2: International Labour Organisation Submission to be considered in the update of the

Assembly Document (Bali Action Plan) to the AWG-LCA‟ Poznan, 6 December 2008, FCCC/AWGLCA/2008/MISC.6/Add.2,

32-33 (International Labour Organisation Submission)

78

International Labour Organisation Submission (n 77 above) 33

79

UNFCCC AWGLCA „Paper No. 4: International Union for the Conservation of Nature on behalf of the International Union for the Conservation of Nature, The Nature Conservancy, WWF, Conservation International, Birdlife International, Indigenous

People of Africa Co-ordinating Committee, Practical Action, Wild Foundation, Wildlife Conservation Society, Fauna and Flora

International and Wetlands International Ecosystem-based adaptation: An approach for building resilience and reducing risk for local communities and ecosystems‟ FCCC/AWGLCA/2008/MISC.6/Add.2, 65

156

the AWG-KP had fulfilled the mandate set out in decision 1/CMP.1,

80

and that its work was finished.

81

Particularly during the winding up of its activities at the COP 17, non-governmental organisations engaged the AWG-KP on a range of issues including the land use and tenure of indigenous peoples. In its submission, the International Indigenous Peoples Forum on Climate

Change (IIPFCC) cautioned that parties must ensure that the second commitment under Kyoto protocol recognises the rights of indigenous peoples.

82

In its subsequent presentation to the

AWG-KP, noting that indigenous peoples, especially in Africa, are already suffering from the impact of climate change, the IIPFCC urged that it should embody measures that accommodate the recognition of indigenous peoples‟ rights to lands, territories and resources, full and effective participation, as well as the right to free, prior and informed consent in line with applicable universal human rights instruments, including the UNDRIP.

83

Having examined the rule making institutions and the extent of their inclusion of indigenous peoples issues relating to land, the next discussion examines the extent to which the instruments under the international climate regulatory framework in response to climate change consider indigenous peoples‟ land tenure and use.

4.3 Regulatory frameworks on the responses to climate change

In its preamble, UNFCCC recognises the vulnerability of certain populations to the negative impact of climate change. Hence, the UNFCCC requires all parties to formulate regional and national programmes to mitigate and adapt to the effects of climate change:

84

international climate change response measures are identified as adaptation and mitigation. From the outset, however, it is noteworthy that mitigation and adaptation are not mutually exclusive in responding

80

Doha Ammendment (n 9 above)

81

Doha Ammendment (n 9 above) para 30

82

Forest Peoples „International Indigenous Peoples‟ Forum on Climate Change (IIPFCC) intervention for the AWG-KP‟ Bonn,

Wednesday, 24 May 2012

http://www.forestpeoples.org/sites/fpp/files/publication/2012/05/ad-hoc-working-group-kyoto-protocol-awg-kp-intervention.pdf

(accessed 17 December 2013)

83

Forest Peoples „International Indigenous Peoples‟ Forum on Climate Change AWG-KP Opening Intervention‟ Tuesday, 29

November 2011, Durban/COP17 http://www.forestpeoples.org/topics/un-framework-convention-climate-changeunfccc/publication/2011/international-indigenous-peoples (accessed 17 December 2013)

84

UNFCCC, art 4(1) (b)

157

to the global challenge of climate change.

85

For instance, the sustainable use of the forest can serve both adaptation and mitigation ends.

86

It can serve the adaptive purpose of reducing the movement of population to cities and preserve the water and soil which are vital for rural life. It can also deliver mitigation benefits by reducing deforestation.

87

Hence, it has been argued that for a climate change response to be deemed comprehensive it must include adaptation and mitigation.

88

In the implementation of adaptation and mitigation measures, at least as far as the UNFCCC and the Kyoto Protocol are concerned, developed states do not have the same obligations as developing states. In this regard the obligation of the developing states is no more than what is required of all parties to the two instruments, that is, the obligation to cooperate in the implementation of measures.

89

However, the developed countries, included as Annex I parties of the UNFCCC, have the obligation to „implement policies and measures‟ which minimise the adverse effects of climate change,

90

and finance funds for the implementation of adaptation and mitigation measures.

91

This differentiation is rooted in the principle of common but differentiated responsibility which acknowledges that the developed countries historically have been responsible for the present situation of the climate and therefore must take the lead in addressing its consequences.

92

85

RJT Klein „Inter-relationships between adaptation and mitigation‟ in ML Parry et al (eds) Climate Change 2007: Impacts,

adaptation and vulnerability. Contribution of Working Group II to the 4th Assessment Report of the Intergovernmental Panel on

Climate Change (2007) 745-777

86

O Masera, AD Ceron & A Ordonez „Forestry mitigation options for Mexico: finding synergies between national sustainable development priorities and global concerns‟ (2001) 6 Mitigation &Adaptation Strategies for Global Change 291

87

K Halsnæs Æ P Shukla „Sustainable development as a framework for developing country participation in international climate change policies‟ (2008) 13 Mitigation & Adaptation Strategy for Global Change 105, 115

88

S Caney „Climate change and the duties of the advantaged‟ (2009) 13 Critical Review of International Social &Political

Philosophy 203; NW Adger „Vulnerability‟ (2006) 16 Global Environmental Change 268

89

See UNFCCC, arts 3(5) & 4(1) (c ), Kyoto Protocol art 10(c)

90

Kyoto Protocol, art 3(3)

91

Kyoto protocol, art 11 (2)(a)(b)

92

UNFCCC arts 3(1), 4(1), Kyoto Protocol art 10; particularly see UNFCCC „The Berlin Mandate: Review of the adequacy of

Article 4, paragraph 2 (a) and (b), of the Convention, including proposals related to a protocol and decisions on follow-up‟

Decision 1/CP.1 FCCC/CP/1995/7/Add.1 which was convened to negotiate the Kyoto Protocol‟. Among other things, the decision provides particularly in its paragraph 1 (d) that parties shall be guided by „the fact that the largest share of historical and current global emissions of greenhouse gases has originated in developed countries, that the per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs‟; however see L Rajamani „The changing fortunes of differential treatment in the evolution of international environmental law‟ (2012) 88 International Affairs 605 who warns on the imminent danger to this principle

158

As shall be shown, indigenous peoples‟ land use and tenure feature in the emerging international climate change instruments relating to these response mechanisms, that is, adaptation and mitigation.

4.3.1 The international adaptation regulatory framework

In climate change literature, adaptation refers to measures which can be to cope with the „illeffects of climate change‟

93

or activities geared toward the prevention of the adverse impacts of climate change.

94

In a similar, but more technical sense, the IPCC defines adaptation as an alteration in the natural or human systems in response to actual or expected impacts of climate change with the aim of moderating the harm in climate change or exploiting its beneficial opportunities.

95

Adaptation connotes adjustments to reduce vulnerability or improve flexibility to the observed or expected changes in climate, involving a range of options such as processes, perceptions, practices and functions.

96

Adaptation, explains Goklany, can take advantage of positive impacts and reduce the negative impact of climate change.

97

Initially, it was thought of as a „taboo‟ to discuss adaptation in climate change negotiation as advocates for climate mitigation feared that politicians are likely to lose interest in mitigation if adaptation options become the focus of discussion.

98

However, for developing states, it has been argued that it will amount to pretence to imagine that adaptation is not urgent.

99

Consequently, the potential and options for adapting to climate change at the local and regional levels have been given considerable attention in climate change literature. According to Solomon et al, some impacts of climate change such as sea level rise, can be addressed by constructing sea walls.

100

In some regions, climate change may negatively impact crop production, hence, an appropriate adaptive strategy might entail swapping from negatively impacted products to less impacted

93

S Caney „Cosmopolitan justice, responsibility and global climate change‟ (2005) 18 Leiden Journal of International Law 747,

752

94

J Paavola & WN Adger „Fair adaptation to climate change‟ (2006) 56 Ecological Economics 594

95

RT Watson et al (eds) „Climate change 2001: Synthesis report: A contribution of Working Groups I, II, III to the Third

Assessment Report of the Intergovernmental Panel on Climate Change‟ (2001) 398

96

ML Parry et al (eds) Climate change 2007: Impacts, adaptation and vulnerability, Contribution of Working Group II to the 4th

Assessment Report of the Intergovernmental Panel on Climate Change (2007) 745-777

97

IM Goklany „A climate policy for the short and medium term: Stabilization or adaptation? (2005) 16 Energy &Environment

667, 675

98

R Pielke, G Prins & S Rayner „Climate change 2007: Lifting the taboo on adaptation‟ (2007) 445 Nature 597

99

„Getting serious about the new realities of global climate change‟ (2013) 69 Bulletin of the Atomic Scientists 52

100

S Solomon et al „Irreversible climate change due to carbon dioxide emissions‟ (2009) 106 Proceedings of the National

Academy of Sciences of the United States of America 1704, 1708

159

crops,

101

or the use of new crop varieties and livestock species well suited to drier conditions, irrigation, crop diversification, adoption of mixed crop and livestock farming systems, and alternating planting dates.

102

Although they vary across regions, countries and communities, some adaptation options have been suggested for Africa. These options include change in the means of gaining a livelihood, such as moving away from farming, modifications in norms, rules and institutions of governance, alterations in agricultural practices, the development of new opportunities for income generation and migration.

103

McCarthy et al identify six types of adaptation, namely, anticipatory, autonomous, planned, private, public and reactive. Anticipatory adaptation refers to adjustment before the impact of climate change occurs, „autonomous‟ adaptation means a spontaneous response to climatic change.

104

Private adaptation refers to choices made by individuals or households at a personal level and reactive adaptation occurs after impact of climate change is observed. Public adaptation is initiated and implemented by governments at all level.

105

Planned adaptation is a consequence of policy decisions based on an awareness that conditions have changed or are about to change and that action is required to return, to maintain, or to achieve a desired state.

106

Arguably, in so far as climate change is a policy challenge, international negotiations in relation to climate change adaptation reflect „planned adaptation‟ as an overarching policy response and option.

Accordingly, the international community has regarded the sourcing and distribution of adaptation funds to the developing countries as the defining feature of adaptation policy negotiation.

107

It is not surprising as funds are required for the implementation of projects or initiatives which will help developing nations adjust to the adverse impacts of climate change.

108

Its importance is reflected in the main instruments regulating climate change: article 4 provisions

101

DB Lobell et al „Prioritizing climate change adaptation needs for food security in 2030‟ (1 February 2008) 319 Science 607

102

K Mendelsohn „A Ricardian analysis of the impact of climate change on African cropland‟ (2008) 2 African Journal of

Agricultural & Resource Economics 1; C Nhemachena & R Hassan „Micro-level analysis of farmers‟ adaptation to climate change in Southern Africa‟ (2007) IFPRI Discussion Paper No. 00714

103

O Brown, A Hammill & R Mcleman „Climate change as the „new‟ security threat: Implications for Africa‟ (2007) 83

International Affairs 1141-1154, 1149; TT Deressa et al „Determinants of farmers‟ choice of adaptation methods to climate change in the Nile Basin of Ethiopia‟ (2009) 19 Global Environmental Change 248–255

104

McCarthy et al ( n 31 above); also see J Romero „Adaptation to climate change: Findings from the IPCC TAR‟ in C Robledo,

M Kanninen & L Pedroni (eds) Tropical forests and adaptation to climate change: In search of synergies (2005) 5-14

105

As above

106

As above

107

L Schalatek et al „Climate finance thematic briefing: Adaptation finance‟ (November 2013)

108

R Muyungi „Climate change adaptation fund: A unique and key financing mechanism for adaptation needs in developing countries http://unfccc.int/press/news_room/newsletter/guest_column/items/4477.php (accessed 15 November 2013)

160

dealing with the commitment of parties to the UNFCCC are singular. According to article 4(4), developed parties under the Convention are required to assist developing country parties, particularly, vulnerable states in meeting the costs of adaptation. Similarly, article 4(5) of the

UNFCCC elaborates on the centrality of the required funding from developed countries to the promotion and facilitation of the required financial assistance.

According to article 4(7), the extent of fulfillment of the obligations required of the developing countries under the UNFCCC, and arguably toward adaptation, is conditional upon „the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology‟.

109

The obligation of developed countries to provide financial assistance is buttressed by article 10(c) of the Kyoto Protocol which enjoins parties to take „all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies, know-how, practices and processes pertinent to climate change‟ to developing countries.

4.3.1.1 International funds for adaptation

There are different categories of funds in relation to adaptation which have emerged under the pillar instruments of climate change. These are mainly the Adaptation Fund (AF) established pursuant to article 12(8) of the Kyoto Protocol,

110

the Least Developed Countries Fund (LDCF) and the Special Climate Change Fund (SCCF) pursuant to article 4(9) of the UNFCCC.

111

A

Green Climate Fund (GCF) was established pursuant to article 11 of the UNFCCC.

112

The funds under the LDCF and SCCF are voluntary contributions from developed country parties to the

UNFCCC,

113

whereas the LDCF and SCCF, under the management of the Global Environment

Facility (GEF);

114

GCF, managed by the GCF Board;

115

and the Adaptation Fund (AF), under the

109

However this does not exempt the developing countries of the primary obligation of meeting the adaptation needs of their populations. This understanding can be gleaned from the provision of the same article which urges the parties to take into full account the fact that „economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties‟

110

UNFCCC „Adaptation Fund‟ in Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto

Protocol on its 3rd session, held in Bali, Decision 1/CMP.3 FCCC/KP/CMP/2007/9/Add.1 14 March 2008 from 3 to 15

December 2007 (Decision 1/CMP.3) preamble

111

UNFCCC „Guidance to an entity entrusted with the operation of the financial mechanism of the Convention, for the operation of the least developed countries fund‟ Decision 27/CP.7 , FCCC/CP/2001/13/Add.4 21 January 2002, preamble

112

Decision 1/CP.16 (n 72 above)

113

Muyungi (n 108 above); R O‟Sullivan Creation and evolution of adaptation funds (2011) 15

114

Decision 7/CP.7 „Funding under the Convention‟ , para 6; „The Special Climate Change Fund (SCCF)‟ http://unfccc.int/cooperation_and_support/financial_mechanism/special_climate_change_fund/items/3657.php (accessed 16 November 2013)

161

Adaptation Fund Board (AFB),

116

derive their legal basis from the UNFCCC and Kyoto Protocol respectively. The following sub-section discusses these funds in terms of their institutional and normative framework, highlighting the extent to which measures exist within the funds to safeguard indigenous peoples‟ land tenure and use.

1. Global Environment Facility

As a financial mechanism established pursuant to article 11(1) of the UNFCCC,

117

the GEF administers three trust funds, namely, the Global Environment Facility Trust Fund (GEFTF),

Least Developed Countries Trust Fund (LDCF), and Special Climate Change Trust Fund

(SCCF). The funds in the GEF Trust are available for activities within the GEF Focal Areas.

118

The SCCF is a voluntary trust fund which finances activities, programmes, and measures relating to climate change complementary to those funded by the resources allocated to the climate change focal areas of the GEF; the LDCF is a voluntary trust fund established under the

UNFCCC to address the special needs of the 48 Least Developed Countries (LDCs) that are especially vulnerable to the adverse impacts of climate change.

119

a. GEF institution and indigenous peoples

The Assembly is the governing body of the GEF in which representatives of all member countries participate. It meets every three to four years and is responsible for reviewing and evaluating the GEF's general policies, the operation of the GEF, and its membership.

120

The

Assembly is also responsible for considering and approving any proposed amendments to the

GEF Instrument, a document that established the GEF and set the rules by which it operates.

Ministers and high-level government delegations of all GEF member countries take part in the

115

UNFCCC „Green Climate Fund‟ http://unfccc.int/cooperation_and_support/financial_mechanism/green_climate_fund/items/5869.php (accessed 10 January 2014); Y Serengil & H

Erden „Report: Durban climate deal and LULUCF‟ (2012) 69 International Journal of Environmental Studies 169, 170

116

Decision 1/CMP.3 (n 110 above)

117

UNFCCC, art 11(1) provides that „A mechanism for the provision of financial resources on a grant or concessional basis, including for the transfer of technology, is hereby defined. It shall function under the guidance of and be accountable to the

Conference of the Parties, which shall decide on its policies, programme priorities and eligibility criteria related to this

Convention‟

118

The GEF „GEF Administered Trust Fund‟ http://www.thegef.org/gef/trust_funds (accessed 16 November 2013)

119

As above

120

The GEF „GEF assembly meetings and documents‟ http://www.thegef.org/gef/council_meetings/assembly (accessed 13

November 2013

162

meetings.

121

The Assembly engages in a combination of activities including plenary meetings and high-level panels, exhibits, side events and GEF project site visits.

122

At the forum, prominent environmentalists, parliamentarians, business leaders, scientists, and NGO leaders discuss global environmental challenges within the context of sustainable development and other international development goals.

123

The GEF Council is the main governing body of the GEF. It functions as an independent board of directors, with primary responsibility for developing, adopting, and evaluating GEF programmes.

124

The Council membership is composed of representatives from 32 constituencies, including developing countries. It meets twice each year for three days and also conducts business by mail. The Council reaches its decision by consensus.

125

The GEF is serviced by a Secretariat which reports directly to the GEF Council and Assembly, and ensures that decisions taken on GEF activities are translated into effective actions. In addition, the Secretariat coordinates the formulation and implementation of projects in accordance with work programmes.

126

An important aspect of the GEF operation is the Scientific and Technical Advisory Panel (STAP) which is supported by the Secretariat. Consisting of a panel of six members who are international experts in their field and assisted by a network of experts in GEF‟s key areas of work, by virtue of the terms of reference adopted by the GEF

Council in June 2007 the STAP provides strategic scientific and technical advice to the GEF.

127

The STAP reports to each regular meeting of the GEF Council and, where requested, to the GEF

Assembly on the status of its activities.

128

A unique component featuring in the operation of the GEF structure that is relevant to indigenous peoples is its policy allowing for the participation of NGOs and representatives of civil society.

129

Founded in 1995, the GEF NGO network has been the main mechanism for involving CSOs. For instance, the GEF NGO network participates at Council meetings. It is

121

As above

122

As above

123

As above

124

As above

125

As above

126

The GEF „GEF Secretariat‟ http://www.thegef.org/gef/Secretariat (accessed 13 November 2013)

127

As above

128

The GEF „The Scientific and Technical Advisory Panel (STAP)‟ http://www.thegef.org/gef/STAP (accessed 13 November

2013)

129

As above

163

valuable because regional focal points in the GEF NGO network include Indigenous Peoples

Focal Points (IPFPs) which are selected through consultation among members of key indigenous peoples‟ networks in regions, including Africa.

130

In addition to promoting participation, the platform enables groups, such as the indigenous peoples who are often sidelined in decisionmaking, to engage on topical issues in relation to adaptation process involving them. Hence, it affords indigenous peoples the opportunity to contribute in shaping decisions on a number of issues which may affect their land through the process allowing for input by the way of the presentation of papers on a number of issues before the Council. For instance, at the 41st and

42nd Council meetings, the network provided specific input into the GEF Policies on

Environmental and Social Safeguards and Gender Mainstreaming as well as the GEF Principles and Guidelines on the Engagement with Indigenous Peoples.

131

The participation of NGOs has been strengthened since the GEF Council approved a strategy for enhancing engagement by extending the involvement of CSOs at local and regional levels.

132

b. GEF instruments and indigenous peoples

In meeting its responsibilities in relation to the funding of adaptive activities under the LDCF and SCCF, the GEF activities are required to conform with the „policies, programme priorities and eligibility criteria‟ set out by the COP.

133

Accordingly, the COP has laid out guidance for the operation of the GEF adaptation activities when it emphasises that adaptation will require „short, medium and long term strategies‟.

134

In the short term, activities that are envisaged include investigation into the impact of climate change, identifying the particular „vulnerable countries or regions‟ as well as adaptation policy options. In the medium term, capacity building that is necessary to prepare for adaptation is envisaged; measures to enable adequate adaptation are anticipated as long term measures.

135

Presently, for the implementation of adaptation activities, the COP is at the short term level and has entrusted to the GEF, the task of meeting the full costs

130

„GEF NGO network report to GEF Council‟ (1 July 2011- 30 June 2012) para 5, GEF Council meeting November 13-15,

2012 , GEF/C.43/Inf.10 (GEF Council meeting)

131

GEF Council meeting (n 130 above) para 13

132

The GEF „Civil Society‟ http://www.thegef.org/gef/csos (accessed 15 October 2013)

133

On GEF, see generally, Appendix L. Overview of the Global Environment Facility and the World Bank‟s Roles; UNFCCC, art 11(3)(a)

134

UNFCCC „Initial guidance on policies, programme priorities and eligibility criteria to the operating entity or entities of the financial mechanism‟ Decision 11/CP.1, 10th plenary meeting, 7 April 1995, FCCC/CP/1995/7/Add.1, para 1(d)(i), (Initial

Guidance)

135

Initial Guidance (n 134 above) para 1(d)(ii); also see UNFCCC, arts 4(1)(e), 4(1)(b) and 4(4)

164

of short term activities.

136

These activities include the formulation of national communications, studies of the possible impacts of climate change, identification of adaptation options and capacity building.

137

These arrangements are endorsed in the GEF Operational Strategy for the

UNFCCC.

138

Realising the centrality of the traditional lands and territories of indigenous peoples to their activities, to GEF has put in place certain policies to enhance the participation of indigenous peoples in GEF financed projects. These include the GEF Policy on Agency Minimum Standards on Environmental and Social Safeguards (GEF SESS),

139

the GEF Policy on Public Involvement in GEF Projects (GEF Minimum Standard Policy).

140

As a further measure to reiterate the provisions in these documents, the GEF has formulated a document on Principles and Guidelines for Engagement with Indigenous Peoples (GEF Principles and Guidelines).

141

The GEF SESS sets out as its component a minimum standard relating to indigenous peoples for compliance by partner agencies seeking to implement projects under GEF auspices. Among other things, it recommends the use of Free Prior Informed Consent (FPIC), as well as criteria such as resettlement, physical cultural resources as well as accountability and grievance.

142

It also requires, specifically, the involvement of indigenous peoples and local communities in the implementation, monitoring and evaluation of GEF-financed projects, underscoring the necessity for information dissemination, consultation and stakeholder participation through all the phases of projects.

143

GEF Principles and Guidelines emerged from a consultative process commenced with the establishment of an Indigenous Peoples‟ Task Force (IPTF) in July 2011 to advise on options to enhance the participation of indigenous peoples in GEF Activities.

144

After regional consultations, the IPTF highlighted and recommended that the GEF should establish a rights-

136

Initial Guidance (n 134 above) para 1(d)(iii) and (iv)

137

Initial Guidance (n 134 above) para 1(d)(iv)

138

Initial Guidance (n 134 above) paras 3(8) to (11)

139

Council document, GEF/C.41.10/Rev.01

140

Council document, GEF/C.7/6

141

The GEF „GEF Principles and Guidelines for Engagement with Indigenous Peoples‟ http://www.thegef.org/gef/sites/thegef.org/files/publication/GEF%20IP%20Part%201%20Guidelines_r7.pdf (accessed 13 July

2013) (GEF Guidelines)

142

„GEF Policy on Agency Minimum Standards on Environmental and Social Safeguards‟ Council Document GEF/C.41/Rev.1,

17, 22-29

143

„Public Involvement in GEF projects and C.6/Inf.5, Draft Outline of Policy Paper on Public Involvement in GEF-Financed

Projects‟ Council Documents GEF/C.7/6

144

GEF Guidelines (n 141 above) 8

165

based policy recognising and promoting respect for the rights of indigenous peoples and contributing to the realisation of the UNDRIP, the African Charter and the ILO Convention

169.

145

In line with these recommendations, GEF Principles and Guidelines endorse the realisation of the provisions under UNDRIP which affirm the commitment to the „full and effective participation‟ of indigenous peoples, the application of FPIC, the protection of indigenous peoples‟ ownership and access to land and its sustainable management without compromising the benefits of these peoples from GEF-financed projects.

146

The GEF Principles also undertake to facilitate access of indigenous peoples to „local or country level grievance and dispute resolution systems‟ by requiring GEF partner agencies to put in place accountability grievance systems capable of responding to the complaints of indigenous peoples.

147

It has reiterated its commitments to these ideals, subsequently, in its pronouncement at the RIO+20 United Nations Conference on Sustainable Development,

148

and has followed-up with the establishment of GEF Indigenous Peoples Advisory Group to offer advice on the operationalisation of the GEF Guidelines and Principles.

149

2. Green Climate Fund

Established pursuant to article 11 of the UNFCCC, the Green Climate Fund (GCF) is equally a financial mechanism which supports projects, programmes, policies and other activities in developing country Parties.

150

At the COP 16, at which it was established, it was decided that the

GCF is an avenue through which a substantial share of new funding for adaptation should

145

„Indigenous Peoples Task Force‟ Issues Paper: Final, 30 November 2011, 2-3

146

GEF Guidelines (n 141 above)18 and 19

147

„GEF Policy on Agency Minimum Standards on Environmental and Social Safeguards‟ Council Document GEF/C.41/Rev.1;

GEF Guidelines (n 141 above) 21

148

„Statement of Commitments of the Global Environment Facility (GEF) for the United Nations Conference on Sustainable

Development (Rio+20)‟ para 8; this document indicates the commitment of the GEF to „enhance the participation of Indigenous

Peoples in GEF policies, processes, programmes, and projects through timely implementation of the recently approved

„Principles and Guidelines for Engagement with Indigenous Peoples‟

149

The GEF Indigenous Peoples Advisory Group held its 1st meeting at Washington DC, USA at the GEF Secretariat on 2-3 July

2013; Members of the group are: Ms. Lucy Mulenkei, Executive Director of the Indigenous Information Center, Ms. Mrinalini

Rai, Chiang Mai University, Mr. Marcial Arias Garcia, Policy Advisor, International Alliance of Indigenous and Tribal Peoples of the Tropical Forests, Mr. Legborsi Saro Pyagbara, President, Movement for the Survival of the Ogoni People (Representative of the GEF NGO Network), Mr. Gonzalo Oviedo, Senior Advisor, Social Policy Programme, IUCN (Expert), Mr. Terence Hay-

Edie, Programme Advisor, United Nations Development Programme (GEF Agency Principal Representative), Mr. Carlos Perez-

Brito, Social Specialist, Inter-American Development Bank (GEF Agency Alternate Representative) and Ms Yoko Watanabe,

Indigenous Peoples Focal Point and Senior Biodiversity Specialist, GEF Secretariat

150

Decision 1/CP.16 (n 72 above)

166

flow.

151

Also, the COP decided that the GCF was to be designed by the Transitional Committee

(TC).

152

While the GCF structure is still a work in process, at COP 17 held in Durban, the COP approved the instrument for the operationalization of the GCF.

153

a. GCF structure and indigenous peoples

The GCF Fund will be governed by the GCF Board and operated in a timely manner.

154

Among other responsibilities the GCF Board is requested to balance the allocation of the GCF between adaptation and mitigation activities.

155

At COP 18, these responsibilities are reaffirmed and parties were invited to make submissions „no later than 10 weeks prior to the subsequent session of the Conference of the Parties‟ on suggestions for developing guidance for the operation of

GCF.

156

The governing instrument of the GCF has set out the nature and purpose of the funding offered under the GCF. It will offer direct and indirect access to funds and involve relevant stakeholders, including vulnerable groups.

157

The fund will also assist the preparation of documentation, including NAPAs.

158

In allocating funding for adaptation purposes, the Board will aim for a regional balance, but will take into consideration the immediate needs of developing countries, including Africa, which are peculiarly vulnerable to the adverse impacts of climate change.

159

The nature and purpose of this fund have been emphasised lately at the meetings of the GCF

Board at which the decision was taken that the interim Secretariat should prepare a document by

2014 which describes the accreditation options for different types of implementation entities.

160

151

Decision 1/CP.16 (n 72 above) paras 101 & 102

152

As above

153

UNFCCC „Launching the Green Climate Fund‟ Decision 3/CP.17, FCCC/CP/2011/9/Add.1 para 2 (Decision 3/CP.17);

Serengil & Erden (n 115 above)

154

Decision 3/CP.17 (n 153 above) para 6

155

Decision 3/CP.17 (n 153 above) „Annex‟ Governing instrument for the Green Climate Fund‟ (Decision 3/CP.17 Annex) para

I(3); for a list of other functions see Decision 3/CP.17 (n 153 above)

156

UNFCCC „Report of the Green Climate Fund to the Conference of the Parties and guidance to the Green Climate Fund‟

Decision 6/CP.18, FCCC/CP/2012/8/Add.1, 9th plenary meeting, 8 December 2012 (Decision 6/CP.18)

in particular, para 7 provides for the reinstatement of these responsibilities while para 16 requests for suggestions from parties

FCCC/CP/2012/8/Add.1, 9th plenary meeting 8 December 2012, Decision 6/CP.18

157

Decision 3/CP.17 Annex (n 153 above)

158

Decision 3/CP.17 Annex (n 153 above) para 40

159

Decision 3/CP.17 Annex (n 153 above) para 52

160

„Green Climate Fund Business Model Framework: Access Modalities‟ Annex I: Draft decision of the Board (d) GCF/B.04/05

11 June 2013

167

Although there is no direct expression that indigenous peoples are or will be involved in the structure of the GCF, the possibility of involvement can be inferred. The intention to involve vulnerable groups in the structure can only mean that groups, such as indigenous peoples, noted for their marginalisation and vulnerability fall within the coverage of the GCF institution.

Participation at the GCF decision-making body will, no doubt, afford indigenous peoples the opportunity to contribute to shaping decisions which may emanate from the GCF structure.

b. GCF instruments and indigenous peoples

Concerns in relation to land use and tenure are being raised by indigenous peoples as the discussion evolves concerning the design and operation of the GCF. This is evident in the various submissions made to the TC in its engagement with civil society. In some of these submissions it has been made clear that there is a need to ensure that the GCF is directly accessible to indigenous peoples. On this point, it has been argued by NGOs dealing with indigenous peoples‟ issues, for instance, that there is the need to create a specific facility under the GCF to enable direct access to funds. Direct access to such funds it is argued will enhance and strengthen the contributions of indigenous peoples‟ knowledge on adaptation in response to the adverse impacts of climate change.

161

Options which the GCF may follow in the design of its direct access modalities as advised, include models under the International Fund for Agricultural

Development (IFAD), the Indigenous Peoples Assistance Facility (IPAF), a former World Bank

Facility for indigenous peoples,

162

and the Forest Carbon Partnership,

163

all of which are dedicated indigenous funds.

164

In a joint submission made to the TC, it is evident that participation of indigenous peoples from

„the local to the national to the Board level‟ is deemed critical to the application of the fund considering that their communities are directly affected by climate change and the

161

F Martone & J Rubis „Indigenous peoples and the Green Climate Fund‟ (August 2012) A technical briefing for Indigenous

Peoples, policymakers and support groups

162

International Fund for Agricultural Development „Indigenous grants‟ http:// ww.ifad.org/english/indigenous/grants/index.htm

(accessed 25 October 2013)

163

Forest Carbon Partnership Facility „Capacity Building Programme for Forest-Dependent People on REDD+‟ www.forestcarbonpartnership.org/fcp/sites/forestcarbonpartnership.org/files/Documents/Program_Description_English_11-15-

09_updated.pdf (accessed 25 October 2013)

164

Martone & Rubis (n 161 above) ; see UNDP and Overseas Development Institute (ODI) „Direct Access to Climate Finance:

Experiences and lessons learned‟ (2011) Discussion Paper, UNDP

168

implementation of these funds.

165

The joint submission calls upon the TC to specifically list in the „operational modalities‟ the groups constituting affected communities to include indigenous peoples‟.

166

The submission pushes for a more intrusive accountability mechanism, contending that such a mechanism should be independent with the power to review „a wider set of concerns, including violations of customary, national and international law; and it should have the power to halt funding/implementation in case of violations‟.

167

The governing instrument that emerged after consultation does not reflect these suggestions in their totality,

168

but, at least, there are traces that the engagement of the TC with civil society is not merely academic. Some of these suggestions are reflected in the draft governing instrument, for instance, the phrase „indigenous peoples‟ has worked itself into the lexicon of the GCF as it is mentioned and they are considered a vulnerable group whose voice and input are necessary in the „design, development and implementation of the strategies and activities to be financed by the Fund‟.

169

Although there is no specific reference regarding the possibility of allowing the accountability set up under the GCF to look into allegations of funding related violations, it is agreed that the mechanism should be „independent‟ and will „receive complaints related to the operation of the Fund and will evaluate and make recommendations‟.

170

Similarly, funding can be terminated on the recommendation of the Board to the COP.

171

3. Adaptation Fund

The legal basis for the existence of the Adaptation Fund (AF) is traceable to the Kyoto Protocol.

Article 12(8) of the Protocol enjoins the COP/MOP to utilise the proceeds from projects implemented under the instruments to cover such costs including the rendering of assistance to

„developing country Parties that are particularly vulnerable to the adverse effects of climate change to meet the costs of adaptation‟.

172

Pursuant to this provision, at the 7th session of the

COP the parties agreed to the establishment of the AF with the aim to finance adaptation projects

165

Friends of the Earth US, Global Alliance for Incinerator Alternatives (GAIA), Heinrich Boell Foundation North America,

Institute for Agriculture and Trade Policy, Jubilee South-Asia/Pacific Movement on Debt and Development, Sustainable Energy and Economy Network of the Institute for Policy Studies, World Development Movement (Friends of the Earth Submission)

166

Friends of the Earth Submission (n 165 above) 3

167

As above

168

Decision 3/CP.17 Annex (n 153 above)

169

Decision 3/CP.17 Annex (n 153 above) para 71

170

Decision 3/CP.17 Annex (n 153 above) para 69

171

Decision 3/CP.17 Annex (n 153 above) para 72

172

Kyoto Protocol, arts 10 and 11

169

and programmes in developing countries which are parties to the protocol.

173

The AP is designed to finance „concrete adaptation projects and programmes‟, 174

which aim at „addressing the adverse impacts of and risks posed by climate change‟.

175

It provides funding for the „full costs‟ related to the implementation of adaptive activities that address the adverse consequences of climate change.

176

a. AF structure and indigenous peoples

The operation entity for the AF is the Adaptation Fund Board (AFB),

177

which meets twice annually.

178

Subject to the discretion of the AFB, meetings are open to observers, namely the

UNFCCC Parties and its accredited observers.

179

The functions of the AFB include the development of strategic priorities, policies and guidelines, and offering recommendations about such plans to the CMP.

180

Since the notable NGOs which focus on indigenous peoples‟ issues, including land tenure and use, are accredited UNFCCC observers, it is logical to expect that indigenous peoples will play critical role in the activities of the AFB.

There appears to be an opportunity for the participating organisations to emphasise the concerns of indigenous peoples‟ marginal lifestyle in fragile parts of the world, including Africa. An issue of particular importance, to which the NGOs may devote attention, is the commitment of the

Adaptation Fund to the implementation of adaptation activities in the areas of land management and fragile ecosystems, and supporting capacity-building aimed at prevention, which may include planning, preparation and management of disasters relating to droughts and floods.

181

173

UNFCCC „Funding under the Kyoto Protocol „Decision 10/CP.7, FCCC/CP/2001/13/Add.1 8th plenary meeting

10 November 2001 para 1

174

Adaptation Fund „Operational Policies and Guidelines for Parties to Access Resources from the Adaptation Fund‟ para 9

(Adaptation Fund Guidelines)

175

Adaptation Fund Guidelines (n 174 above) para 10

176

Adaptation Fund Guidelines (n 174 above) para 14

177

Decision 1/CMP.3 (n 110 above) para 3

178

Decision 1/CMP.3 (n 110 above) paras 15

179

Decision 1/CMP.3 (n 110 above) para 16

180

Decision 1/CMP.3 (n 110 above) para 5 (a)

181

UNFCCC CP „Implementation of Article 4, paragraphs 8 and 9, of the Convention (decision 3/CP.3 and Article 2, paragraph

3, and Article 3, paragraph 14, of the Kyoto Protocol)‟ Decision 5/CP.7 FCCC/CP/2001/13/Add.1, see generally its para 8(a) to

(d) which embody the general activities for which Adaptation Fund along with the Special Climate Change Fund are to be applied

170

b. AF instruments and indigenous peoples

In addition to recognising the need to operate the AF expeditiously, further guidance is provided in the decisions made at the CMP meeting in Montreal, Canada in 2005,

182

which include that the AF shall function under and be accountable to the CMP and that its operation shall be country-driven, separate from other sources of funding and utilise „a learning-by-doing approach‟.

183

More specific guidance was decided in Nairobi, Kenya in December 2006 as including, transparency and openness of governance and accessibility to adaptation activities at the „national, regional and community level activities‟.

184

In particular, it was decided that priority will be given to projects, taking into account needs as expressed in national communications and national adaptation programmes of action.

185

The AFB is tasked with the functions of developing specific operational policies and guidelines,

186

and rules of procedures.

187

In the 4th session of the CMP held in Poznan, the developed Strategic Priorities, Policies and Guidelines of the Adaptation Fund (Strategic

Guidelines), Operational Policies and Guidelines for Parties to Access Resources from the

Adaptation Fund (Operational Guidelines) and the Rules of Procedures of the Adapatation Fund

(Rules of Procedures) were adopted.

188

The adopting decision requests the AFB to start the processing of proposal for funding,

189

and to inform parties of the Strategic Guidelines and Rules of Procedures.

190

According to the Strategic Guidelines, the submission of project proposals can be done directly by parties including the implementing entity elected by governments to

182

As above

183

UNFCCC KP/CMP „Initial guidance to an entity entrusted with the operation of the financial system of the Convention, for the operation of the Adaptation Fund‟ 9th plenary meeting, 9-10 December 2005 in Report of the Conference of the Parties

serving as the meeting of the Parties to the Kyoto Protocol on its 1st session, held at Montreal from 28 November-10 December

2005, Decision 28/CMP.1, FCCC/KP/CMP/2005/8/Add.4, paras 2 and 3

184

UNFCCC KP/CMP „Adaptation Fund‟ Report of the Conference of the Parties serving as the meeting of the Parties to the

Kyoto Protocol on its 2nd session, held at Nairobi from 6-17 November 2006 Annex I to this document, Decision 5/CMP.2,

FCCC/KP/CMP/2006/10/Add.1. paras1 ( c) and 2(a), see generally paras 1 and 2 on the guidance and modalities (Decision

5/CMP.2)

185

Decision 5/CMP.2 (n 184 above) para 2(c)

186

Decision 5/CMP.2 (n 184 above) para 5(b)

187

Decision 5/CMP.2 (n 184 above) para 5(e)

188

UNFCCC KP/CMP „Adaptation Fund‟ Report of the Conference of the Parties serving as the meeting of the Parties to the

Kyoto Protocol on its 4th session, held in Poznan from 1-12 December 2008, Addendum Decision 1/CMP.4

FCCC/KP/CMP/2008/11/Add.2, (Decision 1/CMP.4) paras 1 and 6 respectively; for the full provisions of these instruments, see

„Annex I- Rules of procedure of the Adaptation Fund Board‟ and „Annex IV-Strategic Priorities, Policies and Guidelines of the

Adaptation Fund‟ 9th plenary meeting 12 December 2008 (Annex IV Guidelines)

189

Decision 1/CMP.4 ( n 188 above) para 10

190

Decision 1/CMP.4 (n 188 above) para 14

171

implement projects.

191

This decision indicates that observers at AFB meetings may be representative of national or international, governmental or non-governmental and qualified in a field related to the work of the Fund.

192

The Operational Guidelines enunciate various aspects of the AF including project or programme requirement, endorsement by country, financing windows dealing with direct and indirect access, eligibility criteria, accreditation of implementing entities, fiduciary Standards, project cycle, and dispute settlement.

193

More recently, the AFB has been requested to continue the encouragement of access to funding through its direct access modality.

194

Being an emerging funding mechanism, the participation of indigenous peoples in the AF is just unfolding. Their participation featured substantially at the 21st meeting of the AFB which focused on the codification of environmental and social safeguards for funds

195

and stemmed from the realisation that the AFB lacks a policy document on environmental and social safeguards in the application of the fund.

196

In preparation for the meeting, it was directed that the secretariat should take into consideration existing safeguards in comparable programmes and provide an overview of safeguards that should apply to the AF.

197

It was highlighted at the meeting that entities receiving the AF funding must identify and manage the environmental and social risks associated with their activities.

198

This can be achieved by assessing potential environmental and social harms against vulnerable groups including indigenous peoples and the implementation of steps to avoid, minimise or mitigate those harms.

199

Examples of existing safeguards of signifance to indigenous peoples which were highlighted at the 21st meeting can be found in the review criteria of Operational Guidelines.

200

The review criteria largely aims to ensure that adaptation projects and programmes yield concrete benefits

191

Annex IV Guidelines ( n 188 above) para 11

192

Annex IV Guidelines ( n 188 above) para 32

193

Annex IV Guidelines ( n 188 above) paras 2-13

194

UNFCCC KP/CMP „Initial review of the Adaptation Fund‟ 9th plenary meeting 7 December 2012 (Decision 4/CMP.8) para

7, Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its 8th session, held in

Doha from 26 November - 8 December 2012, FCCC/KP/CMP/2012/13/Add.2 6

195

Adaptation Fund Board „Report of the 21st of the Adaptation Fund Board‟ 21st Meeting, Bonn, Germany, 3-4 July 2013

AFB/B.21/8/Rev.1 paras 84-96 (Adaptation Fund Board July Report)

196

Adaptation Fund Board „Report of the 2oth meeting of the Adaptation Fund Board‟ Bonn, Germany, 4-5 April 2013,

AFB/B.20/7, para 126 (Adaptation Fund Board April Report)

197

Adaptation Fund Board April Report (n 196 above) para 131

198

Adaptation Fund Board April Report (n 196 above) para 125

199

Adaptation Fund Board July Report (n 195 above) para 89

200

Adaptation Fund Board July Report (n 195 above) paras 84-96

172

for vulnerable groups. For instance, a critical question which guides the AFB in reviewing projects for approval is whether the project or programme will deliver economic, social and environmental benefits to vulnerable communities which, arguably, include indigenous peoples.

201

Also, although the Strategic Guidelines do not expressly mention the word

„indigenous peoples‟, there are provisions which contemplate that the concerns of indigenous peoples may not be ignored in AF projects, including provisions which urge the AFB, in assessing projects and programmes, to give particular attention to national communications and

NAPA,

202

the „Economic, social and environmental benefits from the projects‟,

203

arrangements for monitoring and evaluation and impact assessment,

204

the level of vulnerability,

205

access to the fund in a balanced and equitable manner,

206

as well as the capacity to adapt to the adverse effects of climate change.

207

More particularly, specific review criteria that include provisions for environmental and social safeguards, are described in the document titled „Instructions for Preparing a Request for Project or Programme Funding from The Adaptation Fund‟ (Request Instructions).

208

There are questions which, if appropriately and genuinely responded to by the implementing party, can address the plight of indigenous peoples. These questions reinforce the aims of the Strategic

Guidelines, as can be said of the questions calling for a description of the „economic, social and environmental benefits, with particular reference to the most vulnerable communities, and vulnerable groups within communities‟ a well as a description of how the project is consistent with national communications and NAPA. There are other questions in the Request Instructions which urge project applicants to describe the process of consultation, supply the list of stakeholders involved in the consultation process, and the vulnerable groups, including gender considerations.

201

Annex IV Guidelines (n 188 above) para 23

202

Annex IV Guidelines (n 188 above) para 15(a)

203

Annex IV Guidelines (n 188 above) para 15(b)

204

Annex IV Guidelines (n 188 above) para 15(f)

205

Annex IV Guidelines (n 188 above) para 16(a)

206

Annex IV Guidelines (n 188 above) para 16(c)

207

Annex IV Guidelines (n 188 above) para 16(g)

208

„Instructions for preparing a request for project or programme funding from adaptation fund‟, annex in Adaptation Fund

Board Guidance Document for Project and Programme Proponents to Better Prepare A Request For Funding, approved in the

17th meeting of the Board, Decision B.17/7, 17th meeting, Bonn, 15-16 March 2012, AFB/PPRC.8/4; this document is approved in 2012, see „Adaptation Fund Board Report of the 17th meeting of the Adaptation Fund Board‟ AFB/B.17/6, paras 38 &39

173

In all, through the structure as well as the normative content of its various funds, it can be asserted that the regulatory framework dealing with adaptation funds and the institutions under its aegis can feature and engage with indigenous peoples‟ land use and tenure in relation to adaptation. It remains to be seen whether similar conclusion can be reached concerning the regulatory framework relating to mitigation.

4.3.2 The International regulatory framework and mitigation

Mitigation refers to human intervention to reduce the sources or enhance the sinks of greenhouse gases.

209

Mitigation is crucial in that it is more beneficial for the global environment to promote mitigation, particularly prevention of deforestation.

210

Under the UNFCCC and the Kyoto

Protocol, the pillar instruments of climate change, developed countries have obligations to implement mitigation activities, particularly in developing and least developing countries. This obligation is legally founded in the UNFCCC preamble which requires developed countries to:

[t]ake immediate action in a flexible manner on the basis of clear priorities, as a first step towards comprehensive response strategies at the global, national and, where agreed, regional levels that take into account all greenhouse gases, with due consideration of their relative contributions to the enhancement of the greenhouse effect.

211

According to the Kyoto Protocol, developed countries included as Annex I Parties of the

UNFCCC have the obligation to „implement policies and measures‟. To that end, all parties to the UNFCCC, subject to the principle of common but differentiated responsibility,

212

are enjoined to do the following:

[f]ormulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, and measures to facilitate adequate adaptation to climate change.

213

209

Y Farham & J Depledge The international climate change regime: A guide to Rules, institutions and procedures (2004) 76

Intergovernmental Panel on Climate Change (IPCC) Impacts, adaptations and mitigation of climate change: Scientific-Technical

analyses‟(1995) Contribution of Working Group II to IPCC Second Assessment Report (SAR) 5

210

N Stern The economics of climate change (2006) 217

211

UNFCCC, preamble

212

UNFCCC, art 3(1)

213

UNFCCC, art 4(1)(b)

174

The references to „emissions by sources‟ and „removal by sinks‟ set out the basic context for the negotiation of forests as a crucial mitigation strategy but it is important to note until recently, that the forest sector has been negotiated within the context of forest benefits, conservation as well as the welfare of the forest-dependent communities.

214

These considerations have informed the explosion of forest-related instruments with no binding commitment to parties under international environmental law.

215

4.3.2.1 Forests in international environmental law

In analysing the polarization that featured in the negotiation of forest issues, particularly on the need for a binding instrument to regulate forest activities, Humphreys identifies two patterns in states‟ negotiation.

216

The first is traceable to the negotiations at the United Nations Conference on Environment and Development which was highly conflictual between the North and the

South. Having a history of forest conservation, the North was in favour of a binding convention to regulate the forest sector.

217

In opposing this view, the South, particularly supported by China, argued that establishing a convention will infringe upon their sovereignty over the use of natural resources.

218

A significant outcome of this phase of the negotiation was the agreement on the

Forest Principles which recognise this entrenched position.

219

Principle 1(a) emphasises the sovereign right of states to utilise their natural resources according to their own environmental policies. Forestry also received significant mention in the chapter 11 of Agenda 21 dealing with

„combating deforestation‟.

This positional approach evident in the discussion, however, has shifted to one of co-operation as shown in the subsequent accommodation of forest issues in major instruments dealing with the environment. For instance, forest preservation has been an active component of, and a strong asset in biodiversity conservation addressed by the Convention on Biological Diversity

214

D Humphreys Logjam: Deforestation and the crisis of global governance (2006)

215

CL McDermott, K Levin & B Cashore „Building the forest-climate bandwagon: REDD and the logic of problem amelioration‟

(2011) 11 Global Environmental Politics 85

216

D Humphreys „Forest negotiations at the United Nations: Explaining co-operation and discord‟ (2001) 3 Forest Policy &

Economics 125, 135

217

This position has however been questioned by authors arguing that the North has favoured a convention because it will promote the international trade of their timber industry, see for instance, A Agarwal „What‟s new at CSE, India‟ (2001) cited in

Humphreys (n 216 above)

218

Humphreys (n 216 above) 127

219

Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3-14 June 1992); Annex III Non-

Legally Binding Authoritative Statement of Principles for a global Consensus on the Management, Conservation and Sustainable

Development of All Types of Forests

175

(CBD).

220

Other instruments that illustrate the new thinking include the Johannesburg

Declaration on Sustainable Development and the Plan of Implementation of the World Summit on Sustainable Development which emphasise the need for the sustainable management of forests products.

221

The sustainable use of natural forests has been addressed by the Millennium

Ecosystem Assessment as a practical and prudent way to support the livelihoods of the world‟s poorest communities in developing countries.

222

Similarly, in the Outcome of the United Nations

Conference on Sustainable Development (Rio+20), parties reiterate that forests have social, economic and environmental benefits which contribute to sustainable development.

223

Prior to the discussion of forests as a mitigation measure under international climate negotiation, the Intergovernmental Panel on Forests (IPF), from 1995-1997, and, subsequently, the

Intergovernmental Forum on Forests (IFF) Working Group on Forests from 1997-2000, established by the Commission on Sustainable Development (CSD), have played crucial role in forest negotiations.

224

Over the five years of their existence, the IPF and IFF examined a wide range of forest-related topics and generated proposals for acting on the sustainable management of the forests which are collectively regarded as the IPF/IFF Proposals for Action.

225

This document requires countries to prepare national information on the management, conservation, and sustainable development of all types of forests, indicating in that information anticipated steps for implementation.

226

A notable outcome of the development at these levels was the consensus on the need to establish the United Nations Forests Forum (UNFF).

227

The UNFF was established in 2000 to build on the activities of the IPF/IFF and provide a forum for „continued policy development and dialogue among governments‟ on sustainable forest management.

228

After almost three years of tough negotiations, starting from the 5th session of the UNFF, an

220

CBD, art 2 defines „Biological diversity‟ as the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part including diversity within and between species and ecosystems

221

Johannesburg Declaration on Sustainable Development and the Plan of Implementation of the World Summit on Sustainable

Development, para 45 generally

222

Millennium Ecosystem Assessment (MEA) (2005)

223

Outcome of the United Nations Conference on Sustainable Development (Rio+20) „The future we want‟, Resolution adopted by the General Assembly, A/RES/66/288 paras 193-196 (The future we want)

224

The future we want (n 223 above) paras 128-129

225

„IPF/IFF Proposals for Action‟ http://www.un.org/esa/forests/pdf/ipf-iff-proposalsforaction.pdf (accessed 20 November 2013)

226

As above

227

Humphreys (n 216 above) 133

228

„Report on the 4th session of Intergovernmental Forum on Forest‟ ECOSOC Resolution/2000/35, para 2(f) 3(a)

176

instrument tagged the „Non-Legally Binding Instrument on All types of Forests‟ (All types of

Forests Instrument) was adopted in 2007 at its 7th session.

229

The purpose of the „All Types of Forests Instrument‟ is to strengthen the political commitment on forest issues, promote the contribution of forests to the attainment of environmental sustainability and offer a framework for national action and global co-operation.

230

One of the primary objectives of the instrument is the commitment to work globally, regionally and nationally to achieve, by 2015, the reversal of the loss of forest cover through sustainable forest management „including protection, restoration, afforestation and reforestation, and increased efforts to prevent forest degradation‟.

231

The significance of this instrument and the need for member states to improve forest related legislation, enforcement and good governance in order to support sustainable development were emphasised at the 2013 session of the UNFF.

232

The legal commitment in relation to the forests remains not binding but the issue of forests has taken a slightly different turn as an international climate mitigation response under the UNFCCC and, particularly, the Kyoto Protocol.

4.3.3 Forests as an international climate mitigation response

Despite much controversy around its definition, the UNFCCC sets out the basis for understanding that forests are critical to global climate change mitigation activities. As mentioned earlier, it enjoins parties to take measures to address human-induced emissions by sources and removals by sinks of all greenhouse gases.

233

The UNFCCC defines „source‟ as „any process or activity that releases a greenhouse gas, an aerosol or a precursor of a greenhouse gas into the atmosphere‟. It defines a „sink‟ as „any process, activity or mechanism which removes a greenhouse gas, an aerosol or a precursor of a greenhouse gas from the atmosphere‟.

234

These provisions of UNFCCC are reinforced by the Kyoto Protocol which requires each of the parties listed under Annex 1 to implement policies and measures aimed at protecting sinks and

229

„Non-legally binding instrument on all types of forests‟ A/C.2/62/L.5 (All Types of Forests Instrument)

230

All Types of Forests Instrument, para 1(a)-(c)

231

On the objectives of the instrument, see All Types of Forests Instrument, para 5

232

„Resolution of Working Group One on Progress in implementation of the non-legally binding instrument on all types of forests (Item 3), Regional and subregional inputs (Item 4), Forests and economic development (Item 5), and Enhanced cooperation (Item 8)‟ as adopted during the last session of UNFF10 on Saturday 20 April 2013

233

UNFCCC, art 4

234

UNFCCC, art 1(8) and (9)

177

enhancing reservoirs of greenhouse gases not prescribed under the Montreal Protocol, „taking into account its commitments under relevant international environmental agreements‟.

235

Arguably, forests fall within the above category definition as both a „source‟ and „sink‟ of greenhouse gases, not least because, as climate scientists have shown, the felling of forests for whatever purposes release carbon dioxide into the atmosphere and this situation contributes approximately 17-20% of total greenhouse gas emissions.

236

The protection of forests and their nurturing also serves as a „sink‟ in that it can remove carbondioxide from the atmosphere.

237

Besides, forests are a significant storehouse of biodiversity.

238

Forests provide services for indigenous peoples and local communities who rely on them for services, including food, shelter, clean water and climate prediction.

239

It is thus not a surprise that experts argue that it is difficult to meet the commitment to limit global warming without encouraging developing countries to keep their forests „standing‟.

240

Similarly, economists are of the view that reducing forest loss offers a low option in terms of cost for reducing global climate change.

241

In climate change discussions, the issue of forestry has featured under two distinct, but interrelated, mechanisms. It featured as an important component of the land use, land-use change and forestry (LULUCF) mitigation mechanism.

242

Forestry under the LULUCF is however limited in application to plantation forests, namely, afforestation and reforestation, as the only activities which, if carried out in developing countries, can be credited under the Clean

Development Mechanism (CDM) of the Kyoto Protocol.

243

However, the CDM approach has been questioned for promoting large monoculture tree plantations under the veil of afforestation and reforestation.

244

Few countries have been able to participate under the CDM projects in

235

Kyoto Protocol, art 2(1)(a)(ii)

236

Van der Werf et al „CO2 emissions from forest loss‟ (2009) 2 Nature Geoscience 737; PK Pachauri & A Reisinger (eds) IPCC

synthesis report: Climate change 2007 Contribution of Working Groups I, II, and III to the 4th Assessment Report of the

Intergovernmental Panel on Climate Change (2007)

237

Van der Werf et al (n 236 above)

238

E Wilson „Nature Revealed-Selected Writings 1949–2006‟ (2006); earlier the World Bank Report showed that the livelihood of no less than 1.2 billion poor people depend on the forests, see World Bank Sustaining forests. A development strategy (2004)

239

R Brunner et al „Back to its roots: REDD+ via the Copenhagen Accord‟ (Fall 2010) 1 Reconsidering Development 2

240

J Willem den Besten, B Arts & P Verkooijen „The evolution of REDD+: An analysis of discursive institutional dynamics‟

(January 2014) 35 Environmental Science & Policy 40

241

J Eliasch „Climate change: Financing global forests‟, UK Office of Climate Change (2008); also see Stern (n 210 above) who considers the costs of mitigation generally and concludes that the costs of embarking on mitigation is lesser than the costs of inaction

242

Kyoto Protocol, arts 3 (3 ) & 3(4) dealing with „Land use, land-use change and forestry‟

243

Willem den Besten et al (n 240 above) 42

244

J Kill et al Trading carbon: How it works and why it is controversial (2010) 119

178

forestry owing to its complex procedures.

245

In addition, the benefits of forest carbon projects under the CDM for the poor are doubted because of the low carbon price and its trade off with competing activities in support of local needs.

246

Ultimately, although not yet clearly defined, it is expected that afforestation and reforestation hitherto covered by the CDM will form part of the

„forest carbon enhancement‟ element of the REDD+.

247

As a result, the debate has shifted to the operationalisation of REDD+.

248

The REDD+ initiative becomes inevitable because the Kyoto Protocol, which governs the LULUCF, does not offer developing countries a space to engage with emission reductions generated through reducing of deforestation. Yet, it is necessary in that, unless standing forests are allowed to attract financial credits, communities and governments in developing countries have little incentive to prevent deforestation.

249

4.3.3.1 Reducing emissions from deforestation and forest degradation (REDD+)

Reducing Emissions from Deforestation and Forest Degradation (REDD+) as a mitigation initiative developed under the UNFCCC consists of five different activities: (1) reducing deforestation, (2) reducing degradation, (3) promotion of conservation of forest carbon stocks,

(4) incentivising sustainable management of forests, and (5) the enhancement of forests as holders of stocks of carbon in developing countries.

250

Since it was proposed as a forest-based mitigation strategy for a post-2012 Kyoto climate regime, REDD+ seeks to operate as an incentive for the developing countries to protect and better manage their forest resources, by

245

C Mbow, D Skole & D Moussa „Challenges and prospects for REDD+ in Africa: Desk review of REDD+ implementation in

Africa‟ (2012) GLP Report No.5 GLP-IPO, Copenhagen

246

B Fischer et al `Implementation and opportunity costs of reducng deforestation and forest degradation in Tanzania‟ (2011) 1

Nature Climate Change 161-164; C Mbow „Could carbon buy food? The stakes of mitigation versus adaptation to climate change in African Countries‟ (2009) 5 GLP News Letter 20-23

247

UN-REDD Programme „What are the ecosystem-derived benefits of REDD+ and why do they matter?‟ (1 October 2010) 3

248

J Robledo et al „Climate change: What are its implications for forest governance‟ in LA German, A Karsenty & A Tiani (eds)

Governing Africa‟s forest in a globalised world (2010) 354-76; T Griffiths Seeing “RED”? „Avoided deforestation‟ and the

rights of indigenous peoples and local communities (2007) Forest Peoples Programme 8; D Takacs Forest carbon law + property

rights (November 2009) 5-57

249

UNFCCC „Reducing emissions from deforestation in developing countries: approaches to stimulate action‟, Submission by the Governments of Papua New Guinea and Costa Rica to the provisional agenda of the Conference of the Parties at its 11th session‟ FCCC/CP/2005/MISC.1 3-4

250

Centre for International Environmental Law (CIEL) Know your rights related to REDD+: A guide for indigenous and local

community leaders (2014) 5; Wllem den Besten et al (n 240 above); UNFCCC „Report of the Conference of the Parties on its

13th session, held in Bali from 3-15 December 2007, Addendum, Part Two, Action Taken by the Conference of Parties at its 13th session (2008) FCCC/CP/2007/6/Add.1; REDD may also offer to forest communities opportunity for poverty alleviation and thereby having some adaptation utility, see G Kowero „Ideas on implementing REDD?‟ African Forestry (2010) 23; however, it is essentially a climate mitigation mechanism, see Mbow (n 245) 12

179

creating and recognising that standing forests have a financial value.

251

This financial value which will arise from the carbon stored by forests will evolve over time and, when traded, could attract similar or greater profits than the profits from logging, monoculture plantations, and agriculture which are drivers of deforestation.

252

To attain its current understanding in international climate change regulatory framework, REDD+ has evolved from two previous forms,

253

namely, Reducing Emissions from Deforestation (RED) and Reducing Emissions from

Deforestation and Forest Degradation (REDD).

254

a.

On the road to RED

RED was proposed by Costa Rica and Papua New Guinea on behalf of the Coalition for

Rainforest Nations (CRN) at the 2005 COP 11 in Montreal.

255

Prior to this proposal, the issue of forests was hotly contested in the build-up to the Kyoto Protocol, contributing largely to the stalling of the negotiations process. Several reasons have been presented as responsible for this development.

256

Developed countries argued for an arrangement that would allow them to credit the protection of their vast expanses of forests and use the credits to offset part of their obligations under the Kyoto Protocol regarding the reduction of carbon-dioxide emissions.

257

In the main, the argument of the developed countries was that forests should be credited even if not under the threat of deforestation in that, even if not under threat, forests continuously remove carbon from the atmosphere and function as carbon „sinks‟.

258

The proposal was disputed as a result of issues such as „leakage‟, „permanence‟ and

„additionality‟, which were argued as potentially capable of undermining the effectiveness of including deforestation in the climate change mitigation scheme. For example, it has been shown

251

E Corbera & H Schroeder „Governing and implementing REDD+‟ (2011) 14 Environmental Science & Policy 89-99; Brunner

et al (n 239 above) 5

252

Brunner et al (n 239 above) 5

253

Willem den Besten et al (n 240 above); D Humphreys „The politics of „avoided deforestation‟: Historical context and contemporary isssues‟ (2008) 10 International Forestry Review 433-442; PM Fearnside „Saving tropical forests as a global warming countermeasure: An issue that divides the environmental movement‟ (2001) 39 Ecological Economics 167-184

254

As above

255

Other participating countries working under the CRN include: Bangladesh, Central African Republic, Cameroon, Chile,

Congo, Colombia, Costa Rica, DRC, Dominican Republic, Ecuador, El Salvador, Fiji, Gabon, Ghana, Guatemala, Honduras,

Indonesia, Kenya, Lesotho, Malaysia, Nicaragua, Nigeria, Panama, Papua New Guinea, Paraguay, Peru, Samoa, Solomon

Islands, Thailand, Uruguay, Uganda, and Vanuatu, see Brunner et al (n 239) 5; L Constance et al „Operationalizing social safeguards in REDD+: Actors, interests and ideas‟ (2012) 21 Environmental Science & Policy 63, 64

256

Fearnside (n 253 above) 170; Humphreys (n 253 above) 434

257

Willem Den Besten et al (n 240 above) 42; Humphreys (n 253 above) 434

258

Willem Den Besten et al (n 240 above) 42

180

that „leakage‟ is inevitable in that the conservation of forests in one area may lead to deforestation in another space outside the boundary of a given project.

259

Also, the issue of

„permanence‟ is important since forests do not live forever and the carbon stored may, eventually be released, hence, its benefit as a climate mitigation measure is non-permanent. The nonpermanent nature of forests may be counterproductive as countries may be rewarded for forests which are potentially prone to subsequent deforestation.

260

„Additionality‟ connotes that payments for keeping the forests standing may amount to rewarding countries where forests are not under threat and which have contributed nothing substantial to the mitigation of climate change.

261

Owing to these controversies, the Marrakesh Accords afforded limited options for the crediting of forests, allowing only plantation forests, namely afforestation and reforestation, as part of the

Clean Development Mechanism (CDM) under which natural forests was excluded.

262

By 2004, a coalition of policy makers, academics including Joseph Stiglitz and Jeffrey Sachs, and the former

Prime Minister Somare of Papua New Guinea formed a network through which they argued the failure of CDM as an international mitigation mechanism as a result of its lack of incentive to protect natural forests.

263

It was this network that masterminded the submission for RED in 2005 by Papua New Guinea and Costa Rica at the COP 11, subsequent to which the SBSTA, in adopting the submission, called upon countries to present ideas on approaches to address technological and political issues pertaining to REDD.

264

b. Departing from RED to REDD for REDD+

In the SBSTA, countries with similar forest situations came together to ensure that a future policy after RED in relation to the forests would include options that cover their situations.

265

Issues on which the attention of the debate focused were the types of forest cover and rate of deforestation necessary for inclusion in future policy. In respect of these issues, two divergent

259

Humphreys (n 253 above) 439

260

As above

261

As above

262

Willen den Besten et al (n 240 above) 42; A Nel & K Sharife „East African trees and the green resource curse‟ in Bond et al

(eds) The CDM in Africa cannot deliver the money (2012) A report by the University of KwaZulu Natal Centre for Civil Society

(SA) and Dartmouth College Climate Justice Research Project (USA)

263

Willen den Besten et al (n 240 above) 42; MT Somare „Statement by Sir Michael T Somare, Prime Minister of Papua New

Guinea‟ (2005); JE Stiglitz „Conservation: Analysis‟ (2005) The Independent

264

Willem den Besten et al (n 240 above) 42

265

As above

181

coalition interests emerged from the countries working with the CRN. First, the countries that were mostly affected by forest degradation and not deforestation, contended the need for RED to address degradation. Leading this point were the countries in the Congo Basin which convinced others that it was technologically possible to account for carbon credits from reducing forest degradation.

266

Consequently, the focus in international climate change discourse shifted from

RED to „Reducing Emissions from Deforestation and Forest Degradation‟, or REDD, with

„forest degradation‟ indicating the additional „D‟. This change was required to tackle the problems of overgrazing and the degrading effects of deforestation which are peculiar to the forests system of developing countries.

267

The conceptual shift to REDD was officially recognised at the SBSTA in 2006.

268

The second group, a coalition formed around a group of countries with low, but relatively stable forest cover, such as India, or even with expanding cover, such as China, promoted the inclusion of conservation, sustainable forest management and enhancement of forest carbon stocks as part of REDD‟s scope.

269

Their ideas faced strong opposition from countries with high deforestation rates, notably Brazil and other countries in South America, which insisted that payments for forest protection should not extend to forests that were not under imminent threat.

270

Nonetheless, there was consensus on the need to extend the scope of REDD to cover three elements, namely, conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries, which became the „+‟ in REDD. It was officially recognised in 2007, at COP 13 in Bali , which adopted the Bali Plan of Action (BAP).

271

Notable decisions in subsequent meetings of the COP have reinforced the emergence of REDD+.

The Copenhagen Accord, which is the singular outcome of the event at COP 15, 2009, made progress in relation to issues, including its scope, guiding principles and safeguards of REDD+.

266

As above

267

Willem den Besten et al (n 240 above) 43 ; Brunner et al (n 239 above) 5

268

UNFCCC SBSTA „Reducing Emissions from Deforestation in developing countries: Approaches to Stimulate Action‟ (2006)

FCCC/SBSTA/2006/MISC.5

269

I Fry „Reducing emissions from deforestation and forest degradation: opportunities and pitfalls in developing a new legal regime.‟ (2008) 17 RECIEL 166–182; UNFCCC SBSTA„Views on the range of topics and other relevant information relating to

Reducing Emissions from Deforestation in developing countries‟ (2007) (FCCC/SBSTA/2007/ MISC.2); UNFCCC SBSTA

„Report on the second workshop on reducing emissions from deforestation in developing countries, Note by the secretariat‟

(2007) FCCC/SBSTA/2007/3 (SBSTA Report)

270

UNFCCC SBSTA „Views on the range of topics and other relevant information relating to Reducing Emissions from

Deforestation in developing countries‟ (FCCC/SBSTA/2007/ MISC.2); SBSTA Report (n 269)

271

UNFCCC CP „Bali Action Plan‟ Decision 1/CP.13, FCCC/CP/2007/6/Add.1

182

Signed by 114 nations amidst much disagreement regarding other matters on the agenda, the

Copenhagen Accord sets the stage for REDD+ as a global initiative to decelerate the alarming rate of deforestation.

272

In particular, the COP 15 adopted a decision on REDD+.

273

In its decision, the COP provided guidance for REDD+, based on work undertaken by SBSTA in a follow-up to decision 2/CP.13. The decision requires developing countries to identify drivers of deforestation and forest degradation as well as the activities that may reduce emissions and increase removals, and promote the stabilisation of forest carbon stocks.

274

Following negotiations, the contribution of COP 16 in 2010 at Cancun to the development of

REDD+, is reflected in the Cancun Agreements: Outcome of the work of the Ad-Hoc Working

Group on Long-term Cooperative Action under the Convention‟ (Cancun Agreements).

275

Reinstating the elements of REDD+, paragraph 70 of Cancun Agreements encourages parties from developing countries to contribute to mitigation actions in the forest sector by undertaking five activities, namely, (a) Reducing emissions from deforestation; (b) Reducing emissions from forest degradation; (c) Conservation of forest carbon stocks; (d) Sustainable management of forests; (e) Enhancement of forest carbon stocks. Importantly, the Cancun Agreements affirm, in implementing the activities mentioned under paragraph 70, that developing country parties should promote the safeguards referred to in paragraph 2 of appendix 1 of the agreement.

276

At the Durban Climate Change Conference, COP 17, in 2011, the COP addressed REDD+ in key decisions. For instance, in Decision 2/CP.17, it agreed on certain positive incentives on issues relating to REDD+. It agreed, notwithstanding the source or type of financing, that REDD+ activities should be consistent with the safeguards in appendix I of the Cancun Agreements.

277

In that decision it also considered that „appropriate market-based approaches‟ could be developed

272

UNFCCC CP „Copenhagen Accord‟ Decision 2/CP.15, FCCC/CP/2009/11/Add.1

273

UNFCCC CP „Methodological guidance for activities relating to reducing emissions from deforestation and forest degradation and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries‟ Decision 4/CP.15 , FCCC/CP/2009/11/Add.1 (Decision 4/CP.15)

274

Decision 4/CP.15 (n 273 above) para 1 generally

275

Decision 1/CP.16 (n 72 above) paras 2(c) and (d)

276

Decision 1/CP.16 (n 72 above) para 69; see Appendix 1 „Guidance and safeguards for policy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries‟, Decision

4/CP.15 (n 273 above)

277

UNFCCC CP „Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention‟

Decision 2/CP.17, FCCC/CP/2011/9/Add.1, para 63 (Decision 2/CP.17)

183

by the COP for results-based actions,

278

and noted that non-market-based approaches, such as joint mitigation and adaptation approaches, could be developed.

279

In another decision, titled

„Guidance on systems for providing information on how safeguards are addressed and respected and modalities relating to forest reference emission levels and forest reference levels as referred to in decision 1/CP.16‟,

280

the COP, agrees that systems for providing information on safeguards should be transparent and flexible as well as describe how all the safeguards are being addressed and respected.

281

Also, the COP agreed that countries should provide a summary of information relating to safeguards as part of their national communications.

282

In Durban the COP in another decision launched the Green Climate Fund, which will include REDD+.

283

At COP 18, 2012, Durban, further decisions were taken in respect of policy approaches and positive incentives on REDD+.

284

In particular, section C of Decision 1/CP.18 deals with finance for REDD+ activities. In 2013, it was decided that the information with respect to compliance with safeguards should be done voluntarily, and may be included in national communication or other communication channels including the UNFCCC web platform.

285

The extent to which the international framework relating to REDD+ considers the indigenous peoples‟ land tenure and use remains to be seen.

As an international mitigation intervention, REDD+ is developed and supported by the governance structure of several international initiatives including the UN-REDD Programme, and other multilateral initiatives such as the Forest Carbon Partnership Facility (FCPF) hosted by the World Bank.

286

There are also voluntary and independent initiatives, such as the Climate,

278

Decision 2/CP.17 (n 277 above) para 66

279

Decision 2/CP.17 (n 277 above) para 67

280

UNFCCC CP 'Guidance on systems for providing information on how safeguards are addressed and respected and modalities relating to forest reference emission levels and forest reference levels as referred to in decision 1/CP.16‟ Decision 12/CP.17,

FCCC/CP/2011/9/Add.2 (Decision 12/CP.17)

281

Decision 12/CP.17 (n 280 above) para 2

282

Decision 12/CP.17 (n 280 above) paras 3 - 5

283

UNFCC CP „Launching the Green Climate Fund, Annex Governing instrument for the Green Climate Fund‟ Decision

3/CP.17, FCCC/CP/2011/9/Add.1, para 35

284

UNFCCC CP „Agreed outcome pursuant to the Bali Action Plan‟ Decision 1/CP.18 , FCCC/CP/2012/8/Add.1

285

UNFCCC CP „The timing and the frequency of presentations of the summary of information on how all the safeguards referred to in decision 1/CP.16, appendix I, are being addressed and respected‟ Decision 12/CP.19, FCCC/CP/2013/10/Add.1

(Decision 12/CP.19) paras 3 and 4

286

UN-REDD Programme „Frequently asked questions (FAQs) and answers about REDD+‟ http://www.unredd.org/AboutREDD/tabid/102614/Default.aspx (accessed 18 October 2012) (UN-REDD Programme); K Barret „The World

Bank and UN-REDD: Big names and narrow focus‟ (2012) Ecossytem Marketplace 1; S Danon & D Bettiati „Reducing

Emissions from Deforestation and Forest Degradation (REDD+): What is behind the idea and what is the role of UN-REDD and

Forest Carbon Partnership Facility (FCPF)‟ (2012) South-East European Forestry Review Paper 95, 97; B Bosquet & AR

184

Community and Biodiversity Alliance (CCBA).

287

The activities of these supporting initiatives overlap, for instance, as shall be indicated in subsequent chapter, as part of readiness activities for REDD+ at the national level, these initiatives use a joint template for preparing proposal and guidelines.

However, as the case studies on REDD+ used in this study to demonstrate a general trend in

Africa fall into the categories mainly supported by UN-REDD programme, this section examines only the extent to which the institutions and instruments emanating from the UN-REDD National

Programme involve indigenous peoples and accommodate their land use and tenure in the context of REDD+ activities.

4.3.3.2 United

Nations Collaborative Programme on the Reduction of Emissions from

Deforestation and Forest Degradation in Developing Countries: Institutions and instruments a. Institutions and indigenous peoples

The UN-REDD National programme was launched in 2008 as a collaboration between three UN development Agencies, namely, the United Nations Environment Programme (UNEP), the

United Nations Development Programme (UNDP) and the Food and Agriculture Organisation

(FAO).

288

Through the technical knowledge, institutional networks, political relations, and resources of these three development agencies particularly, in relation to the environment, the

UN-REDD Programme aims to establish a structure to help nations prepare for participation in a

REDD+ mechanism.

289

The UN-REDD is governed by a Policy Board, Administrative Agent

Aquino „Forest Carbon Partnership Facility: Demonstrating activities that reduce emissions from deforestation and forest degradation‟ 3; Barret (n 286 above)

287

CCBA „About CCBA‟ http://www.climate-standards.org/about-ccba/ (accessed 18 October 2012)

288

UN-REDD Programme (n 286 above)

289

UNEP was founded in 1972 as an institution within the United Nations system to promote the „wise use and sustainable development of the global environment‟. UNEP assesses global, regional and national environmental conditions and trends; develops international and national environmental instruments ; and strengthens institutions for the wise management of the environment , see http://www.unep.org/About/ (accessed 18 October 2013); since 1966, the United Nations Development

Programme (UNDP) has been in partnership with people at different levels of society with the view of building crisis resilient nations and facilitating growth for lifestyle improvement. It has focused on four main areas including environment and sustainable development, see http://www.undp.org/content/undp/en/home/operations/about_us.html (accessed 18 October 2012); founded in 1943 by forty-four governments, meeting in Hot Springs, Virginia, the United States, one of the strategic objective of

Food and Agriculture Organisation (FAO) of the United Nations is to make agriculture, forestries and fisheries more productive and sustainable, see http://www.fao.org/about/en/ .About (accessed 18 October 2012)

185

also known as the Multi-Partner Trust Fund Office (MPTF) and a Secretariat as other components of its structure.

The Policy Board is composed of one full member from each of the three regions in which the programme operates, that is, Africa, Asia-Pacific and Latin America-Carribean region and two alternate members from up to a maximum of nine countries. Up to three seats are available for donors while one member of civil society is selected as a representative and three operate as observers.

290

Selected from one of the participating countries and from one of the participating

UN agencies, the Board has two co-chairs which rotate among the full members at least once yearly.

291

The UN-REDD Programme presently supports 48 partner countries across Africa,

Asia-Pacific and Latin America and the Caribbean, particularly with funds aimed at developing and implementing National REDD+ Strategies.

292

In Africa, countries receiving support for UN-

REDD Programme are the DRC, Nigeria, the Congo, the United Republic of Tanzania, and

Zambia.

293

The MPTF is the Administrative Agent (AA) of the UN-REDD Programme and it administers funds for REDD+ activities based on the decisions of the Policy Board. In addition to interfacing with donors, the MPTF performs other functions.

294

These include receiving funds from donors that wish to contribute, administration and the disbursement of funds as received, as well as the consolidation of statements and reports indicating how funds have been utilised.

295

Located in

Geneva, the UN-REDD Programme Secretariat supports the Policy Board through a range of activities including organizing meetings, producing reports and monitoring implementation of

Policy Board decisions.

296

In addition to serving as an important link for contact with the UN-

REDD Programme, the Secretariat liaises with other REDD+ initiatives, such as the FCPF, for a

290

The present full members are from Democratic Republic of Congo (DRC), Indonesia and Panama, see UN-REDD Programme

„Policy Board Composition‟ (2013) 2

291

292

As above

UN-REDD Programme „Partner Countries‟ http://www.un-redd.org/Partner_Countries/tabid/102663/Default.aspx(accessed 18

October 2013)

293

There are other African nations which though are not part of UN-REDD National Programmes but do receive targeted assistance in form of knowledge sharing and capacity building. These are Cameroon, the Central African Republic, Côte d'Ivoire,

Ethiopia, Gabon, Ghana, Kenya, Morocco, South Sudan, the Sudan,Tunisia and Uganda. „ UN-REDD Programme Partner

Countries‟ http://www.un-redd.org/Partner_Countries/tabid/102663/Default.aspx (accessed 18 October 2013)

294

„The Multi-Partner Trust Fund Office‟ http://mptf.undp.org/overview/office/what#mission (accessed 18 October 2013); `UN-

REDD Programme Handbook for National Programmes and Other National-Level Activities‟ (2012) (Handbook for National

Programmes)

295

As above

296

As above

186

variety of reasons, including the mobilization of funds.

297

The Secretariat offers leadership in

„strategic planning, and the development and management of reporting, monitoring and evaluation frameworks for the Programme‟.

298

It encourages inter-agency partnership and communication in order to ensure effective implementation of the programme.

299

Indigenous peoples feature in the UN-REDD institutional structure, particularly on the Policy

Board. They are represented by the chair of the United Nations Permanent Forum on Indigenous

Peoples (UNPFIP) as a full member and three observers.

300

Each of these observers has a representative from the three regions of programme operation.

301

The indigenous peoples‟ representatives with observer status are self-selected, although the process is facilitated by the

UN-REDD secretariat and participating UN Organisations.

302

Funds are provided by the UN-

REDD programme to enable the representatives of three indigenous peoples with observer status to attend policy board meetings.

303

It may be argued that this level of representation is low considering the diversity of indigenous peoples in the world and the urgency of their issues.

304

However, it is not a discouraging starting point in a mechanism which is still evolving. The presence of indigenous peoples‟ organisations at least will ensure that their voice is heard where it matters most: at the policy making level of the programme. The influence of their participation at that level cannot be overstated considering the presence of the chair of the UNPFII, an organisation which has helped in documenting the adverse impacts of climate change on indigenous peoples.

305

Thus, it is reasonable to expect that its participation can help in drawing attention and formulating responses to the adverse impacts of REDD+ activities on indigenous peoples‟ land use and tenure.

297

Handbook for National Programme (n 294 above)

298

As above

299

As above

300

UN-REDD Programme, Policy Board Composition (2013) 2

301

As above

302

UN-REDD Programme, Policy Board Composition (2013) 3

303

As above

304

Mr Kironyi from Tanzania also made this point in the interview with the author at the REDD+ Stakeholders Dialogue held at

Cape Town South Africa 2013

305

See for instance its commissioned work on climate change and mitigation indigenous peoples, „Report on the impacts of climate change mitigation measures on indigenous peoples on their territories and lands‟ E/C 19/2008/10 (Unedited version)

(Indigenous peoples climate change mitigation report)

187

b. REDD+ instruments and indigenous peoples

At the Cancun COP, the normative basis for implementing REDD+ was established in form of safeguards. According to paragraph 2 of Appendix 1 of the Cancun Agreements:

306

When undertaking the activities referred to in paragraph 70 of this decision, the following safeguards should be promoted and supported:

(a) That actions complement or are consistent with the objectives of national forest programmes and relevant international conventions and agreements;

(b) Transparent and effective national forest governance structures, taking into account national legislation and sovereignty;

(c) Respect for the knowledge and rights of indigenous peoples and members of local communities, by taking into account relevant international obligations, national circumstances and laws, and noting that the United

Nations General Assembly has adopted the United Nations Declaration on the Rights of Indigenous Peoples;

(d) The full and effective participation of relevant stakeholders, in particular indigenous peoples and local communities, in the actions referred to in paragraphs 70 and 72 of this decision;

(e) That actions are consistent with the conservation of natural forests and biological diversity, ensuring that the actions referred to in paragraph 70 of this decision are not used for the conversion of natural forests, but are instead used to incentivise the protection and conservation of natural forests and their ecosystem services, and to enhance other social and environmental benefits;

(f) Actions to address the risks of reversals;

(g) Actions to reduce displacement of emissions.

The subsequent decisions of the COP, as earlier indicated, require that parties through national communications and other channels, indicate their level of compliance with these safeguards.

307

Relying on the foregoing, it can be stated that indigenous peoples‟ land use and tenure are expected to be respected in the implementation of REDD+ activities. Also, since the UN-REDD

Programme is one of the international initiatives involved with the implementation of REDD+, the argument can be made, in line with the rider to paragraph 2 of Appendix 1 of the Cancun

Agreements, that the UN-REDD Programme is expected to ensure the promotion and support of these safeguards which urge respect for the rights of indigenous peoples and, arguably, their land tenure and use.

306

Decision 1/CP.16 (n 72 above)

307

See Decision 12/CP.17 (n 280 above) and Decision 12/CP.19 (n 285 above) respectively

188

The validity of the argument is supported by a range of documents put in place by the UN-

REDD Programme which draw from and are consistent with the broad guidance provided by the

Cancun Agreements. Key examples of these documents being developed, and largely reflecting the Cancun safeguards, are the Social Principles Risk Assessment Tool, Social and

Environmental Principles and Criteria, Guidelines on Stakeholder Engagement in REDD+

Readiness With a Focus on the Participation of Indigenous Peoples and Other Forest-Dependent

Communities, and the UN-REDD Guidelines on Free, Prior and Informed Consent.

i. Social Principles Risk Assessment Tools

The Social Principles Risk Assessment Tools (SPRAT) emerged against the backdrop that the effective management of forests and the distribution of its benefits are crucial to the success of

REDD+ policies and measures.

308

It emerged within that thinking that stakeholders who depend on the forests are unlikely to refrain from using the forests as a source of income if distribution of benefits is uncertain or untimely or if corruption is perceived as high.

309

It is not surprising that a draft Social Principles Risk Assessment Tools (SPRAT) was developed in 2010 to be consistent with the safeguard guidance offered by the UNFCCC‟s draft AWG-LCA text on

REDD+ which informed the Cancun Agreements.

310

The SPRAT offers three interrelated principles that have implications for indigenous peoples in the context of climate change. These are the principles of good governance, stakeholders‟ livelihoods and policy coherence.

311

Each of these principles contains criteria and questions to assist users in assessing the potential social risks of REDD+ as a mitigation strategy, particularly in the design and implementation of national UN-REDD programmes.

312

Accordingly, it can be expected, if appropriately deployed, that the SPRAT can help prevent social risks involved with REDD+ and hence protect indigenous peoples‟ land use and tenure in line with paragraph 2(c) of Cancun Agreements.

308

UN-REDD National Programme „Social Principles Risk Assessment Tools‟ October (SPRAT) (2010)

309

As above

310

As above

311

As above

312

McDermott et al (n 215 above) 68; „The United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries Supporting Inclusive and Effective National Governance Systems for REDD+‟

UNDP‟ (June 2010)

189

According to SPRAT,

313

the principle of good governance is to ascertain whether a programme meets the standards of good governance respecting elements such as integrity, transparency and accountability, as well as stakeholder participation. It seeks to avoid involuntary settlement, protect traditional knowledge and help in realising the social, as well as political, well-being of the stakeholders.

314

In addition to its reflection of paragraph 2(d) of the Cancun Agreements, in dealing with policy coherence, principle 3 expects mitigation measures to agree with the sustainable management of forest, forestry plans and other relevant policies and treaties which link with paragraph 2(e) of the Cancun Agreements.

315

To the indigenous peoples who may suffer displacement from their land as a result of project implementation, SPRAT offers some hope in the implementation of REDD+ as a climate mitigation measure.

ii. Social and Environmental Principles and Criteria

The Social and Environmental Principles and Criteria (SEPC) appear to be an extension of

SPRAT since it is not certain that they have replaced the latter. Developed in collaboration between UNDP and UNEP,

316

SEPC is conceived with the understanding that REDD+ has beneficial potentials beyond carbon value. In addition to payments for carbon, the advantages from REDD+ can include financial benefits, such as employment, investments in local infrastructure and empowerment of communities in terms of access to forests, land and nontimber forest products, and enhanced local environmental quality.

317

However, as REDD+ can be harmful to the host communities ,

318

SEPC is designed to operate as a response not only to assist with the realisation of the benefits associated with REDD+, but to mitigate its risks.

319

The SEPC aligns with paragraph 2(e) of the Cancun Agreements in offering a guiding frame for the UN-

REDD Programme to address social and environmental issues in UN-REDD National

313

SPRAT (n 308 above)

314

SPRAT (n 308 above) 2

315

As above

316

„UN-REDD Programme Social & Environmental Principles and Criteria, version 1‟ UN-REDD/PB6/2011/IV/1 (SEPC); also see „UN-REDD Programme Social and Environmental Principles and Criteria‟ UN-REDD Programme, (SEPC) 8th Policy Board meeting 25-26 March 2012 Asunción, Paraguay 3; UN-REDD Programme Social and Environmental Principles and Criteria, version 3 Draft for Consultation (SEPC Version 3)

317

SEPC (n 316 above) 8

318

As above

319

As above

190

Programmes and other UN-REDD funded activities as well as helping countries to develop national approaches to REDD+ safeguards in accordance with the UNFCCC.

320

SEPC consists of seven broad principles and associated criteria that further explain each principle,

321

and which are in line with the safeguards provided under the Cancun Agreements, particularly in relation to indigenous peoples.

322

Illustrating this congruence is principle 1 of

SEPC which focuses on the need to ensure that the norms of democratic governance are reflected in the national commitments and agreements associated with REDD+. This principle agrees with paragraph 2(d) of Appendix 1 to the Cancun Agreements on the need for full and effective participation of relevant stakeholders, including indigenous peoples. Also, parties involved in the implementation of projects are urged under principle 2 to respect and protect stakeholders‟ rights in line with international obligations. This is similar to paragraph 2(c) of Appendix 1 to the

Cancun Agreements for the knowledge of indigenous peoples and members of local communities in line with UNDRIP. According to principle 3, parties should ensure that projects promote sustainable livelihoods and poverty reduction; principle 4 requires a project to contribute to lowcarbon and, climate-resilient sustainable development policy. These principles, together with principles 5, 6, and 7 which respectively enjoin parties to protect natural forests from degradation, enhance the multiple functions of forest and avoid or reduce adverse impacts of activities on non-forest ecosystem services and biodiversity, are compatible with paragraphs 2(f) and (g) of Appendix 1 to the Cancun Agreements. These paragraphs respectively require that

REDD+ activities should support actions aimed at reducing emissions.

iii. Guidelines on Stakeholder Engagement in REDD+ Readiness with a Focus on the

Participation of Indigenous Peoples and Other Forest-Dependent Communities (Joint

Stakeholder Guidelines)

The Joint Stakeholder Guidelines have an antecedent in the Operational Guidance on the

Engagement of Indigenous Peoples and Other Forest-Dependent Communities

323

(Operational

Guidance) which was developed by the UN-REDD Programme in 2009. The Operational

320

SEPC (n 316 above) 3

321

SEPC (n 316 above) 5-7

322

See Decision 1/CP.16 (n 72 above) Appendix 1, para 2(e)

323

UN-REDD „Operational Guidance: Engagement of Indigenous Peoples and Other Forest-Dependent Communities‟

Working Document, 25 June 2009

191

Guidance built on the recommendations of the Global Indigenous Peoples‟ Consultation on

REDD+

324

held in Baguio City, the Philippines, in November 2008. A collaboration between the Forest Carbon Partnership Facility (FCPF) and the UN-REDD Programme, it aims to address the overlap involved in the performance of their functions in terms of scope of work and countries under their respective coverage.

325

It was felt that the challenge of needless duplication could be reduced through the development of joint materials focusing on effective participation and consultation, as well as stipulating concrete guidance for planning and implementing consultation.

326

It is intended to encourage effective stakeholder engagement in the context of

REDD+.

327

In aiming at realising this end, the Joint Stakeholder Guidelines aligns with paragraph 2(d) of Appendix 1 to the Cancun Agreements which urges parties to respect the full and effective participation of relevant stakeholders.

328

The Joint Stakeholder Guidelines are unique in that they particularly focus on indigenous peoples and forest-dependent communities. This is not surprising considering the precarious situation of these peoples and their valuable contribution to the forests on which they rely not only for their social and economic livelihoods, but also for their cultural and spiritual wellbeing.

329

The Guidelines contain a description of relevant policies on indigenous peoples and other forest-dependent communities, principles and guidance for effective stakeholder engagement; and practical steps to ensure planning and implementing effective consultations.

The policies highlighted under the guidelines include international instruments such as UNDRIP, which in articles 20 to 24 allows for the protection of indigenous peoples‟ land rights. They also refer to the UN Common Understanding on the Human Rights Based Approach to Development

Co-operation which affirms that all programmes on development should advance the realisation

324

„Global Indigenous Peoples‟ Consultation on Reducing Emissions from Deforestation and Forest Degradation (REDD)‟ http://archive.unu.edu/climate/activities/indigenousPeople_REDDConsultation.html(accessed 18 October 2013)

325

„Guidelines on Stakeholder Engagement in REDD+ Readiness With a Focus on the Participation of Indigenous Peoples and

Other Forest-Dependent Communities‟(Joint Stakeholders‟ Guidelines) 20 April 2012 (revision of March 25th version)

326

As above

327

Stakeholders‟ Guidelines (n 325 above) para 4

328

Decision 1/CP.16 (n 72 above) para 2(d)

329

Stakeholders‟ Guidelines (n 325 above) 1-2

192

of human rights.

330

Arguably, it suggests that there is implied recognition that the protection of indigenous peoples is crucial in the implementation of REDD+.

Reference is also made to the UN General Assembly Programme of Action for the Second

International Decade of the World‟s Indigenous Peoples; a document that urges states to take positive steps to respect the human rights of indigenous peoples without discrimination.

331

In the context of the FCPF, the Stakeholders‟ Guidelines refer to the World Bank Operational Policies which are of relevance to indigenous peoples. In particular, these include Operational Policy 4.10 on indigenous peoples that seek to ensure respect for the dignity, human rights, economies, and cultures of indigenous peoples by the projects or missions of the Bank.

332

The policy specifies that the Bank will provide financing for projects only where free, prior, and informed consultation brings about a broad community support to projects by indigenous peoples.

333

While the requirement for free prior and informed consultation is different from consent, it is not impossible, if genuinely carried out as anticipated by the document, that consent will be an inevitable outcome of consultation.

iv. Guidelines on Free, Prior and Informed Consent

The UN-REDD Guidelines on Free, Prior and Informed Consent (FPIC) are the result of an attempt to improve on the Joint Stakeholder Engagement Guidelines in that they set out the normative, policy and operational content for FPIC which are not described in detail under the

Joint Stakeholder Engagement Guidelines.

334

To reach their present form, the FPIC Guidelines are an outcome of three regional consultations which were variously held with stakeholders in

Vietnam, Panama and Tanzania.

335

Also, rather than using the word „consultation‟, it affirms that

„consent‟ is the end of engaging with populations, including those with indigenous status.

Although FPIC is not specifically mentioned, the Cancun Agreements stipulate, when undertaking REDD+ activities, that parties should ensure that such activities complement

330

„The human rights based approach to development co-operation: Towards a common understanding among UN Agencies‟ http://www.undg.org/archive_docs/6959 the_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_Understanding_among_UN.pdf (accessed 18 October 2013) (HRBA)

331

„Programme of action for the 2nd international decade of the world‟s indigenous people‟ Resolution adopted by the General

Assembly on 16 December 2005, UN General Assembly Resolution, 60/142 60/142

332

World Bank „OP 4.10-Indigenous Peoples‟ ( OP.4.10)

333

OP.4.10 (n 332 above) para 7

334

„UN-REDD Guidelines on Free, Prior and Informed Consent‟ January 2013 (UN-REDD FPIC)

335

UN-REDD FPIC (n 334 above) 9

193

international conventions and agreements.

336

Hence, since the Cancun Agreements incorporate conventions and instruments that provide for FPIC, such as ILO Convention 169 and the

UNDRIP, it can be argued that the FPIC Guidelines aim to fulfil Cancun Safeguards. The FPIC

Guidelines set out in clear terms the meaning of various elements of the FPIC:

337

they identify the expectations of the UN-REDD programme in relation to the role of the UN-REDD partner countries in REDD+ activities,

338

when FPIC is required and applied.

339

They shed light on the appropriate persons to seek out and gain consent from as well as highlight the outcome of the

FPIC process,

340

the operational framework for seeking FPIC and national grievance mechanisms.

341

Indigenous peoples‟ issues, particularly in relation to land use and tenure, are central to the explanation offered on FPIC in the Guidelines. First, in defining the various elements that constitute FPIC, the FPIC Guidelines rely on the understanding of FPIC endorsed by the United

Nations Permanent Forum on Indigenous Issues (UNPFII).

342

It defines „free‟ to mean consent which is given without „coercion, intimidation or manipulation‟.

343

This suggests that the process should be self-directed by the community and not externally imposed.

344

„Prior‟ connotes that

„consent is sought sufficiently in advance of any authorization or commencement of activities‟.

345

It further suggests that time is given to the community to „understand, access, and analyze information on proposed activities‟.

346

In this regard, information should be given to the community before activities are initiated.

347

According to the FPIC Guidelines, the „informed‟ element of the FPIC deals mainly with „the nature of the engagement and type of information that should be provided prior to seeking consent and also as part of the on-going consent processes‟.

348

The information should be handy, complete, clear, in culturally acceptable language, widespread in reach, and touching the positive and negative aspects of REDD+

336

Decision 1/CP.16 (n 72 above) para 2 (a)

337

UN-REDD FPIC (n 334 above) 18

338

UN-REDD FPIC (n 334 above) 22

339

UN-REDD FPIC (n 334 above) 24-28

340

UN-REDD FPIC (n 334 above) 29

341

UN-REDD FPIC (n 334 above) 32-34

342

„Report of the international workshop on methodologies regarding free prior and informed consent‟ E/C.19/2005/3, endorsed by the UNPFII at its 4th session in 2005 (FPIC Report)

343

FPIC Report (n 342 above) para 46(i); UN-REDD FPIC (n 334 above)18

344

UN-REDD FPIC (n 334 above)18

345

FPIC Report (n 342 above) para 46(i)

346

UN-REDD FPIC (n 334 above)19

347

As above

348

UN-REDD FPIC (n 334 above) 19

194

projects.

349

„Consent‟ means that the decision is collectively reached through the „customary, decision-making processes of the affected peoples or communities‟.

350

Consent, according to the

FPIC Guidelines, is a „freely given decision that may result to a yes or a no‟ but includes the option to reconsider if new circumstances emerge.

351

Consent is understood as a collective decision, which may be given or withheld in phases and reached in accordance with their own customs and traditions.

352

In addition to the general link with indigenous peoples, more importantly, these instruments emphasise the land tenure and use by indigenous peoples and generally animate related issues of participation, carbon rights and benefit-sharing, and access to remedies.

c. Implications of instruments for indigenous peoples i. Land tenure and use

SPRAT offers a range of principles that specifically speak to the situation of indigenous peoples‟ land use and tenure. For instance, in explaining principle 1 that deals with good governance,

SPRAT requires project documentation to respond to a range of questions, including whether (i)

UNDRIP and Convention 169 have been ratified or endorsed, (ii) there is sufficient documentation identifying these peoples, (iii) proposed projects will impact on indigenous peoples‟ lands, territories, resources or livelihood and (iv) the potential impacts of REDD programmes have been thoroughly analysed and communicated to these groups.

353

In discussing the criteria associated with its principles, SEPC highlights issues that relate to indigenous peoples‟ land use and tenure. In elaborating on principle 2, for instance, participants in REDD+ are to safeguard the rights of indigenous peoples, local communities and other vulnerable and marginalised groups to land, territories and resources. In relation to realising principle 6, SEPC provides that land-use planning for REDD+ should respect local and other stakeholders‟ values. Also, regarding principle 7, project participants are enjoined to prevent or

349

As above

350

UN-REDD FPIC (n 334 above) 20

351

As above

352

As above

353

UN-REDD FPIC (n 334 above) 7

195

avoid adverse activities in the form of land-use change to agriculture, or activities preventing an existing use of forests, such as grazing.

354

The Joint Stakeholders‟ Guidelines urge that the issues of land tenure, resource-use rights, property rights and livelihoods are important to indigenous peoples

355

in that in many parts of tropical countries, it is certain that indigenous peoples‟ customary/ancestral rights may not be codified or consistent with national laws.

356

To this end, the Guidelines highlight the relevance of a legal and policy framework including international instruments, such as UNDRIP which copiously requires the protection of indigenous peoples‟ land rights. It obligates the states not to take any action likely to disposses indigenous peoples of their land,

357

or forcefully remove them,

358

but urges the states to maintain and strengthen the spiritual relationship of indigenous peoples with their land,

359

and legally to recognise and protect their land rights.

360

The recognition of these instruments in the Joint Guidelines leaves little doubt that the protection of indigenous peoples, particularly their land use and tenure, is an essential component of the

Joint Guidelines. The UN-REDD FPIC similarly sets out a framework including case-law, that should guide the REDD+ activities in dealing with indigenous peoples‟ land tenure and use. For instance, it refers to institutional policies, including the International Finance Corporation (IFC)

Performance Standard which came into effect on January 2012.

361

According to the IFC Standard,

FPIC of indigenous peoples should be secured in respect of activities involving the commercial

354

UN-REDD FPIC (n 334 above) 11

355

Joint Stakeholders‟ Guidelines (n 325 above)

356

As above

357

See UNDRIP, art 8(2)(b)

358

UNDRIP, art 10

359

UNDRIP, art 25

360

UNDRIP, art 26

361

„IFC Performance Standard 7 – V2 Indigenous Peoples‟ is a product of revisions largely stemming from intensive study undertaken in 2009 by IFC management of its Sustainability Framework. The study is titled „IFC‟s Policy and Performance

Standards on Social and Environmental Sustainability, and Policy on Disclosure of Information: Report on the First Three Years of Application‟. Comprising three components: (1) Policy on Environmental and Social Sustainability, which outlines the IFC‟s obligations with respect to environmental and social sustainability; (2) Performance Standards, which details IFC clients‟ responsibilities for mitigating their environmental and social risks; and (3) Access to Information Policy, which addresses transparency issues, the Sustainability Framework came into operation in April 30, 2006. The Performance Standard

7: Indigenous Peoples, adopted in 2006, provided for a standard of consultation in an FPIC and not consent. Hence, it was roundly condemned as weak by the civil society which also urged the IFC to adopt a „consent‟ standard for projects dealing with indigenous peoples‟. This call eventually made its way into the IFC Performance Standard 7 – V2 Indigenous Peoples. On the account of the evolution and criticism of the IFC Performance Standard 7 – V2 Indigenous Peoples, see SH Baker „Why the

IFC‟s free, prior, and informed consent policy does not matter (yet) to indigenous communities affected by development projects‟

(2013) 30 Wisconsin International Law Journal 668; for the section incorporating the IFC standard under UN-REDD FPIC, see

UN-REDD FPIC (n 334 above) 25, 26

196

use of land and natural resources, cultural resources and the relocation of indigenous peoples.

362

The Environmental and Social Policy of the European Bank for Reconstruction and

Development, like the FPIC Guidelines, lists similar circumstances in respect of which FPIC is required with regard to project-activities.

363

In setting out the operational framework for seeking FPIC, the FPIC Guidelines seek to protect indigenous peoples‟ land rights. This is discernible from steps outlined under the operational framework which include the requirements that FPIC should be carried out by partner countries in collaboration with relevant right holders. The operational framework further indicates that the scoping review in respect of FPIC should include a description of the legal status of the land, territory and resources of which the project is being proposed and indicate its specificity, that is, whether formal and informal and/or customary use by the rights-holders.

364

In addition to identifying the circumstances in respect of which FPIC is required under the UNDRIP, the FPIC

Guidelines set out the case-law from regional human rights system which considered indigenous peoples‟ land use and tenure. For instance, in explaining that states are required to secure the consent of indigenous peoples through their freely identified representatives or institutions,

365

the

FPIC Guidelines refer to the decision of the Inter-American Commission of Human Rights in

Saramaka v Suriname.

366

As subsequently confirmed by the Inter-American Court, consent is required in the cases of „any development, investment, exploration or extraction plans‟ which are defined as „large-scale development or investment projects that have a significant impact on the right of use and enjoyment of ancestral territories‟.

367

Similarly, the FPIC Guidelines refer to the

Endorois case where the Commission reached a similar conclusion as in the Saramaka case that consent is required for „any development or investment projects that would have a major impact‟.

368

This signifies that it is given that consent is necessary for any project that will disturb indigenous peoples‟ land use and tenure.

362

IFC Performance Standard 7 – V2 Indigenous Peoples, para 16

363

UN-REDD FPIC (n 334 above) 26

364

UN-REDD FPIC (n 334 above) 32

365

UN-REDD FPIC (n 334 above) 25

366

Saramaka People v Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, (28 November 2007) (Suriname case)

367

Suriname case (n 366 above) paras 129, 137

368

Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois

Welfare Council) (Endorois case) 27th Activity Report: June-November 2009, para 291

197

ii. Participation

The UN-REDD National Programme has a range of instruments with provisions that can motivate the participation of indigenous peoples and thereby avail them of the opportunity to take part in decisions affecting their land tenure and use. Principle 1 of SPRAT, dealing with good governance, itemises stakeholder participation as critical to the implementation of climate mitigation projects.

369

SPRAT requires projects to identify all stakeholders and give special attention to the most vulnerable groups by observing their free, prior and informed consent.

370

Also, programmes are expected to indicate whether a consultative process to seek free, prior and informed consent and the process to conduct it may be implemented.

371

According to the SEPC, stakeholders in project implementation should ensure full and effective participation of relevant stakeholders, especially indigenous peoples and forest-dependent communities.

372

Free, prior and informed consent is a critical requirement for the participation of indigenous peoples in all projects impacting on their lands, territories and resources.

373

The Stakeholders‟ Guidelines set out common guidance principles for the effective engagement of indigenous peoples which REDD+ should observe whether supported by FCPF or UN-

REDD.

374

According to the Guidelines, the consultation process should ensure that the voices of vulnerable groups are heard.

375

In conducting consultation, focus is required on issues such as transparency and timely access to information.

376

For consultation to be meaningful in the context of REDD+, the Stakeholders Guidelines urge that information on project implementation must be communicated to indigenous peoples in a culturally acceptable manner.

377

It must further aim at allowing project investors sufficient time to fully understand and incorporate the concerns and recommendations of local communities in the design of the consultation processes.

378

Indigenous peoples with complaints or issues relating to their land use and tenure can use the consultation in this context to make them known to other project stakeholders.

369

SPRAT (n 308 above)

370

SPRAT (n 308 above) 7, 8

371

SPRAT (n 308 above) 8

372

SEPC (n 316 above) 8

373

SEPC (n 316 above) 9

374

See generally Stakeholders‟ Guidelines (n 325 above) para 8

375

Stakeholders‟ Guidelines (n 325 above) para 8(a) and (b)

376

As above

377

As above

378

Stakeholders‟ Guidelines (n 325 above) para 8(b)

198

According to the Guidelines, consultation should occur voluntarily, leading either to the giving or withholding of consent in the case of UN-REDD Programme.

379

Such consultations should accommodate and respect the traditional institutions and organisations of indigenous peoples.

380

Also, the Stakeholders‟ Guidelines outline and set out the practical steps on how to conduct consultation of relevance to indigenous peoples land use and tenure.

381

First, stakeholders are expected to define the desired outcomes of consultation. In the context of REDD+, this signifies that stakeholders should set out the mandate, degree of participation and access to information for the consultation exercise.

382

Second, the planner of the consultation should clearly identify the groups that have an interest/stake in the forest and those that will be affected by REDD+ activities and ensure their inclusion. Third, in accordance with the Stakeholders‟ Guidelines, issues to consult on should be defined and may include the type and pattern of land use by indigenous peoples and other forests dependent communities, land rights and tenure system, the opportunity cost of land use, as well as role of the private sector.

383

Fourth, the terms of the consultation should be defined and may include information on timing, the process of determining consultation outcome, and representation. Fifth, for an effective consultation, participants must decide on which approach to use for consultation and ensure that such an approach allows for bottom up participation and information sharing.

384

Sixth, where necessary, the initiator of REDD+ project should ensure that the capacity of stakeholders is developed, possibly through advance training, to ensure their contribution and understanding of issues.

385

Finally, consultation should be conducted in line with the terms and outcome of findings, and then analysed for dissemination to all participants.

386

In specifying for details to be followed in relation to participation, the FPIC Guidelines will be useful in addressing issues relating to indigenous peoples‟ land use and tenure.

379

Stakeholders‟ Guidelines (n 325 above) para 8(c)

380

Stakeholders‟ Guidelines (n 325 above) para 8(d)

381

Stakeholders‟ Guidelines (n 325 above) para 10 generally

382

As above

383

As above

384

As above

385

As above

386

As above

199

iii. Carbon rights and benefit-sharing

The UN-REDD instruments are unique in terms of the provisions relating to carbon rights and benefit-sharing which are of significance, particularly in relation to mitigation activities on indigenous peoples‟ lands. Inspite of their general reference to carbon rights, none of the UN-

REDD instruments offers a definition. However, there are scholarly attempts at definition of carbon rights.

387

According to Cotula and Mayers, „carbon rights are a form of property right that

“commoditise” carbon allowing for its trading‟.

388

They have also been considered as „intangible assets created by legislative and contractual arrangements that allow the recognition of separate benefits arising from the sequestration of carbon‟.

389

In the view of Peskett and Brodnig, carbon rights simply refer to a new form of property right in forests in the light of the emerging negotiation in climate change discussions which is establishing new funds and markets for the purpose of REDD+.

390

As Peskett and Brodnig further explain, certain questions are pertinent for an understanding of the nature of carbon as property. These questions relate to what is being owned, who may own what, who has the right to benefits and how these may be integrated into international and national REDD+ regimes.

391

The UN-REDD Programme instruments describe carbon rights in relation to the land tenure and use by indigenous peoples. Dealing with good governance, SPRAT requires that the project should spell out how carbon rights and other benefits are fairly distributed.

392

In explaining principle 2 of the SEPC, criterion 7 calls for the respect, promotion, recognition and „exercise of equitable land tenure and carbon rights by indigenous peoples and other local communities‟.

393

In explaining principle 3 of the SEPC,

394

criterion 12 requires parties to safeguard impartial, equal and transparent benefit-sharing and distribution among relevant stakeholders with special attention to the most vulnerable and marginalised groups.

395

In formulating and implementing

REDD+, the Joint Guidelines call for clarification of the rights to land and carbon assets,

387

L Peskett & G Brodnig Carbon rights in REDD+: Exploring the implications for poor and vulnerable people (2011) 3

388

L Cotula & J Mayers „Tenure in REDD start-point or afterthought?‟ (2009) IIED 9

389

C Streck & R O‟Sullivan 'Legal tools for the ENCOFOR Programme‟ (2007); UN-REDD „Legal and institutional foundations for the national implementation of REDD: Lessons from early experience in developing and developed countries‟ (2009)

390

Peskett & Brodnig (n 387 above)2; D Takacs Forest carbon: Law and property rights (2009)

391

Peskett & Brodnig (n 387 above) 3

392

Peskett & Brodnig (n 387 above) 6

393

SEPC Version 3 (n 316 above) 5

394

SEPC Version 3 (n 316 above) principle 3 deals with the promotion and enhancement of forests‟ contribution to sustainable livelihoods

395

SEPC Version 3 (n 316 above) 5

200

including collective rights, in conjunction with other suites of indigenous peoples‟ rights enshrined in international instruments. According to the UN-REDD FPIC, a key consideration in determining whether FPIC is required for a project, is whether the benefits are derived from the lands and territories, and resources of indigenous peoples and forest-dependent communities.

396

In the case of carbon rights which are potential source of benefit to investors, it means FPIC is required for the purpose of consensus among all stakeholders on the benefit-sharing of indigenous peoples.

iv. Grievance mechanism and access to remedies

For the purpose of resolving grievances that may result from the formulation and implementation of a REDD+ project, the instruments under the UN-REDD National Programme recommend that a grievance mechanism is a prerequisite. The SPRAT highlights the importance of grievance mechanisms through its explanation of certain criteria key to ensure good governance. For instance, it specifies that participation of parties cannot be regarded as effective unless the programme accommodates „an impartial grievance mechanism for all stakeholders‟.

397

Also, as highlighted under criterion 4 dealing with principle 2 of the SPRAT, resettlement is involved, or an issue of traditional knowledge arises, a mechanism should be able to receive and resolve such grievances.

398

More importantly, according to SPRAT, a mechanism should be put in place for the effective resolution of disputes relating to the distribution of benefits.

399

According to SEPC, a means of ensuring good governance of REDD+ activities is by establishing „responsive national feedback, complaints and grievance mechanisms‟.

400

The Joint

Stakeholders Guidelines require an impartial, accessible and fair mechanism for grievance, conflict resolution and redress as a necessary component of the consultation process and all through the phases of implementing REDD+ policies, measures and activities.

401

National programmes, the Joint Stakeholders Guidelines affirm, should establish grievance mechanisms and, for this purpose they must embark on certain activities

402

which include an assessment of

396

UN-REDD FPIC (n 334 above) 27

397

SPRAT (n 308 above)

398

As above

399

As above

400

SEPC Version 3 (n 316 above) 4

401

Stakeholders‟ Guidelines (n 325 above)

402

As above

201

existing formal or informal grievance mechanisms for the purposes of effecting appropriate modification and ensuring an „accessible, transparent, fair, affordable, and effective‟ mechanism able to respond to the challenges in REDD+ implementation.

403

No doubt, considering that its focus is not on conventional modes of dispute resolution, such as the court system, a well- conducted assessment as prescribed should produce a grievance mechanism that accommodates the dispute- settlement approach and institutions of indigenous peoples on issues such as land use and tenure.

The UN-REDD FPIC points out that a grievance mechanism at the national level in the context of REDD+ is critical to ensuring the effective resolution of grievances and disputes.

404

Such a mechanism should be open to receiving and fast tracking the resolution of requests and complaints from affected communities or stakeholders, such as indigenous peoples, in relation to

REDD+ activities, policies or programmes at the local or national level.

405

In terms of design, such a mechanism should be flexible enough to accommodate different options on problem- solving, including fact finding, dialogue, facilitation or mediation. In addition, it should respond to citizen concerns, pre-empt problems and foster confidence in and accountability from all stakeholders.

406

In the context of REDD+, it should be timely and available to all participating stakeholders „at no cost‟ and without hindering resort to other administrative or lawful remedies.

407

By including options, from the menu of dispute settlement, such as dialogue, facilitation or mediation, the UN-REDD instruments certainly do not exclude the consensual manner of dispute resolution, a preferred mode of grievance resolution among indigenous peoples. The practice accords with the UNDRIP which recognises the right of indigenous peoples to decisions through a „just and fair procedures for the resolution of conflicts‟ in line with their customs and traditions.

408

In view of the foregoing, the conclusion can be drawn that there is emerging evidence that the international climate regulatory framework relating to adaptation and mitigation as responses to the adverse impacts of climate change accommodates indigenous peoples‟ issues in relation to

403

Stakeholders‟ Guidelines (n 325 above)14

404

Stakeholders‟ Guidelines (n 325 above) 34

405

As above

406

As above

407

As above

408

UNDRIP, art 40

202

their land use and tenure. However, as shall be shown in the ensuing section, there are certain notions, particularly under the framework, which can potentially limit the consideration afforded indigenous peoples‟ and legitimise the subordination of their land tenure and use at the national level.

4.4 Subordinating notions in the international climate regulatory framework

The emerging international climate change regulatory framework reflects certain notions which may legitimise states‟ inadequate formulation of the domestic regulatory framework in addresing the adverse impacts of climate change on indigenous peoples‟ land tenure and use. The key notions are „sovereignty‟, „country-driven‟, and „national legislation‟. Arguably, these notions limit the importance of an emerging development in the international climate change regulatory framework in addressing the adverse impacts of climate change on indigenous peoples‟ land use and tenure at the domestic level.

4.4.1 Notion of ‘sovereignty’

The concept of „sovereignty‟ is the keystone of international law.

409

There are various ways in which the concept has been discussed.

410

The traditional concept of international law considers sovereignty as a status in which each state is co-equal and has final authority within the limits of its territory.

411

This meaning of sovereignty under international law aptly reflects the definition by Max Huber in Island of Palmas case (Netherlands v USA).

412

In that matter, Hubber notes:

Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.

413

409

RC Gardner „Respecting sovereignty‟ (2011) 8 Fordham Environmental Law Review 133; for a historical analysis of the concept see FH Hinsley National sovereignty and international law 2nd ed (1986) 158-235

410

Four ways in which the term is used are „domestic sovereignty‟ to refer to political authority and the level of control enjoyed by a state; „interdependence sovereignty‟ dealing with the ability of a state to control movements across its border; „international legal sovereignty‟ which treats the state as a subject of international law in the same way that an individual is considered as a citizen at national level ; „Westphalian sovereignty‟ which construes the concept in two terms, namely, territorially and the exclusion of external actors from domestic structures of authority, see SD Krasner Sovereignty: Organised hypocrisy (1999) 73-

90

411

J Dugard International law: A South African perspective (4th ed 2012) 125; on the notion of co-equality, see however, A

Cassese International law in a divided World (1986) 129, who contends that it is not valid to maintain that the United Nations is based on the full equality of its members, considering that art 27(3) of its Charter grants the right of veto to the permanent members of the Security Council only. Hence, at best, the principle of equality laid down in art 2(1) can only be interpreted as merely a general guideline, which is weakened by the exceptions particularly laid down in law

412

Island of Palmas case (Netherlands, USA) 4 April 1928 vol II 829-871 (Island of Palmas case)

413

Island of Palmas case (n 412 above) 838

203

Sharing the above position, in Corfu Channel (UK v Albania),

414

Alvarez J considered sovereignty as „the whole body of rights and attributes which a state possesses in its territory, to the exclusion of all other states, and also its relations with other states‟.

415

As Casssese argues, one of the sweeping powers and rights of sovereignty includes the power to assume authority over the populations in a given territory and the power to freely use and dispose of the territory under the state‟s jurisdiction and to do all activities considered essential for the benefit of the population.

416

The concept of „sovereignty‟ has always been a major statement of defence in a world system largely considered by some as unequal. According to Keck and Sikkink, although the claims by third world leaders to sovereignty are viewed as the self-interested argument of authoritarian leaders, states‟ attachment to the concept is not without basis:

The doctrines of sovereignty and non-intervention remain the main line of defence against foreign efforts to limit domestic and international choices that this world affairs (and their citizens) can make. Selfdetermination, because it has so rarely been practised in a satisfactory manner, remains a desired, if fading, utopia. Sovereignty over resources, as fundamental part of the discussions about a new international economic order, appears particularly to be threatened by international action on the environment. Even where third world activists may oppose the policies of their own governments, they have no reason to believe that international actors would do better, and considerable reason to suspect the contrary. In developing countries, it is much the idea of the state, and it is the state itself, that warrants loyalty.

417

When sovereignty is applied in the context of the environment, it means that one state may not prescribe to another how the latter must regulate its activities, such as pollution or exploration of natural resources, in its jurisdiction.

418

This viewpoint is contentious as some scholars have shown that rigid adherence to such a conception of sovereignty may operate as an obstacle to the effective international response to environmental threats. The tension is not new in view of the provision of principle 21 of the 1972 Stockholm Declaration. According to the principle:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the

414

Corfu Channel (UK v Albania) 1949 ICJ 39, 43 (Corfu Channel case)

415

As above

416

Cassese (n 411 above) 49-52

417

ME Keck & K Sikkink Activists beyond borders: Advocacy networks in international politics (1998) 215

418

Gardner (n 409 above) 133-134

204

responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

419

The UNFCCC similarly reiterates the sovereign right of the State to exploit its own resources in line with its own environmental and developmental policies. It, however, notes that states do have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to other states or states beyond their national jurisdiction.

420

Hence, while it is certain that the traditional notion of sovereignty remains crucial in international law, it is increasingly being challenged by the emphasis on interdependency or co-operation within the international community to address global environmental challenges such as climate change, transboundary pollution, the effects of which transcend national boundaries.

421

On this trend, Bowman observes:

It has become common to observe that the natural environment knows no political boundaries and that the traditional regime of resource exploitation, grounded in the notion of territorial sovereignty requires to be replaced by more overtly collective approaches.

422

Against this backdrop and in the interest of protecting varied elements of the environment, academia explores principles, such as precautionary measures,

423

„trusteeship‟,

„guardianship‟,„custodianship‟ and „stewardship‟, all of which operate as limitation measures on the traditional notion of sovereignty.

424

Notwithstanding the above trend in international environmental law, key decisions and safeguards resulting from international climate change negotiation, particularly on the implementation of REDD+, appear to stress the traditional notion of sovereignty.

419

Gardner (n 409 above) 133

420

UNFCCC, preamble

421

Gardner (n 409 above) 134

422

M Bowman „The nature, development and philosophical foundations of the biodiversity concept in international law‟ in M

Bowman & C Redgwell C (eds) International law and the conservation of biological diversity (1996) 12; also see FX Perrez

„Cooperative sovereignty: From independence to interdependency in the structure of international environmental law‟ (2000) 135 where the author argues that since in contemporary time, economic, social and ecological problems hardly conform to artificial boundaries, the earth should be viewed in an interdependent sense of a global system

423

M Haritz „Liability with and liability from the precautionary principle in climate change cases‟ in M Faure & M Peeters (eds)

Climate change liability (2011) 15-32; D Freestone & E Hey „Origins and development of the precautionary principle‟ in D

Freestone & E Hey (eds) The precautionary principle and international law: The challenges of implementation (1996) 3; see also

Rio Declaration, principle 15

424

PH Sand „Sovereignty bounded: Public trusteeship for common pool resources‟ (2004) 4 Global Environmental Politics 63

205

At least starting from the 26th session of the SBSTA, it has been signaled that the notion of

„sovereignty‟ will be critical to the negotiation of REDD+. In the Submission made by the

UNFF, for instance,

425

it is indicated that the approach of states regarding topical issues such as land tenure law, rights of indigenous and local communities to the sustainable management of forests, will take into account the sovereign right of each country and its legal framework.

426

At the 27 th

session of the SBSTA in 2007, parties, particularly from developing countries left nothing in doubt that they hold the notion of sovereignty strongly. Tuvalu, for instance noted that the establishment of a new international regime to transfer the emissions entitlements in REDD activities may compromise a nation‟s sovereign right over their land in that it involves a transfer of carbon rights in standing trees to another.

427

At the 28th session of the SBSTA, the joint submission made by parties, particularly from countries including African states, namely, Cameroon, Central African Republic, the Democratic

Republic of Congo Equatorial Guinea, Kenya, Lesotho, Madagascar, Gabon, Ghana, Liberia and

Uganda, emphasised their sovereign right to the exploration and use of their natural resources in accordance with their environmental and developmental policies for present and future generations.

428

The parties maintained that REDD+ activities should remain voluntary and that

„[p]arties alone will determine how best to implement specific measure toward these objectives‟.

429

This understanding of the process for REDD+ as voluntary together with the discretion of state to determine the direction of implementation, arguably explains the basis for including the concept of „sovereignty‟ in subsequent decisions and safeguards for REDD+ implementation.

425

UNFCCC SBSTA „Paper no. 6: United Nations Forum on Forests‟ 26th session Bonn, 7-18 May 2007, Item 5 of the provisional agenda , Views on the range of topics and other relevant information relating to reducing emissions from deforestation in developing countries, Submissions from intergovernmental organisations, FCCC/SBSTA/2007/MISC.3 (UNFF paper)

426

UNFF paper (n 425 above) 46-47

427

UNFCCC SBSTA „Submission from Tuvalu‟ 27th session Bali, 3-11 December 2007, Item 5 of the provisional agenda,

Views on issues related to further steps under the Convention related to reducing emissions from deforestation in developing countries: approaches to stimulate action

428

Other states are Belize, Bolivia, Costa Rica, Dominican Republic, Guatemala, Guyana, Honduras, Panama, Papua New

Guinea, Singapore, Solomon Islands, Thailand,Vanua, see „Submission from Belize, Bolivia, Cameroon, Central African

Republic, Congo, Costa Rica, Democratic Republic of the Congo, Dominican Republic, Equatorial guinea, Gabon, Ghana,

Guatemala, Guyana, Honduras, Kenya, Lesotho, Liberia, Madagascar, Panama, Papua New Guinea, Singapore, Solomon Islands,

Thailand, Uganda and Vanuatu‟, see UNFCCC SBSTA 28th session Bonn, 4-13 June 2008, FCCC/SBSTA/2008/MISC.4/Add.1

(Cameroon Joint Submission)

429

Cameroon Joint Submission (n 428 above) 3

206

The possibility that the issue of „sovereignty‟ is controversial and can shape the approach of states in relation to indigenous peoples is evidenced in the response of parties and accredited observers to the invitation extended by the SBSTA at its 29th meeting.

430

This invitation sought their views on issues relating to indigenous peoples and local communities for the development and application of methodologies for REDD+.

431

Despite their active participation in previous

SBSTA meetings, no submission was made by any state in Africa on this important issue. There may be other reasons responsible for this development, it may not be unconnected to the question of „sovereignty‟ which the African states have alleged will be compromised if the phrase,

„indigenous peoples‟ is used and rights, such as self-determination as well as land and resource rights, are guaranteed to these populations on the continent.

432

Hence, the argument can be made that non-participation of states from Africa in the discussion may be a reflection of the age-old reluctance to accept the legal application of the word „indigenous peoples‟ in their legal framework.

The Czech Republic on behalf of the European Community and its member states, Ecuador,

Guatemala, Panama, Costa Rica, Bolivia and Tuvalu lodged submissions to the SBSTA secretariat by 15 February 2009. In these submissions, it was argued that states reserve to themselves a large measure of discretion on certain issues pertaining to indigenous peoples.

433

For instance, although some of the parties emphasised that indigenous peoples and local communities can be efficiently engaged in REDD monitoring and in the measurement of the carbon stocks of trees,

434

others generally prefer the principle of „consultation‟, instead of

„consent‟in dealing with climate- related actions affecting indigenous peoples.

435

430

UNFCCC SBSTA „Report of the Subsidiary Body for Scientific and Technological Advice on its 29th session‟ held in Poznan from 1-10 December 2008, FCCC/SBSTA/2008/13 17 February 2009, para 45

431

As above

432

Advisory Opinion of the African Commission on Human and Peoples‟ Rights on the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the African Commission on Human and Peoples‟ Rights at its 41st ordinary session held in

May 2007 in Accra, Ghana (Advisory Opinion) paras 9-13

433

UNFCCC SBSTA „Reducing emissions from deforestation in developing countries: approaches to stimulate action, Issues relating to indigenous people and local communities for the development and application of methodologies‟, 13th session Bonn,

10 June 2009, Item 5 of the provisional agenda, FCCC/SBSTA/2009/MISC.1

434

UNFCCC SBSTA „Paper No. 1: Czech Republic on behalf of the European Community and its member states‟, submission supported by Bosnia and Herzegovina, Croatia, Montenegro, FCCC/SBSTA/2009/MISC.1 3, 4 (Czech Submission); UNFCCC

SBSTA „Paper No. 4‟, Panama Submission FCCC/SBSTA/2009/MISC.1 9 (Panama Submission)

435

UNFCCC SBSTA „Paper No. 2: Ecuador‟ FCCC/SBSTA/2009/MISC.1 5; Czech Submission (n 434 above) 4; Panama

Submission (n 434 above) 9

207

These arguments are in despite of the submissions of NGOs which were instructive in rendering some critical comments on the potential of states to undermine indigenous peoples‟ interest. In driving home this point, NGOs are critical of the use of the term „consultation‟ and not „consent‟, in the submission made by state parties. In their view, free, prior and informed consent in respect of REDD policies and the need for projects to avoid the displacement of indigenous peoples and local communities from their lands and territories are critical to the effective implementation of

REDD+ at the national level.

436

Even in the discussions clearly invited on the inclusion of indigenous peoples in REDD+ activities, the states have not hesitated to assert a sweeping sovereign right on certain issues dealing with indigenous peoples.

The evidence that sovereignty is central to the implementation of REDD+ activities can be found elsewhere. Paragraph 1(e) of Appendix 1 to the Cancun Agreements provides that all the activities involved in REDD+ should respect „sovereignty‟.

437

Also, in the decision reached concerning the systems for providing information on the safeguards for REDD+ provided under paragraph 1 of Appendix 1 to the Cancun Agreements, the COP17 noted that such systems should be consistent with national sovereignty, legislation and circumstances.

438

Further reinforcing the „sovereignty‟ requirement, the decision emphasises the need to take into account the „national circumstances and respective capabilities‟ as well as „national sovereignty and legislation, and relevant international obligations and agreements‟.

439

It can be argued that the reference to „relevant international obligations and agreements‟ signifies that the application of international standards is intended, yet, the provision is not clear on which should trump the other if there is incompatibility between national legislation and international obligations.

There is evidence of the possibility that international obligations will apply only in so far as they are compatible with national legislation in the subsequent discussions at the 15th session of the

Ad-hoc Working Group on Long-term Cooperative Action under the Convention in 2012 which

436

„Submission of the Climate Action Network International‟ 15 February 2009 http://unfccc.int/resource/docs/2009/smsn/ngo/098.pdf (accessed 18 October 2013) (Climate Action Submission); „Submission to the United Nations Framework Convention on Climate Change regarding, views on issues relating to Indigenous Peoples and local communities for the development and application of methodologies for Reducing Emissions from Deforestation and Forest

Degradation in Developing Countries by The Nature Conservancy‟ http://unfccc.int/resource/docs/2009/smsn/ngo/099.pdf

(accessed 18 October 2013) (Nature Conservancy Submission); „FPP submission to UNFCCC SBSTA‟, February 2009 http://unfccc.int/resource/docs/2009/smsn/ngo/104.pdf (accessed 18 October 2013) (FPP Submission)

437

Decision 1/CP.16 (n 72 above)

438

Decision 12/CP.17 (n 280 above) preamble

439

Decision 12/CP.17 (n 280 above) 2

208

was convened to discuss the idea of creating a REDD+ Market mechanism. At that forum, nations belonging to the COMIFAC, that is Burundi, Cameroon, the Central African Republic,

Chad, Congo, the DRC, Equatorial Guinea, Gabon, Rwanda, Sao Tome and Principe emphasised that to fully respect the notion of „sovereignty‟, parties involved in REDD+ activities should have the discretion to decide the approach they deem most appropriate. In any event, the financing option for REDD+ must fulfil urgent adaptation and mitigation needs and comply with their national economic development programmes.

440

Hence, it is not surprising that the RPP

Template incorporates safeguard principles as listed under Appendix 1 to the Cancun

Agreements which include respect for sovereignty and national legislation, confirming their centrality to the implementation of REDD+ activities.

441

Indeed, the fact that nations place sovereignty above the climate change mitigation safeguards may well have informed the provision that compliance with the decision of the COP requesting state parties to describe activities on safeguards is voluntary.

442

An argument can be made that the notion of „sovereignty‟ not necessarily poses a problem as it implies „responsibility to protect‟ human populations under international law. This argument may appear justified as scholarship has demonstrated the shift from the notion of „unconditional‟ sovereignty to „responsible sovereignty‟. In this regard, Falk demonstrates, as the challenges of post-colonial Africa are different, that sovereignty should be erased from the minds of its political consciousness. Rather, political consciousness in the region should embrace the doctrine of sovereignty which follows the reasoning in the American and French revolution where sovereignty is associated with the rights of the citizens.

443

More aptly, Falk notes:

444

Government legitimacy that validates the exercise of sovereignty involves adherence to minimum humanitarian norms and a capacity to act effectively to protect citizens from acute threats to their security and well-being that derive from adverse conditions within a country

440

UNFCCC AWGLCA „Submission from Burundi, Cameroon, Central African Republic, Chad, Congo, Democratic Republic of the Congo, Equatorial Guinea, Gabon, Rwanda, Sao Tome and Principe‟ 15th session Bonn, 15-24 May 2012,

FCCC/AWGLCA/2012/MISC.3/Add.2

441

R-PP Template Version 6 Working Draft‟ April 4, 2012 which replaces Version 5 of December 22

442

Decision 12/CP. 19 (n 285 above) para 5

443

R Falk „Sovereignty and human dignity: The search for reconciliation‟ in FM Deng and T Lyons African reckoning: A quest

for good governance (1998)

444

Falk (n 443 above) 14

209

However, this is not the case in most states in Africa in relation to indigenous peoples where basic instruments that specifically aim to safeguard their land rights are still not ratified. For instance, only one African state has ratified the ILO Convention 169.

445

Also, although the initial hesitance of African states was overcome, of the 13 African members of the Human Rights

Council, only four voted in favour of its adoption.

446

When the final version of the Declaration was adopted on 13 September 2007, three African states, Burundi, Kenya and Nigeria abstained.

447

It is encouraging that a number of African states supported its adoption,

448

but this is not translated into any significant change in terms of recognition of rights in the legal framework at the domestic level.

449

In all, it can be summed up that the foregoing discussion reflects the possibility that the notion of

„sovereignty‟ has the potential to inform a domestic climate change regulatory regime which essentially does not include normative content that recognises the protection of indigenous peoples‟ land use and tenure. It further signifies, in the context of climate change, that a state may justifiably hide under the concept of sovereignty to do as it wishes, including the exclusion of specific instruments dealing with indigenous peoples.

4.4.2 Notion of ‘country-driven’

Related to the notion of „sovereignty‟ is the concept of „country-driven‟ which implies state ownership of implementation process and attracts significant mention in the climate change regulatory framework on adaptation and mitigation. The notion is perhaps justified considering when decisions are taken at that level, that at least, there is the presumption that it is taken for the purpose of implementation on behalf of the entire population, which include indigenous peoples. In relation to adaptation, state ownership of the concept is discernible from the documentation process for adaptation. Article 4(1)(b) of the UNFCCC enjoins all parties to

„formulate, implement, publish and regularly update national programmes on adequate adaptation and mitigation to climate change‟. Also, article 4(1)(e) requires parties to the

445

Only Central African Republic has ratified ILO Convention 169. It did so on 30 August 2010, see http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312314 (accessed 14 September

2014)

446

F Viljoen International human rights law in Africa (2012) 230

447

As above

448

As above

449

Chapter 5 is particularly devoted to evidence of gap in the national climate change regulatory framework in relation to indigenous peoples‟ lands

210

UNFCCC to cooperate „in preparing for adaptation to the impacts of climate change‟ as well as plans for „coastal zone management, water resources and agriculture, and for the protection and rehabilitation of areas, particularly affected by drought and desertification, as well as floods‟ in

Africa. Under the Kyoto Protocol it is similarly evident that the national level has the directing policy role to play in documenting and implementing adaptation and mitigation measures.

Article 10(b)(ii) of the Kyoto Protocol enjoins parties to „include in their national communications as appropriate, information on programmes which contain measures‟ that may be helpful in addressing climate change and its adverse impacts.

In the decisions of the COP, or as the CMP under the Kyoto Protocol, there is heavy focus on the state government for the facilitation of adaptation process. This began to feature prominently from the COP 7 held in 2001, which acknowledged the specific needs and concerns of developing country, including Least Developing Countries (LDC), and emphasised the unique role of states in addressing adaptation issues. It insisted that adaptation actions should follow a review process based on national communications and/or other relevant information.

450

It was equally stressed that support be given to the states in the preparation of NAPA.

451

Non-Annex I parties are urged to provide information in national communications and/or other relevant reports on concerns which may ensue from implementing response measures.

452

Guidelines were formulated for the preparation of National Adaptation Plan of Actions (NAPA Guidelines).

453

The NAPA Guidelines, in paragraphs 6(a) and (c), affirm that the programme will be „actionoriented and country driven‟ and that NAPA will set out „clear priorities for urgent and immediate adaptation activities in relation to the countries‟. Paragraph 7(f) of the NAPA

Guidelines reiterates that it is „a country driven approach‟. In paragraph 7(a), it is pointed out that NAPA is „a participatory process involving stakeholders, particularly local communities‟ while paragraph 7(j) declares that the process will ensure „flexibility of procedures based on individual country circumstances‟.

450

UNFCCC CP „Implementation of Article 4, paragraphs 8 and 9, of the Convention (decision 3/CP.3 and Article 2, paragraph

3, and Article 3, paragraph 14, of the Kyoto Protocol)‟ FCCC/CP/2001/13/Add.1 (Decision 5/CP.7/2001) 2

451

Decision 5/CP.7/2001 (n 450 above) para 15

452

Decision 5/CP.7/2001 (n 450 above) para 20

453

UNFCCC CP „Guidelines for the preparation of national adaptation programmes of action‟ FCCC/CP/2001/13/Add.4

(Decision 28/CP.7/2001)

211

The COP 7 largely lays the ground which signifies that adaptation should be country driven and that policy measures at the national level are required in attending to adaptation needs.

Subsequent COP meetings, namely COP 8,

454

and COP 9

455

respectively, endorsed the NAPA

Guidelines. At the COP 10,

456

it was decided that actions in relation to adaptation and mitigation should reflect the needs and information indicated in national communications, thus tacitly highlighting the role of national communication on adaptation issues. The developing countries both in the LDC and non-LDC are enjoined to file a national communication to document their adaptive concerns and need for funds. The basis for this is article 12, paragraphs 1 and 4 of the

UNFCCC. The combined reading of these paragraphs enjoins parties to the Convention to communicate to the COP measures being taken in response to climate change.

These views were taken forward at COP 12 in Nairobi, where adaptation, a major Africa concern, featured prominently. Significantly, there is an indication that activities to be funded under climate funds may consider national communications or national adaptation programmes of action, and other relevant information from the applicant state party.

457

At COP 13 held in

Bali, an „enhanced action on adaptation‟ was conceived as consisting of elements, including international co-operation, in order to support developing states in their vulnerability assessment and integration of actions into „national planning, specific projects and programmes‟.

458

This angle to the formulation of adaptation actions was projected at the Cancun meeting of COP 16 which emphasised country driven „enhanced action on adaptation‟ and invites parties to take actions in NAPA and national communications toward its achievement.

459

Athough originally conceived for Least Developed Countries, at COP 17 held in Durban, South Africa, developing states that are not included as LDCs were encouraged to engage with NAPA. Such countries can use the guidelines for the national adaptation plans for LDCs in documenting their special circumstances in relation to adaptation.

460

At the same meeting, the LDCs were urged to provide

454

UNFCCC CP „Review of the guidelines for the preparation of national adaptation programmes of action‟

FCCC/CP/2002/7/Add.1 (Decision 9/CP.8/2002:1)

455

UNFCCC CP „Review of the guidelines for the preparation of national adaptation programmes of action‟

FCCC/CP/2003/6/Add.1 (Decision 8/CP.9/ 2003:1)

456

UNFCCC CP „Buenos Aires programme of work on adaptation and response measures‟ FCCC/CP/2004/10/Add.1 (Decision

1/CP.10/2004) 4

457

UNFCCC CP „Further guidance to an entity entrusted with the operation of the financial mechanism of the Convention, for the operation of the Special Climate Change Fund‟ FCCC/CP/2006/5/Add.1 (Decision 1/CP.12/ 2006)

458

UNFCCC CP „Bali Action Plan‟ FCCC/CP/2007/6/Add.1 (Decision 1/CP.13/2007)

459

Decision 1/CP.16 (n 72 above)11-14

460

UNFCCC CP „National adaptation plan‟ FCCC/CP/2011/9/Add.1 (Decision 5/CP.17/2011) 28-29

212

in their national communications and other channels the steps they have taken in actualising

NAPA.

461

An emphasis on the notion of „country driven‟ is discernible from the international climate change regulatory regime relating to REDD+ as a mitigation measure. Paragraph 1 of Appendix

1 (c) to the Cancun Agreements provides that the activities of REDD+ should follow a „country driven‟ approach and consider „options available to parties‟. Although stakeholders‟ participation in the REDD+ process is key, this is generally intended to take place within „country-specific interpretation of safeguards for REDD+ and in the development of the elements of the safeguards system‟.

462

In a decision reached at COP 17, titled „Guidance on systems for providing information on how safeguards are addressed and respected and modalities relating to forest reference emission levels and forest reference levels as referred to in decision 1/CP.16‟, the COP agrees that the system for providing information on compliance with safeguards must be

„country driven and implemented at the national level‟.

463

The notion is further reinforced by the template of the UN-REDD and FCPF for the Readiness Preparation Proposal (R-PP) which is state-centred.

464

For instance, funding or support for REDD+ activities is commenced by the formulation of a Readiness Proposal Idea Note (R-PIN), through which a country expresses its interest in participating in the FCPF and presents early ideas for how it might organise itself to get ready for REDD+. If successful, the country is then asked to formulate a Readiness

Preparation Proposal (R-PP), with funding assistance subsequently made available to the country to carry out the activities laid out in the R-PP.

465

In all, in focusing on the state, the possibility exists that a country-specific interpretation of safeguards for REDD+ may fall below the standard of protection afforded to indigenous peoples, particularly in relation to their land. The implication of this for indigenous peoples is that they may be excluded from the REDD+ process and access to funding. It is difficult to imagine an effective engagement with peculiar issues relating to indigenous peoples‟ land tenure and use when the state is the only recognised host of the project under the REDD+ activities. For

461

Decision 5/CP.17/2011 (n 460 above) 33

462

As above

463

Decision 12/CP.17 (n 280 above)

464

Forest Carbon Partnership Facility (FCPF) and the United Nations Collaborative Programme on Reducing Emissions from

Deforestation and Forest Degradation in Developing Countries (UN-REDD) Readiness Preparation Proposal (R-PP) Version 6

Working Draft April 4, 2012

465

As above

213

indigenous peoples, who are often marginalised underpowered or not recognised at all by the states, it is uncertain that REDD+ activities will be as beneficial to them, if at all, as would be the case if they could directly formulate proposals and participate in the initiative.

4.4.3 Deference to ‘national legislation’

Also related to the notion of sovereignty is the trend in international climate change negotiation which generally places emphasis on national legislation without insistence on the need for such legislation to conform to an international framework on the implementation of programmes. This emphasis is more pronounced and can be illustrated in the regulatory framework emerging in relation to REDD+. An exception is a proposition found in the submission of Tuvalu in response to the invitation by SBSTA at its 29th session to seek the views of parties and accredited observers on issues relating to indigenous people and local communities for the development and application of methodologies for REDD+.

466

No African state made a submission in response to that call, but the submission made by Tuvalu on a model legal framework for REDD+ that safeguards indigenous peoples is most instructive. According to its submission, a legal framework for REDD+ should include the principles:

[A]cknowledge and recognise the rights enshrined in the UN Declaration on the Rights of Indigenous

Peoples; It should establish similar rights and provisions to those found within the UN Declaration on the

Rights of Indigenous Peoples so that all UNFCCC Parties are able to apply these rights concurrently whether or not they are signatories to this Declaration and require that all Parties undertaking REDD activities to establish legal systems to recognise and put into place these rights; A framework should be established whereby indigenous peoples from all UN regions are fully represented on any decision-making body associated with REDD; it should establish a legal basis whereby no REDD legal regime is able to displace indigenous peoples or local communities from their land or expropriate their right to the use of their land; it should establish appropriate prior informed consent decision-making processes at the national and subnational level to ensure that the rights of indigenous peoples and local communities are properly recognised

.

467

466

UNFCCC SBSTA „Report of the Subsidiary Body for Scientific and Technological Advice on its 29th session‟, held in

Poznan from 1 to 10 December 2008, FCCC/SBSTA/2008/13 17 February 2009, para 45

467

UNFCCC SBSTA „Paper No. 3 Tuvalu‟, 13th session Bonn, 10 June 2009 Item 5 of the provisional agenda, reducing emissions from deforestation in developing countries: Approaches to stimulate action, issues relating to indigenous people and local communities for the development and application of methodologies, FCCC/SBSTA/2009/MISC.1

214

In order to achieve the foregoing, Tuvalu suggested a national legislation framework that protects the rights of indigenous peoples and local communities.

468

At the same session, Mexico, however, affirmed:

We believe that indigenous peoples and local communities. rights, visions and experiences should be taken into account in the discussions of any topic regarding REDD. Furthermore, there should be enough flexibility in the discussion to allow for the consideration of parties. circumstances and legislation regarding consultation processes and property rights of these communities

.

469

The the position of the states from Africa on this matter is unknown, arguably, the foregoing viewpoints highlight the tension which has shaped discussion and negotiation of REDD+ at the international level. The consequence of this tension is a range of COP decisions and initiatives on safeguards stressing national legislation as a context for the implementation of REDD+.

Evidence is found in paragraph 2 of the Appendix 1 to the Cancun Agreements: although it requires respect for the knowledge and rights of indigenous peoples and local communities, it only urges parties to note that the United Nations General Assembly has adopted UNDRIP.

470

Mainly, in respecting the knowledge and rights of indigenous peoples and local communities, it calls on parties to take into account relevant international obligations along with national circumstances and laws.

471

Also, parties are required to ensure that actions taken in connection with REDD+ are consistent with objectives of their national forest programmes along with applicable international conventions and agreements.

472

Similarly, in its preamble to the COP 17 decision regarding the systems for providing information on the safeguards for REDD+ provided under paragraph 1 of the Appendix 1 to the

Cancun Agreements, states that such systems should be consistent with national legislation and circumstances.

473

Although in contrast with the provisions that follow, a preamble is not a source of law, however, it has a significant legal effect.

474

It is useful in identifying the purpose of a statute and serves as an important aid in construing unclear legislative language.

475

In Reference

468

As above

469

UNFCCC SBSTA „Paper no. 2: Mexico Submission‟ FCCC/SBSTA/2009/MISC.1 (Mexico Submission)

470

Mexico Submission (n 469 above) 2 (c )

471

As above

472

Mexico Submission (n 469 above) 2 (a)

473

Decision 12/CP.17 (n 280 above) preamble

474

Decision 12/CP.17 (n 280 above) 216

475

As above

215

re Remuneration of Judges, Chief Justice Lamer explained that „the preamble articulates the political theory which the Act embodies‟.

476

On this authority, it can be argued that in indicating in the preamble to this decision that reporting about REDD+ safeguards will be consistent with

„national legislation and circumstances‟, the instrument offers the necessary context in which the provisions following the preamble should be understood. Further reinforcing this position, the decision calling for the collection of information at the domestic level indicates, along with related international obligations and agreements, that there is the need to take into account the

„national circumstances and respective capabilities‟ as well as national legislation.

477

At the 36th SBSTA meeting, suggestions were made on the elements to describe when giving information on how safeguards are being addressed. It underscored the need for parties to provide information on national forest governance structures, taking into account national legislation and indicating the applicable and relevant administrative bodies, laws, policies, regulations, and law enforcement mechanisms, the nature of land tenure and/or land rights for

REDD+ activities, and arrangements on how to transfer the rights and incentives of carbon.

478

Similarly, at the 15th session of the Ad-hoc Working Group on Long Term Cooperative Action, in discussing the policy approaches and positive incentives on issues relating to REDD+ in developing countries, the joint submission made by nations including Cameroon, the Central

African Republic, Congo (Republic), Cote d‟Ivoire, the Democratic Republic of Congo, Gabon,

Ghana, Kenya, Sierra Leone, and Uganda is relevant. Although no reference specifically was made to national legislation, these parties stressed that implementing REDD+ should be voluntary bearing in mind the national circumstances of developed and developing countries.

479

At the same session China, holding brief for developing countries, affirmed that the application and distribution of REDD+ finance should respect the domestic laws, regulations, and relevant institutional arrangements in developing countries.

480

476

See Lamer CJ in Reference re Remuneration of Judges, para 95

477

Decision 12/CP.17 (n 280 above) 2

478

UNFCCC SBSTA „Submission from the United States of America: Potential additional guidance on-informing how all safeguards are being addressed and respected‟ 36th session Bonn, 14-25 May 2012, FCCC/SBSTA/2012/MISC.9 4

479

UNFCCC AWGLCA „Paper No. 1: Bangladesh, Cameroon, Central African Republic, Congo, Costa Rica, Côte d‟Ivoire,

Democratic Republic of the Congo, Dominican Republic, Fiji, Gabon, Ghana, Guyana, Honduras, Kenya, Pakistan, Panama,

Papua New Guinea, Sierra Leone, Solomon Islands, Suriname and Uganda‟ 15th session Bonn, 15-24 May 2012,

FCCC/AWGLCA/2012/MISC.3, para 10

480

UNFCCC AWGLCA „Paper No. 3: China‟s Submission on the Modalities and Procedures for Financing the Results-Based

REDD-plus Actions‟ FCCC/AWGLCA/2012/MISC.3, para 20

216

In all, the foregoing notions set the ground for the legitimacy of a domestic climate change regulatory regime that may undermine the protection of indigenous peoples‟ lands in the context of adverse climate change impacts. In states where the identity of indigenous peoples and the use of their territories are disputed, an international climate change regulatory framework that defers to national legislation is capable of being interpreted as indirectly endorsing approaches which do not recognise or respect the existence of indigenous peoples and their right to the use of land.

4.5 Conclusion

The land tenure and use by indigenous peoples is progressively featuring in the emerging international climate regulatory framework. It is particularly discernible in the normative arrangement under the framework and the structure of the institution under its aegis Through their representation and presentations, issues around indigenous peoples‟ land use and tenure can feature in the activities of the key institutions of the international climate change framework, namely, the Conference of Parties (COP), Meeting of the Parties (MOP/CMP), the

Intergovernmental Panel of Climate Change (IPCC), Subsidiary Body for Scientific and

Technological Advice (SBSTA), Subsidiary Body for Implementation, and Ad-hoc Working

Group on Long Term Cooperative Action Under the Convention, and Ad-hoc Working Group on

Further Commitment for Annex 1 Parties Under the Kyoto Protocol.

The protection of indigenous peoples‟ land use and tenure features in the emerging international climate regulatory framework on adaptation and mitigation. In relation to adaptation, there is evidence which shows that indigenous peoples‟ land use and tenure are subjects on the agenda of the regulatory framework of funds for adaptation, mainly the Adaptation Fund (AF), the Least

Developed Countries Fund (LDCF), the Special Climate Change Fund (SCCF), and Green

Climate Fund (GCF). This is the position under the Global Environment Facility which manages the funds under the LDCF and SCCF, the Adaptation Fund Board which manages the AF and the

GCF Board in charge of the GCF Board. Using the regulatory framework on REDD+ as an example,it has been also shown that in the context of the mitigation initiative, indigenous peoples‟ land tenure and use are an essential component of climate mitigation regulatory framework.

217

However, along with the developments within the international climate change regulatory framework, the recognition has emerged of the notions of „sovereignty‟, „country-driven‟ and

„national legislation‟. In granting states the space to implement measures according to their sovereignty, approach and domestic laws, without qualification, these notions provide the basis for a climate change regulatory regime which may not protect indigenous peoples‟ land tenure and use. In the next chapter, evidence is urged to the effect, in fact, that this is the reality as the domestic climate change regulatory framework does not adequately address indigenous peoples land tenure and use in Africa.

218

Chapter 5

National climate change regulatory frameworks in relation to indigenous peoples’ lands

5.1 Introduction

The previous chapter demonstrates that although there is an emerging focus on the protection of indigenous peoples‟ land tenure and use in the international climate change regulatory framework, it is limited. As it has been shown, there are notions which have emerged along with at that level that may legitimise at the national level a climate change regulatory regime that offers little or inadequate protection of indigenous peoples‟ land tenure and use. By way of illustration through examples of national climate change regulatory frameworks of selected states, this chapter demonstrates that, in fact, this is the reality in Africa. Evidence shows that the protection accorded indigenous peoples‟ lands under the national climate change framework is inadequate. This has negative implications for indigenous peoples‟ participation, carbon rights and benefit-sharing, as well their access to grievance mechanism and remedy.

After discussing the essence of the domestic application of a regulatory framework, this chapter examines the extent to which the domestic climate change regulatory framework in response to the adverse impacts of climate change protects indigenous peoples‟ land tenure and use in

Africa. In doing so, the argument is made that the domestic climate change regulatory framework is inadequate in its protection of indigenous peoples‟ land tenure and use. This development has negative implications for their participation, carbon rights and benefit-sharing, grievance mechanism and access to remedy. This is followed by a conclusion.

5.2 Significance of a domestic regulatory framework

National implementation is a critical element in ensuring compliance with international environmental policy or law.

1

In addition to playing a crucial role in ensuring that international policies translate into domestic actions and impact, it serves other purposes. It can concretise the

1

C Redgwell „National implementation‟ in D Bodansky, J Brunee & E Heys (eds)The oxford handbook on international

environmental law (2007) 922-946, 923

219

reform of institutions so as to enable stakeholders, including vulnerable groups, to take advantage of the strength of the global regulatory framework.

2

Also, with appropriate provisions, a national climate regulatory framework, for instance, can be used by parties as the basis for challenging government on the observance of safeguards dealing with the realisation and protection of rights where such are included in the framework. Redgwell makes the latter point clearly,

3

according to the author, it affords non-state actors the opportunity to effectively challenge „national implementation of international environmental law.‟

4

Equally, the national implementation of human rights principles is crucial to the realisation of international human rights norms. According to Viljoen, since states are the primary duty bearers and breachers of human rights obligations, it is at the national level that human rights is most meaningful.

5

Therefore, at that level, appropriate legislation, particularly in the form of constitutional rights protecting vulnerable groups, including indigenous peoples, is necessary.

6

In the viewpoint of Swepston & Alfreðsson, in order to realise the rights set forth for indigenous peoples under international instruments, particularly in relation to land, adequate legislation is inevitable at the national level.

7

However, the ensuing discussion shows, an analysis of selected states in Africa reveals a trend which lends credence to the position that national climate change regulatory frameworks do not adequately safeguard indigenous peoples‟ land tenure and use and related rights in Africa.

5.2.1 Trend in national frameworks: Case studies in Africa

For the purpose of demonstrating the situation at the national level as it affects indigenous peoples‟ land tenure and use, developments in Tanzania, Zambia and Nigeria in relation to their existing regulatory environment for adaptation and mitigation processes are considered. This is followed by an analysis of extent to which indigenous peoples‟ land tenure and use are addressed in the selected national frameworks.

2

As above

3

As above

4

As above

5

F Viljoen International human rights law in Africa (2012) 4, 21

6

Viljoen (n 5 above) 4

7

L Swepston & G Alfreðsson „The rights of indigenous peoples and the contribution by Erica Daes‟ in GS Alfreðsson &M

Stavropoulou (eds) Justice pending: Indigenous peoples and other good causes: Essays in honour of Erica-Irene Daes (2000)

74

220

5.2.1.1 The United Republic of Tanzania

The United Republic of Tanzania (Tanzania) is constituted by mainland Tanzania and Zanzibar.

It is a vast country with a total area of 945,087 Sq. km comprised land area of 883,749 sq. km

(881, 289 sq. km on the mainland and 2,460 sq. km of the island of Zanzibar), in addition to

59,050 sq. km of inland water.

8

According to the 2012 Population and Housing Census, the total population of Tanzania (mainland and Zanzibar) is 44,928,923.

9

It shares geographical borders with eight countries namely, Kenya and Uganda to the North, Rwanda, Burundi and the

Democratic Republic of Congo (DRC) in the West, Zambia and Malawi in the South West and

Mozambique in the South.

10

Mainland Tanzania borders the main water bodies of Africa. To the east is the Indian Ocean, to the north Lake Victoria, to the west Lake Tanganyika and to the south-west Lake Nyasa. Mainland Tanzania also has the highest mountain point in Africa. The snow-capped Mount Kilimanjaro is 5,950 metres high.

11

Tanzania is estimated to have a total of

125–130 ethnic groups, of which four groups have organised themselves and their struggles around the concept and movement of indigenous peoples. These groups are the hunter-gatherers

Akie and Hadzabe, and the pastoralist Barabaig and Maasai.

12

Tanzania ratified the United

Nations Framework Convention on Climate Change on 17 April 1996,

13

and became a party to the Kyoto Protocol on 26 August 2002.

14

Tanzania voted in support of the United Nations

Declaration on the Rights of Indigenous Peoples (UNDRIP).

15

The dominant sector of the Tanzania economy is agriculture, which provides livelihood, income and employment to over 80% of the population and accounted for 56% of Gross Domestic

Product (GDP) and about 60% of export earnings making a significant contribution to the

National GDP compared to other sectors.

16

It is an important economic sector in terms of food production, employment generation, production of raw materials for industries and generation of

8

United Republic of Tanzania „National Adaptation Programme of Action (NAPA)‟ (January 2007) 1 (Tanzania NAPA)

9

„Population and Housing Census Brief Results‟ http://www.nbs.go.tz/sensa/index.html (accessed 14 January 2014)

10

Tanzania NAPA (n 8 above)

11

As above

12

IWGIA „Tanzania‟ http://www.iwgia.org/regions/africa/tanzania (accessed 18 December 2013)

13

UNFCCC „Status of ratification to the Convention‟ http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php (accessed 16 November 2013)

14

Kyoto Protocol „Status of ratification‟ http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php (accessed 18

November 2013)

15

OHCHR „Declaration on the rights of indigenous peoples‟ http://www.ohchr.org/en/Issues/IPeoples/Pages/Declaration.aspx

(accessed 18 January 2014)

16

Tanzania NAPA (n 8 above)

221

foreign exchange.

17

Forecast on GDP cited at 6.8% has not been achievable due to severe drought which affected most parts of the country leading to acute food shortages, food insecurity and hunger.

18

It has been shown that while, according to predictions, climate change will bring about increase in rainfall in some parts of Tanzania and decrease in others, this variation will bring about increased vulnerability of communities, especially in sectors including agriculture, water, energy, health and forestry.

19

Although about 88.6 million hectares of land in Tanzania are suitable for agricultural production, including 60 million hectares of rangelands suitable for livestock grazing, climate change will alter the distribution and productivity of land.

20

Projected and actual vulnerability in the agricultural sectors include decrease in crop production as a result of unpredictable season, erosion of natural resource base and environmental degradation.

21

This will affect agricultural products such as maize, coffee and cotton. The impact of climate change on the agricultural sector will be more serious on rangelands which are crucial for livestock keeping communities.

22

Shrinkage of rangelands is also expected to aggravate conflicts between livestock keepers and farmers in many areas as livestock keepers herd towards other parts of the country for pasture.

23

Climate change will adversely affect several river basins such as those situated at Rufiji,

Pangani, Ruvu, Great Ruaha, Malagarasi, Kagera, Mara, Ruvuma, and Ugalla which are of economic importance to daily livelihood of the local communities.

24

For instance, due to decreasing rainfall, the annual flow of river Pangani and the hydropower which it sustains, will be negatively impacted.

25

Floods along these river basins, particularly along the Rufiji and

Pangani rivers, in addition to causing damage to major hydropower stations, may negatively affect the human settlements found along the river basins in the country.

26

17

As above

18

As above

19

Tanzania NAPA (n 8 above) 5

As above

20

Tanzania NAPA (n 8 above) 6

21

As above

22

Tanzania NAPA (n 8 above) 7

23

As above

24

As above

25

As above

26

As above

222

Climate change also has adverse effects on the coastal and marine environments of Tanzania which are remarkable for their wide variety of species of flora and fauna on which the peoples living in those areas rely for sustenance.

27

Considering its role in boosting tourism, coast and marine resources constitute an important aspect of the cultural sketch of Tanzania.

28

However, with the advent of climate change, the state of the coast and marine in Tanzania is changing.

Increase in temperature is expected to result into a rise in sea level which may ultimately cause the destruction of coastal resources and infrastructure.

29

This development, in turn, may lead to the deprivation of the local communities relying on such resources for sustenance.

30

Tanzania is unique for its wildlife which is one of the richest and most diversified in Africa.

Approximately 19 % of the country is protected as national parks or game and forest reserves.

31

Constituting the wildlife profile of Tanzania is a wide variety of species of primates, antelopes, fish, reptiles, amphibians, invertebrates and plants, several of which are endemic.

32

As a result of climate change, however, the impressive reservoir of wildlife and biological diversity is increasingly under threat.

33

Threats to wildlife are due to over-utilisation of resources and conflicts between agriculture and wildlife, persistent drought occasioning the migration and disappearance of some bird and animanl species.

34

The effect of this is more felt by local communities in Tanzania who regard and depend on wildlife as an important source of food and income.

35

Apart from its significance to local communities relying on it for survival, the wildlife of

Tanzania generates economic return from tourists who patronise it for its intrinsic beauty.

36

This explains the existence of no less than 12 national parks, 34 Game Reserves, and 38 Game

Controlled Areas in Tanzania. Other popular tourists sites include Mount Kilimanjaro,

Zanzibar‟s historic Stone Town, the Olduvai Gorge archaeological site and sand beaches.

37

Nevertheless, owing to climate change, some of these popular attractions including the ice cap of

27

Tanzania NAPA (n 8 above) 9

28

As above

29

As above

30

As above

31

Tanzania NAPA (n 8 above) 12

32

As above

33

As above

34

As above

35

As above

36

As above

37

As above

223

Mount Kilimanjaro are shrinking. In addition to affecting tourism, reduced ice cap means declining water flow at the feet of the mountain where the local communities live.

38

As a result of its forests, Tanzania is relevant in the global efforts on climate change mitigation.

The total forest area in Mainland Tanzania is 33.428 million hectares (ha) representing 38% of the total land area while in Zanzibar, forest vegetation covers about 63,908 ha.

39

Approximately,

57% of all of these forests are on village land or general land with open access while only 43% of the forested land is designated as forest reserves (FRs) and national parks (protected).

40

Forests are managed for production and/or protection based on forest management plans in

Tanzania with benefits ranging from ecosystem services to timber, and non-timber forest products (NTFP).

41

Ecosystem services for which the forests are useful include watershed functions, maintenance of soil fertility, and conservation of biodiversity, sustaining cultural values, removal of carbon dioxide from the atmosphere, improvement of climate condition, ecotourism and livestock keeping.

42

In particular the NTFP services consist of game meat, medicinal plants, fodder, beverages, dyes, fibres, gums, oils, bees wax and honey and others.

43

To the local and forest-dependent communities, several of these products serve subsistence purpose that provides valuable source of nutrition.

44

At the heart of trend in deforestation are human activities such as encroachment into reserved forests, shifting cultivation, wildfires, illegal logging, mining, overgrazing, wood-fuel extraction and the introduction of large-scale farming for bio-fuel production, among others. As Milledge et

al have found, unsustainable logging is a main cause for loss of forest resources in different parts of Tanzania.

45

In addition to contributing to an increasing level of carbon-dioxide,

38

Tanzania NAPA (n 8 above) 13

39

United Republic of Tanzania „National Strategy for Reduced Emissions from Deforestation and Forest Degradation

(REDD+)‟ (December 2010) 30 (Tanzania National Strategy 1st Draft)

40

Tanzania National Strategy 1st Draft (n 39 above) 28

41

Tanzania National Strategy 1st Draft (n 39 above) 68

42

As above

43

As above

44

As above

45

ND Burgess et al „Getting ready for REDD+ in Tanzania: A case study of progress and challenges‟(2010) 44 Fauna & Flora

International 339, 341; S Milledge, I Gelvas & A Ahrends „Forestry, governance and national development: Lessons learned from a logging boom in Southern Tanzania‟ (2007)

224

deforestation also signifies loss of forest, a vital asset that can help in removing carbon from the atmosphere.

46

In all, emerging variation of the climate has specific negative implications for the lifestyle of indigenous peoples in Tanzania. Declining resources connote an increasing possibility of conflicts between pastoralists and agriculturists. One of such conflicts, as has been reported, involved the Masungu Juu and Masungu Kati villages which are largely occupied by the pastoralists Maasai.

47

The incidence and intensity of drought and attendant limited access to natural resources, have also increased the vulnerability of indigenous peoples.

48

Particularly, the

Hadzabe and Akie, largely hunters and gatherers experience reduced availability of water, wild plants and fruits resulting into their movement in search of food.

49

Also, the situation of the pastoralist Maasai is worsened by increasing temperatures, changes in the timing and volume of rainfalls, and reduced mobility associated with climate change.

50

Further adverse impacts are expected along the line of the implementation of REDD+ and commercialisation of forest services which may exclude these populations.

51

5.2.1.2 Republic of Zambia

Republic of Zambia is a landlocked southern African country covering an area of 752, 614 sq. km.

52

Its boundaries are with Angola and Namibia in the west, the Democratic Republic of

Congo (DRC) in the north, Malawi in the east, Mozambique in the Southeast, Zimbabwe in the

South and Botswana in the southwest.

53

According to the 2010 Census of Population and

46

Tanzania NAPA (n 8 above) 9

47

GC Kajembe et al „The Kilosa District REDD+ pilot project, Tanzania: A socioeconomic baseline survey‟ (2013) International

Institute for Environment and Development (UK) 20

48

IWGIA „Country Technical Notes on Indigenous Peoples‟ Issues: The United Republic of Tanzania (2012) (IWGIA Report on

Tanzania) 15

49

The Guardian „Hunger Threatens Kiteto„s Akiye‟ February 26-March 3, 2012

50

IWGIA Report on Tanzania (n 48 above)15

51

E Laltaika „REDD+ Implementation and the rights of indigenous peoples in Tanzania‟ Presented at the University of Colorado at Boulder (CU Boulder) May 3rd, 2013 https://www.academia.edu/3476775/_REDD_Implementation_and_the_rights_of_indigenous_peoples_in_Tanzania_Presented_a t_the_University_of_Colorado_at_Boulder_CU_Boulder_May_3rd_2013 (accessed 20 June 2014)

52

Republic of Zambia National Adaptation Programme of Action on climate change (September 2007) (Zambia NAPA) 1;

Republic of Zambia Initial National Comunication under the United Nations Framework Convention on Climate Change

(August 2002) (Zambia Initial National Communication) iv

53

As above

225

Housing, the population of Zambia was 13,092,666.

54

Zambia is a multi-cultural and ethnic country consisting of groups such as the Bemba, Tonga, Lozi, Ngoni, Chewa, Kaonde and

Luvale.

55

The vegetation comprises forests and grasslands with majority of its forest plantations at the Copperbelt Province providing habitation for wildlife and their habitats outside the forest areas.

56

The main sectors of the Zambia economy are namely agriculture, forestry and fishing, mining and quarrying.

57

Zambia is a party to the UNFCCC which it acceded on 28 May 1993,

58 and the Kyoto Protocol which it ratified on 7 July 2006.

59

Zambia voted in support of

UNDRIP.

60

There are five river systems at the centre of Zambia potential for high hydroelectricity. These are namely, Zambezi, Kafue, Luapula and Chambeshi, while its major lakes include Tanganyika,

Bangweulu, Mweru and Kariba.

61

In addition to being in the tropics, Zambia is covered by rich vegetation consisting of open and closed forests and grasslands.

62

However, as a result of change in climate, seasonal droughts, occasional dry spells, intense rainfall, heat wave, high temperatures in valleys, floods, changes in growing season, delayed onset of rainy season and shortened growing period are being experienced.

63

The agricultural sector is a significant sector of Zambia‟s national life in that it is linked with food security and supply of raw materials for the manufacturing sector.

64

Approximately 50% of the population in Zambia depends directly on agriculture for their livelihood with focus on products such as millet, cassava, maize, tea, coffee, sugar cane and sun flower.

65

Also, the livestock and fishery agricultural sub-sector respectively contributes 23 and 55% of the supply of

54

„Zambia 2010 Census population and housing‟ http://www.zamstats.gov.zm/report/Census/2010/2010%20Summary%20Census%20Wall%20Chart%20-%20Zambia.pdf

(accessed 18 November 2013)

55

Discussion with Professor Michelo Hansungule, Expert Member, Working Group on Extractive Industries, Environment and

Human Rights Violations, on 4 August 2014; also seeWorld Directory of Minorities „Zambia Overview‟ http://www.minorityrights.org/?lid=3922&tmpl=printpage (accessed 10 November 2013) identifies the Mambwe, Tumbuka and

Lamba as minorities in Zambia

56

Zambia Initial National Communication (n 52 above) 2

57

Zambia Initial National Communication (n 52 above) 9

58

UNFCCC „Status of Ratification of the Convention‟ http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php (accessed 10 November 2013)

59

Kyoto Protocol „Status of ratification‟ http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php (accessed 18

November 2013)

60

n 15 above

61

Zambia Initial National Communication (n 52 above) iv

62

As above

63

Zambia NAPA (n 52 above)19

64

Zambia NAPA (n 52 above)11

65

As above

226

the protein in Zambia.

66

Nevertheless, climate change is affecting this sector to the extent of threatening food security.

67

Related predictions show that areas that are traditionally suitable for staple crops, such as maize production are likely to reduce by more than 80%.

68

Drought and floods are adversely affecting vulnerable communities who depend on rain-fed agriculture for their livelihoods.

69

Drought-induced crop failures may cause serious malnutrition in children, and in extreme cases, result into famine and loss of productive assets and lives.

70

Climate change has negative implications for health profile in Zambia. For instance, increased cases of malaria and indeed other major are associated with floods and increased temperature regimes. Incidence of malaria is increasing due to the incursion of malaria.

71

A reason for this is that malaria is a climate-sensitive disease, that is, an illness that is sensitive to weather or climatic factors. Malaria is regarded as the leading killer disease in Zambia.

72

The natural resources inclusive of wildlife and forestry sectors are vulnerable to adverse impacts of climate change in Zambia. As documented by the national adaptation plan of action (NAPA) of

Zambia,

73

the 1992 drought left in its wake the death of several hippopotamuses in South

Luangwa National Park and the migration of most animals from the Park.

74

Also, in 2005, it was reported that drier weather occasioned changes in condition of elephants.

75

Zambia has abundance of water since it holds much of the water in Southern African

Development Community (SADC).

76

Due to harsh climatic condition, however, it has experienced consistent droughts bringing about water scarcity in several parts of the country.

Excessive rainfall has disrupted communities living in the valley and towns with high water table such as Lusaka.

77

As a result of droughts, ground water resources are giving way to diminishing water tables as well as boreholes and rivers.

78

The potential in water sources such as Kariba

66

As above

67

As above

68

As above

69

Zambia NAPA (n 52 above) 37

70

Zambia NAPA (n 52 above) 3

71

Zambia NAPA (n 52 above) 62

72

Zambia NAPA (n 52 above) 9

73

As above

74

As above

75

As above

76

Zambia National Communication (n 52 above) 58; Zambia NAPA (n 52 above) 12

77

Zambia National Communication (n 52 above) 58

78

As above

227

dam, and Kafue gorge for energy generation is also under threat, due to increasing droughts traceable to climate change.

79

With an approximately 49,468,000 ha amounting to 67% of land surface covered by forests,

Zambia is one of the most forested countries in Africa.

80

The most common forest type is

Miombo woodland, covering 42% of the land area.

81

Generally forests play a significant role in the livelihoods of the vast majority of people living in the rural area. It serves as a means of subsistence, generating income and employment.

82

However, deforestation remains a challenge.

Estimated at a growing rate of approximately 1.5% per annum, Zambia is ranked as one of the countries with the highest rates of deforestation in the world.

83

While there is emerging evidence of it in the North-Western province, major corridors of deforestation cover four key provinces, namely Southern, Lusaka, Central and Copperbelt.

84

In 1996, for instance, the Food and

Agricultural Organisation (FAO), referring to the findings of Alajarvi,

85

reported that the annual average rate of deforestation in Zambia is around 250 000 ha per annum. Higher rate has been confirmed by subsequent findings of researchers, including Chidumayo, who reported a deforestation rate of 300 000 ha per annum, signifying that deforestation is scaling up.

86

Analysing the scenario in a more recent studies, Vinya et al predicted that, if not halted, the trend of deforestation in Zambia will dramatically increase, with Copperbelt being the worst affected province.

87

In addition, there are a number of socio-economic reasons for which forests are depleted in

Zambia. In both rural and urban areas, the forests serve as a source of fuelwood directly contributing to deforestation.

88

Also associated with deforestation are activities of socioeconomic benefits,

89

such as, investment in charcoal industry which accounts for no less than

79

Zambia NAPA (n 52 above) 10

80

R Vinya et al „Preliminary study on the drivers of deforestation and potential for REDD+ in Zambia‟ (2012) A consultancy report prepared for the Forestry Department and FAO under the national UN-REDD+ Programme Ministry of Lands & Natural

Resources. Lusaka, Zambia, 2-3 (Zambia Preliminary Study)

81

As above

82

Zambia Preliminary Study (n 80 above) 8

83

M Henry et al „Implementation of REDD+ in sub-Saharan Africa: state of knowledge, challenges and opportunities‟ (2011) 16

Environment & Development Economics 381

84

Zambia Preliminary Study (n 80 above) 8

85

P Alajarvi Forest management planning and inventory (1996) ZFAP, MENR. Lusaka, Zambia

86

EN Chidumayo Development of reference emission levels for Zambia (2012) Report prepared for FAO

87

Zambia Preliminary Study (n 80 above) 10

88

Zambia Preliminary Study (n 80 above) 21

89

Zambia Preliminary Study (n 80 above) 23

228

80% of Zambia energy source

90

and agricultural expansion.

91

In the Central, Copperbelt,

Northern and Western provinces, research findings have shown that agricultural expansion is the second most frequent driver of deforestation.

92

Similarly, the mining sector has greatly contributed to a declining forest cover.

93

Huge tract of lands are cleared as the need arises to make space for mining and its infrastructures.

94

It is estimated that at the Kalumbila Mining

Concession, infrastructure preparations will result in the loss of more than 7 000 ha of land before the concession becomes fully operational.

95

Similarly, demographic factor in form of growth in populations contributes to increasing degradation of the forests.

96

Adverse effects of climate change are visible in Zambia‟s indigenous forests which have played a key role in providing timber and non-timber products for communities around forest reserves and the nation at large.

97

Due to increase in temperature, climate change impacts have been reported as reducing the capacity of regeneration of forests such as the Miombo forests, signifying fewer natural resources for communities that rely on them for livelihoods.

98

In all, in addition to the general impacts of climate change, forest-dependent communities in

Zambia face peculiar challenges of climate change due to its effect on forests resources. The added challenge of increase in temperature due to climate change,

99

for instance, has implications for key communities. These include communities which have traditionally dependent on these resources, such as the Nkoya and Tonga communities noted for traditional conservative lifestyles and practices around reserves including the Mwekera Forest Reserve and

Katanino Joint Forest Reserve.

100

A similar trend is noticeable among the Lamba people, who have traditionally live in the Copperbelt Miombo woodlands.

101

In particular, there are threats to

90

T Kalinda et al Use of Integrated Land Use Assessment (ILUA) data for forestry and agricultural policy review and analysis in

Zambia (2008) 22

91

Zambia Preliminary Study (n 80 above) 23

92

Zambia Preliminary Study (n 80 above) 24

93

Zambia Preliminary Study (n 80 above) 25

94

As above

95

Zambia Preliminary Study (n 80 above) 26

96

FAO „Global Outlook Study For Africa. Sub-regional Report: Southern Africa‟ (2005) African Development Bank/European

Commission/FAO. Rome

97

Zambia NAPA (n 52 above) 10

98

Zambia NAPA (n 52 above) 51

99

Zambia Preliminary study (n 80 above) 18

100

FS Siangulube „Local vegetation use and traditional conservation practices in the Zambian rural community:

Implications on forest stability‟ (2007) A thesis submitted to the International Master Programme at the Swedish Biodiversity

Centre 1-10

101

FK Kalaba, CH Quinn & AJ Dougill „Contribution of forest provisioning ecosystem services to rural livelihoods in

Copperbelt‟s Miombo woodlands, Zambia‟ December, 2012 No. 41 6-7

229

the cultural and spiritual lifestyle of the Tonga of the southern Zambia, who have a long history of sustainable conservation through a worldview that forbids cutting down of trees.

102

5.2.1.3 Federal Republic of Nigeria

Nigeria is situated in the western part of Africa and has a total area of 923 800 sq km.

103

It is bordered respectively in the North, East, and West by Niger, the Cameroon, and Benin

Republic, the Gulf of Guinea, an arm of the Atlantic Ocean, forms the southern border of

Nigeria.

104

The main drainage systems in Nigeria are the Niger-Benue, Chad, and coastal rivers while the main sources of the rivers include the North-Central Plateau, Western Uplands, Eastern

Highlands, and the Udi Plateau.

105

According to the 2006 national census, Nigeria has a population of 140,431,790, making it the most populous nation in Africa.

106

Out of over 250 ethnic groups the most numerous are Yoruba, Igbo, and Hausa/Fulani, whose languages, according to article 55 of the 1999 Constitution are the official languages of the national assembly. Other groups include the Tiv, Ibibio, Ijaw, Edo, and Urhobo which have identified as indigenous peoples in Nigeria.

107

Nigeria ratified the UNFCCC on 29 August 1994,

108

and subsequently acceded to the Kyoto Protocol 10 December 2004.

109

Nigeria did not vote in support of the UNDRIP.

110

Nigeria is richly endowed with reserves of diverse natural and mineral resources including uranium, gypsum, marble, tin, bitumen, coal and iron. More importantly, it is the 6th largest oil producer in the world, the 1st largest in Africa and has gas reserves which is the seventh largest in the world.

111

While crude oil is the most important source of national revenue, about 60% of

102

M Kokwe Forest management practices with potential for REDD+ in Zambia (2012) 10

103

Federal Government of Nigeria „Nigeria‟s path to sustainable development through green economy: Country Report to the

Rio+20 Summit‟ June 2012 1.1; „Nigeria: Demographic and health survey' (2008)

http://www.population.gov.ng/images/Nigeria%20DHS%202008%20Final%20Report.pdf. (accessed 13 October 2013)

104

As above

105

As above

106

As above

107

ILO/ACHPR „Nigeria: constitutional, legislative and administrative provisions concerning indigenous peoples‟ (2009) 1-5

108

UNFCCC „Status of ratification of the Convention‟ http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php (accessed 16 November 2013)

109

Kyoto Protocol „Status of ratification‟ http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php (accessed 18

November 2013)

110

n 15 above

111

O Oluduro Oil exploitation and human rights violations in Nigeria's oil producing communities (2014) 29; Y Omorogbe „The legal framework for public participation in decision-making on mining and energy development in Nigeria: Giving voice to the voiceless‟ in D Zillman et al (eds) Human right in national resources development (2000) 557-558.

230

the labour force is still employed in agriculture.

112

Agriculture is the main source of food, industrial raw materials and foreign exchange with above 90% of agricultural production from rural-based, small-scale farmers.

113

In the northern part of the country, livestock production involves more than 12 million cattle, 24 million goats, and 8 million sheep while fisheries also offer windows of employment.

114

Effects of climate change are expected in this sector to lead to reduced livestock.

115

Similarly, it is predicted that rise in marine and freshwater temperature will impact adversely on fisheries.

116

Climate change has negative effects on different categories of water sources, including direct use, river flow, lake systems, man-made reservoirs, and groundwater resources.

117

Rainfall is significant in this considering that most of the coastal areas receiving rainfall throughout the year have more water than necessary, while, on the other hand, water needs generally exceed supplies from rainfall in the areas to the North.

118

The adverse impacts of climate change on energy sector, as documented, will include increased demand for electricity for heating, cooling and water pumping, declined availability of hydroelectricity and fuelwood, and extensive damage to petrochemical industrial installations presently concentrated in the coastal belt.

119

Climate change will lead to the vulnerability of industrial and mining sectors and location.

120

For instance, sea level increase may affect industries located around seaports thereby necessitating their relocation.

121

Damaging erosion, water logging, and submergence of routes are climate change outcomes with adverse consequences for transportation in different parts of Nigeria.

122

Considering that tourism is a weather sensitive activity focusing among others on natural reserves and traditional festivals, this sector will be adversely affected by climate change.

123

112

„Nigeria‟s 1st National Communication under the United Nations Framework Convention on Climate Change‟ (2003) 3

(Nigeria National Communication)

113

As above

114

Nigeria National Communication (n 112 above) 8

115

As above

116

Nigeria National Communication (n 112 above) 9

117

Nigeria National Communication (n 112 above) 17

118

As above

119

Nigeria National Communication (n 112 above) 9, 30

120

Nigeria National Communication (n 112 above) 9

121

Nigeria National Communication (n 112 above) 78

122

Nigeria National Communication (n 112 above) 10

123

Nigeria National Communication (n 112 above) 10, 80

231

Climate change will compound an already poor ranking of the status of health in Nigeria which rates poorly with life expectancy less than 50 years.

124

Of relevance to mitigation measures is the forest cover in Nigeria now under threat. With the deforestation rate at 3.7 %, one of the highest in Africa, the sector is susceptible to adverse effects of climate change.

125

These effects are already noticeable leaving less than 10% of

Nigeria‟s forest cover, thus making its deforestation one of the highest in the world.

126

Largely what is left as tropical forest Nigeria is found in Cross River State (CRS).

127

At 1991, the total forest cover of CRS was 7920 sq. km, which accounted for 34.3% of the land area of CRS.

128

In

2001, the total forest cover which has now declined to 6406 sq. km constitutes about 30% of the total land area.

129

The CRS forests have a range of Nigeria‟s biodiversity, with many endemic fauna and flora species.

130

It also has one national park covering roughly 4,000 sq. km, about

2700 sq. km of forest reserves under the control of the CRS.

131

More forest losses have been reported lately with annual rate of deforestation put at 2.2 % per annum.

132

Although this compares fairly with yearly rate, it is expected to have declined considerably given the moratorium on logging granted by the state government and the establishment of the antideforestation task force.

133

Generally in Nigeria, the principal driver of deforestation is agriculture while overgrazing and collection of trees for firewoods are largely accountable for deforestation in the North.

134

In the

South, the driver of deforestation is unsustainable logging while infrastructure induced development in relation to construction of roads, powerlines and mining, to mention a few, also contribute to deforestation.

135

Land use for agricultural purpose has increased in all states except

124

Nigeria National Communication (n 112 above) 8-10

125

OJ Kamalu & CC Wokocha „Land resource inventory and ecological vulnerability: Assessment of Onne area in Rivers State,

Nigeria‟ (2011) 3 Journal of Environmental &Earth Sciences 438; UN-REDD Programme „National Programme Document-

Nigeria‟ (2011) UN-REDD/PB7/2011/8, 10 (Nigeria NPD)

126

As above

127

M Oyebo, F Bisong & T Morakinyo A preliminary assessment of the context for REDD in Nigeria, commissioned by the

Federal Ministry of Environment, the Cross River State's Forestry Comission and UNDP 1 (Nigeria Preliminary Assessment)

128

Nigeria Preliminary Assessment (n 127 above) 11

129

As above

130

As above

131

Nigeria NPD (n 125 above)17

132

As above

133

Nigeria Preliminary Assessment (n 127 above) 1-2

134

Nigeria Preliminary Assessment (n 127 above) 16

135

As above

232

in Akwa Ibom, Imo Jigawa, Kano, Katsina, Ogun, Ondo/Ekiti and Osun state.

136

In states such as

Adamawa, Benue, Cross River, Edo, and Oyo states, the increase in deforestation traceable to agriculture ranged between 120 900 ha and 200 400 ha.

137

Change in climate will affect flora and fauna bringing about significant reduction in products for which different parts of the country are known.

138

The northern zone will experience heightened drought and desertification while greater soil erosion and flooding in areas of higher rainfall will feature in the western and eastern zones.

139

Heightened drought and desertification in the North is affecting the lifestyle of the pastoralist groups including the Fulani, Shuwa, Koyam, Badawi, Dark Buzza and Buduma,

140

who are mostly found in the arid and semi arid parts of Northern Nigeria. Increasing desertification due to climate variability is contraining movement of fulani herdsmen who are constantly locked in violent conflicts with local farmers across Nigeria.

141

In relation to forest-dependent communities, forest products are being adversely affected due to new range of climate variations.

For instance, for the forest-dependent communities in CRS, in a survey that focused on nine of the 18 Local Government Areas where forest-dependent communities exist namely, Akamkpa,

Biase, Obubra, Yakurr, Etung, Ikom, Boki, Obudu, and Obanliku, researchers found that lifelihood depends on income generated from forest products.

142

Yet, forest degradation constitutes a significant threat to the survival of these communities.

143

Having looked at the general climate situation and impacts in these states, it is important to consider the extent to which the regulatory framework dealing with adaptation and mitigation which seeks to respond to the foregoing climate situation addresses indigenous peoples‟ land tenure and use as well as its implications.

136

As above

137

Nigeria Preliminary Assessment (n 127 above) 7, 24 and 25

138

Nigeria NPD (n 125 above) 17

139

Federal Republic of Nigeria „REDD+ Readiness Preparation Proposal (R-PP)‟ (November 2013) 5 (Nigeria R-PP)

140

G Tahir et al „Improving the quality of nomadic education in Nigeria, Association for the Development of Education in Africa

(ADEA) 2005‟http://www.ADEAnet.org (accessed 25 December 2011)

141

IO Albert „Climate change and conflict management in Nigeria‟ in WO Egbewole, MA Etudaiye & OA Olatunji (eds) Law

and climate change in Nigeria (2011) 176-193; M Ogunsanya & SO Popoola „Intervention in the conflict between the Yoruba

Farmers and Fulani herdsmen in Oke –Ogun, Oyo State‟ in IO Albert (ed) Building peace, advancing democracy: Experience

with third party interventions in Nigeria‟s conflicts (2001)

142

WM Fonta, HE Ichoku & E Ayuk „The distributional impacts of forest income on household welfare in rural Nigeria‟ (2011) 2

Journal of Economics & Sustainable Development 1

143

Environmental Rights Action (ERA)/ Friends Of The Earth (FOE) „Report of forum on red & forest-dependent communities‟ http://www.redd-monitor.org/2011/04/15/a-wolf-in-sheeps-clothing-redd-questioned-in-cross-river-state-nigeria/ (accessed 4 July

2014)

233

5.2.2 Domestic climate change regulatory response of adaptation

In line with the COP decision, Least Developed Countries (LDCs) are required to respond to exigent adaptation needs relating to adverse climate change impacts through the preparation of

NAPA

144

or through national communications for non-LDC states.

145

Tanzania and Zambia have raised adaptation concerns through NAPAs,

146

while Nigeria being a non-LDC responded through its national communication.

147

The ensuing sub-section demonstrates that the concerns of indigenous peoples in relation to their land tenure and use are obscured in the official processes for capturing adaptation needs of the selected states.

5.2.2.1 The United Republic of Tanzania

Generally, the NAPA of Tanzania which was submitted in 2007 (Tanzania NAPA)

148

indicates adaptation concerns as including „loss of human, natural, financial, social and physical capital, caused by the adverse impacts of climate change‟. It also documents „severe droughts and floods, among many other disasters‟.

149

It is further mentioned in the NAPA that climate change is expected to reduce the rangelands that are significant for livestock keeping communities in

Tanzania.

150

While this may be argued as embodying some of the concerns of indigenous peoples, it is not certain. A foremost reason for this position is that there is no mention of indigenous peoples or the special cricumstances of their plight in the context of climate change, despite their existence in Tanzania and the fragility of the ecosystem in which they have their abode. Also, as the NAPA stands, it is strong in its emphasis on the adverse impacts of climate change on the environment with no concrete indication on how to address the peculiar plight of indigenous peoples in relation to their land in Tanzania.

The position that the Tanzania NAPA is not aimed at addressing the issues of indigenous peoples in the light of climate challenge is more clearly discernible from the options

144

UNFCCC COP „National adaptation plans‟ FCCC/CP/2011/9/Add.1, Decision 5/CP.17 para 28 -29 (Decision 5/CP.17);each of the 33 African states belonging to LDC has filed a NAPA, see http://unfccc.int/adaptation/workstreams/national_adaptation_programmes_of_action/items/4585.php (accessed 18 November

2013)

145

Decision 5/CP.17 (n 144 above) para 33

146

Tanzania NAPA (n 8 above) ; Zambia NAPA (n 52 above)

147

Nigeria National Communication (n 112 above)

148

Tanzania (n 8 above)

149

Tanzania NAPA (n 8 above) vi

150

Tanzania NAPA (n 8 above) 7

234

recommended in the document for adapting to the adverse impacts of climate change. Some of these options are infact a threat to the relationship of indigenous peoples with their land use and tenure. This is certain of measures such as relocation of people living in wildlife corridors, zero grazing and the development of alternative means of income for the community in the tourist area.

151

Arguably, these approaches will potentially compromise the interest of the „livestock communities‟, particularly, pastoralists in Tanzania.

5.2.2.2 Republic of Zambia

The Zambia NAPA of 2007 details the outcomes of vulnerability assessment carried out on a range of issues such as livelihoods, health and socio-economic situations in the Eastern and

Southern provinces.

152

In these provinces, a wide range of participatory methods, such as focused group discussion, one-on-one household interviews, expert opinion and judgments were allegedly engaged in assessment.

153

Seasonal droughts, occasional dry spells, high temperatures, shortened growing season, and delayed on-set of rains are identified as climatic hazards in

Zambia.

154

In the assessed provinces, the realities of these hazards are felt in sectors including agriculture and food security, human health, water and energy as well as wildlife and forest.

155

In response, the NAPA identifies a range of adaptive strategies including afforestation and reafforestation programmes, provision of fuel wood in order to minimise encroachment of forests.

156

Other measures suggested in the NAPA are management measures to protect displaced wildlife populations, community based ranching for the protection of vulnerable species and development of dams to mitigate the effects of droughts.

157

However, while the foregoing suggestions may have environmental benefits in Zambia, the

NAPA does not respond to pertinent issues of land use and tenure protection which is crucial particularly to forest-dependent communities. Certainly, it neither indicates the role of their land use and tenure or its protection as crucial in the formulation of adaptive measures. It does not

151

Tanzania NAPA (n 8 above) 29-31

152

Zambia NAPA (n 52 above)

153

Zambia NAPA (n 52 above) 13

154

Zambia NAPA (n 52 above)19

155

Zambia NAPA (n 52 above) 19-23

156

As above

157

Zambia NAPA (n 52 above) 20-22

235

signify the circumstances of the Tonga or any of its communities likely to be more acutely impacted by climate change.

5.2.2.3 Federal Republic of Nigeria

Nigeria is a non-LDC state and has shown no interest yet in filing a NAPA as required of a non-

LDC under Decision 5/CP.17.

158

It has, however, filed a national communication which devotes a substantial attention to issues of adaptation in the country.

159

In its first and only national communication under the UNFCCC, the peculiar consequences resulting from climate change that are reported as requiring adaptive measures are soil erosion and flooding in the South

Eastern part of the country, while the impacts of climate change on agriculture are assessed as including changes in temperature and rainfall on plants and animals as well as sea level rise on agricultural land.

160

Decrease in livestock production and increase in sea level are profiled in the national communication as likely to lead to considerable losses in the oil investments and developments in the Niger-Delta zone.

161

However, while a reference is made to the adverse effects of climate change on „the people in the coastal areas‟,

162

the Nigeria national communication in reporting on adaptation challenges largely focuses on environmental impacts of climate change. In doing so, it utilises mostly existing records such as „socio-economic statistics, photographs, satellite imageries, geologic and oceanographic data, biological and fisheries data.‟

163

Generally, communities affected by these scenarios are not mentioned, nor are pertinent issues relating to these communities discussed.

Yet, a decline in pastureland as a result of climate change will not only affect the production of livestocks, but the lifestyle of the peoples such as the Mbororo who are traditionally connected to the use of land for cattle rearing. The passing reference to the people living in coastal areas as likely to experience flooding and erosion does not capture the larger problems faced by the

158

UNFCCC COP „National adaptation plans‟ FCCC/CP/2011/9/Add.1, Decision 5/CP.17 paras 28-31

159

Nigeria National Communication (n 112 above), its chapter five is devoted to impacts, vulnerability assessment and adaptation measures

160

Nigeria National Communication (n 112 above) 73

161

Nigeria National Communication (n 112 above) 75

162

Nigeria National Communication (n 112 above) 82

163

Nigeria National Communication (n 112 above) 70

236

peoples of this region including the Itsekiris, Ukwanis, Isokos and Ogonis, who have for long experienced oil spillage, environmental protection, environmental losses and land degradation.

164

5.2.2.4 Implications of inadequate reflection of land tenure and use in adaptation process

Viewed from the basis that it neglects the vulnerability of indigenous peoples, exclusion from adaptation documentation process is unhelpful to indigenous peoples‟ land use and tenure, at least, for four reasons.

First, the neglect of indigenous peoples‟ concerns in these documents raises serious doubt about their participation in the processes aimed at documenting evidence of vulnerability to the adverse impacts of climate change which requires adaptation intervention. Considering the adverse impacts of climate change, specific countries should ordinarily have used the opportunities to enhance the participation of indigenous peoples in national processes. More importantly, it should have utilised indigenous peoples‟ concerns in relation to their land as a gauging point for the adaptive needs of the countries where they are located. However, the documentation of these respective countries points toward a different approach. Hence, it is no surprise that indigenous peoples complain of exclusion from the discussions of issues relating to the process and implementation of projects under adaptation funds, particularly being managed by the Global

Environment Facility (GEF).

165

It has been observed that GEF funds even where it mentions tenure reform and land titling, usually exempts protected areas, such as the forests and coastal areas, suggesting that the funds is not meant for furthering the land rights of indigenous peoples in these areas.

166

Second, the neglect of indigenous peoples undermines a vital source of information that should ordinarily enrich a national communication or NAPA and thus help its international review process in forming a favourable decision on the eligibility of a given country for NAPA funds.

This is in the sense that by detailing the circumstances of indigenous peoples in the documentation process, a country can justify its demand for funds using a range of indices which are peculiar to indigenous peoples. These indices, for instance, include the use of funds for

164

Oluduro (n 111 above) 13, 214

165

On the discussion of the Global Environmental Fund (GEF) in relation to adaptation see chapter 4; see generally, T Griffiths

„Help or hindrance? The global environment facility, biodiversity conservation, and indigenous peoples‟ (2010)

166

As above

237

management of land resources and fragile ecosystems, and addressing episodes of droughts and floods in areas susceptible to extreme weather events. In applying for the Green Climate Fund

(GCF), this would have constituted an evidence of „urgent and immediate needs‟ demonstrating that populations in Africa are peculiarly vulnerable to the adverse impacts of climate change.

Also, for a process such as the Adaptation Fund (AF), which seeks „access to the fund in a balanced and equitable manner‟, documenting the concerns of indigenous peoples offers a strong equitable claim to the AF.

Third, the exclusion of indigenous peoples‟ voice from documentation disempowers them from any legal claim to the application of funds set up under the UNFCCC and Kyoto Protocol for adaptive needs. This is moreso as, thus far, in the context of adaptation funds, accessibility is largely understood as the access of national government to funds.

167

This contrasts with the position of the International Indigenous Peoples‟ Forum on Climate Change (IIPFCC), a forum through which indigenous peoples discuss and agree on key climate change issues.

168

In relation to climate finance, the IIPFCC has insisted that „direct access‟ under the funds be interpreted as access by indigenous peoples, noting that „direct access‟ is still understood in the climate change discussion as access by national governments and the ability of accredited national implementing entities to access the funds.

169

The exclusion of indigenous peoples from the documentation process effectively confirms that states can exercise discretion to use funds as they wish, not necessarily for the improvement of their welfare.

Finally, an essential feature in the formulation of these documentations deals with profiling adaptive measures or coping mechanisms being employed in response to climate change by the populations in a given country. For instance, primary aims for calling for the preparation of

NAPAs include, the reporting of information on adverse effects of climate change, and profiling of coping strategies which could be collated and reviewed.

170

The essence of documenting the coping strategies is in order to enable NAPAs address the „urgent and immediate adaptation

167

AfDB „Operationalising the Green Climate Fund: Enabling African Access‟ (October, 2012) 3

168

IIPFCC is the joint indigenous caucus in the UNFCCC process. It is open to indigenous activists who are interested in engaging in the climate change negotiations, see http://www.iwgia.org/human-rights/un-mechanisms-and-processes/unframework-convention-on-climate-change-unfccc (accessed 18 November 2013)

169

Cited in F Martone & J Rubis „Indigenous peoples and the Green Climate Fund: A technical briefing for indigenous peoples, policymakers and support groups‟ (August 2012) 6, 9

170

„Guidelines for the preparation of national adaptation programmes of action‟ Annex to Decision 28/ CP.7, para 8(b)(i) (Annex to Decision 28/ CP.7)

238

needs‟.

171

Accordingly, scanty or no reference to indigenous peoples in the documentation does not only overlook their concerns, it signifies that indigenous peoples‟ adaptive measures over time may never be profiled, let alone benefit, from the assistance under the financial arrangements for its development.

Having examined the extent of consideration for the land tenure and use of indigenous peoples in the adaptation process and its implications, the next section examines the same question in the context of climate change mitigation with focus on REDD+.

5.2.3 National climate change regulatory response of REDD+ as a mitigation measure

At the national level, UN-REDD Programme is a key initiative supporting REDD+, as a climate mitigation measure.

172

The UN-REDD Programme operates through two complementary modalities, namely National Programme

173

and the Global Programme.

174

According to the UN-

REDD 2012 programme Strategy (UN-REDD Strategy document), at the national level, REDD+ activities are categorised into three phases. At phase 1, the focus is on the formulation and development of national strategies or action plans. Also known as the inception or readiness phase, at this stage, capacity is given to developing states to ensure that a national strategy is formulated.

175

There is no particular description of what a national strategy should contain in the

UN-REDD Strategy document. However, according to USLEGAL online legal definition, a strategy is defined as:

171

Annex to Decision 28/ CP.7 (n 170 above) preamble

172

As mentioned in chapter five of this study , there are other mitigation measures forming part of climate change negotiation, particularly under the CDM

173

There are three stages in National Programme cycle. These are Stage 1 (Scoping), Stage 2 (Finalization) and Stage 3

(implementation). At the Scoping stage, activities required are the formulation of draft Readiness Preparation Plan (R-PP) and draft National Programme Document (NPD) , Validation of draft R-PP , Independent external review and Policy Board approval of the UN-REDD Programme contribution to the R-PP. Stage 2 activities commence with budget allocation and conclude with the receipt of the signed NP by the UN-REDD Programme Secretariat. At that point, NP implementation (Stage 3) is ready to begin. The stage entails activities including the transfer of funds, inception phase and the actual implementation of REDD+, see

UN-REDD Programme „UN-REDD Programme Handbook for National Programmes and Other National-Level Activities‟

(Handbook for National Programme)

174

„The UN-REDD Programme Strategy 2011-2015‟ 10 (UN-REDD Programme Strategy); the global outlet of REDD+ is based on the rationale that countries involved in REDD+ can share experience and best practices with one another, see UN-REDD

Programme Strategy (above) 23

175

UN-REDD Programme Strategy (n 174 above) 3; M Herold et al „A step-wise framework for setting REDD+ forest reference emission levels and forest reference levels‟ Infobriefs No. 52 (April 2012)

239

[c]hoices and decisions concerning future action at a level of generality which permits flexible implementation within the broad outline that the strategy presents. A strategy is more specific than a policy but more general than a plan yet has aspects of both.

176

Hence, since it is employed alternatively to an action plan, it can be stated that a national strategy in the context of REDD+ will include the goal to be achieved, sequence of steps that must be taken in the realisation of that goal, what should be done and by whom, duration, and available resources for specific activities.

177

More importantly, at this stage, participating states are to ensure that laws and institutions are reformed in readiness for REDD+. For instance, the UN-

REDD National programme requires that the REDD+ preparation proposal (R-PP) of states should include information on land use and tenure as well as forest law, policy and governance.

178

Similarly, the R-PP template stresses that a critical element in developing a

REDD+ strategy is the review of laws and policies relating to land use.

179

The emphasis on the component of laws and policies is particularly significant for indigenous peoples and the REDD+ process. This is considering, as earlier explained in previous chapter, the Cancun Agreements call upon states involved in REDD activities to take into consideration national laws and international obligation towards UNDRIP for the protection of indigenous peoples.

180

The second phase of the REDD+ activities is otherwise known as the results-based demonstration phase.

181

This phase includes the implementation of national strategies or action plans which could advance capacity building, technology development and transfer.

182

This stage largely focuses on further capacity building for the monitoring and measurement, report and verification (MRV) of activities.

183

The phase 3 of REDD+ deals with positive incentives for rewarding verified performances and entails the monitoring of national policies and measures, particularly in relation to the MRV.

184

176

USLEGAL „Online legal definition‟ http://definitions.uslegal.com/s/strategy/(accessed 18 November 2013)

177

http://www.businessdictionary.com/definition/strategy.html (accessed 18 November 2013)

178

Handbook for National Programme (n 173 above)11

179

Forest Carbon Partnership Facility (FCPF) and The United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (UN-REDD) Readiness Preparation

Proposal (R-PP) Version 6 (FCFP & UN-REDD Template) 18, 32, 36

180

UNFCCC CP „The Cancun Agreements: Outcome of the work of the Ad-hoc Working Group on Long-term Cooperative

Action under the Convention‟ Decision 1/CP.16, FCCC/CP/2010/7/Add.1 (Decision 1/CP.16) Appendix 1 para 2(c)

181

Herold et al (n 175 above)

182

Herold et al (n 175 above); UN-REDD Programme Strategy (n 174 above)

183

As above

184

UN-REDD Programme Strategy (n 174 above)

240

According to the UN-REDD 2012 programme Strategy, during the period 2011-2015, the UN-

REDD will focus on supporting countries to develop and implement their REDD+ strategies efficiently, effectively and equitably so as to speed up their REDD+ readiness and sustainably change their land-use and forest management.

185

Hence, the UN-REDD Programme is so far active in phase 1 and has delivered technical support and funding for the development of national

REDD+ strategies in pilot countries.

186

5.2.3.1 REDD+ readiness in selected states of Africa in relation to indigenous peoples’ lands

In relation to phase 1, when activities began in 2005, it was with nine countries, under an initiative referred to as „Quick Start support‟. This arrangement aims at building capacity of selected countries to implement REDD actions, maximise emission reductions and activities at the national and local levels, as well as test preliminary concepts and scenarios for REDD for the purpose of improving knowledge base about successes and failures. It also aims at paving way for long-term engagement of REDD into the carbon market through payment for ecosystem services.

187

Of the nine countries selected for this support, DRC, Tanzania and Zambia are in

Africa.

188

In addition to these initial pilot countries, in 2011, the UN-REDD Programme Policy

Board approved funding for National Programmes in five more countries including Nigeria.

189

While Tanzania has concluded Phase 1 with a national strategy and ready to move into implementation phase,

190

Zambia and Nigeria are still at different stages in phase 1.

191

The argument is made that in the preparation for REDD+ implementation, the national climate regulatory framework is inconsistent with international standard required for activities under the

185

As above

186

UN-REDD Programme Strategy (n 174 above) 4

187

„Quick Start support‟ refers to a support programmes developed in co-operation with the nine pilot countries and any other additional National Programmes approved by the Policy Board before 2011, see UN-REDD Programme Strategy (n 174 above)

22, 23; „Draft for Discussion Quick Start Actions and Establishment of the Multi-Donor Trust Fund for the UN Collaborative

Programme on Reducing Emissions from Deforestation and Forest Degradation (UN-REDD) in Developing Countries‟ 14 May

2008, 2 http://www.un-redd.org/Portals/15/documents/publications/UN-REDD_QuickStartActions.pdf/(accessed 18 November

2013)

188

Other countries are Indonesia, Papua New Guinea and Viet Nam (Asia and the Pacific), Bolivia, Panama and Paraguay (Latin

America and the Caribbean), see Handbook for National Programmes (n 173 above)

189

Other nations are Cambodia, Ecuador, the Philippines and Solomon Islands, see UN-REDD Programme „Report of the

Seventh Policy Board meeting‟ 13-14 October 2011, Berlin, Germany 4

190

This fact is also confirmed by Mr Kiroyi during my interview with him at the Rights based REDD+ dialogue II 18-19 October

2013 at Cape Town

191

This is also confirmed by Mr Victor Chiiba during my interview with him at the Rights based REDD+ dialogue II 18-19

October 2013 at Cape Town; also in relation to Nigeria, see interview with an official of the Nigeria Federal Ministry of the

Environment who mentioned that Nigeria is getting ready for implementation of REDD+ in accordance with NPD, NTA 9 pm

News, 29 December 2013

241

UN-REDD National programme. This is demonstrated by using three countries, that is Zambia,

Tanzania and Nigeria as a typology for Africa.

1. Tanzania and readiness for REDD+

The involvement of Tanzania in the REDD+ activities dates back to 2009 when it started its formulation of a national framework to guide the development of a REDD+ Strategy.

192

The process is financially supported by the UN-REDD programme (USD 4.3 million) and the Royal

Norwegian Government (USD 80 million).

193

Tanzania is also part of the World Bank Forest

Carbon Partnership Facility (FCPF), but does not currently receive any funding from it because the readiness phase is already funded by the Royal Norwegian Government and UN-REDD.

194

FCPF membership merely serves as a way for Tanzania to be up-to-date with international

REDD+ policy and to learn from other partnership members.

195

It has completed an R-PP,

196

and finalising a draft national strategy in place,

197

and REDD Social Environmental Safeguards

(Tanzania REDD+ SES).

198

Arguably, in terms of the protection of indigenous peoples‟ land tenure and use, there appears to be little departure from the status quo in the regulatory framework in readiness for REDD+ activities in Tanzania. This is evident from an analysis of the regulatory framework with focus on institutions and instruments being formulated in Tanzania as carried out below.

a. Readiness institutions and composition

The composition of the decision-making institutions involved in the preparation of the R-PP evidences that nothing much has changed in terms of indigenous peoples‟ land tenure and use protection. These key institutions include the National REDD+ Task Force (NRTF), National

192

Tanzania REDD readiness progress fact sheet (March, 2012) (Tanzania Fact Sheet)

193

Burgess et al (n 45 above) 340; SA Milledge „Getting REDDy in Tanzania: Principles, preparations and perspectives‟ (2009)

The Arc Journal 2

194

Tanzania Fact Sheet (n 192 above)

195

„REDD in Tanzania‟ http://theredddesk.org/countries/tanzania//(accessed 18 November 2013)

196

Tanzania „Final Draft: Forest Carbon Partnership Facility (FCPF) and Readiness Preparation Proposal (R-PP)‟15th June 2010

(Tanzania R-PP)

197

United Republic of Tanzania „National Strategy for Reduced Emissions from Deforestation and Forest Degradation (REDD+)

2nd Draft (June 2012)

198

United Republic of Tanzania Tanzania REDD+ Social and Environmental Safeguards (June 2013) Draft, Annex 1: Glossary of Key Terms (Tanzania REDD+ SES)

242

Climate Change Steering Committee (NCCSC), and the National Climate Change Technical

Committee (NCCTC).

In terms of their composition, these institutions are predominantly made of government officials allowing for little or no representation for indigenous peoples. The NCCSC is composed of

Permanent Secretaries (PS) from Ministries, that is, Prime Minister‟s Office (PMO), Ministry of

Energy and Minerals (MEM), Ministry of Finance and Economic Affairs ( MFEA), Ministry of

Industry, Trade and Cooperatives (MITC), Ministry of Natural Resources and Tourism (MNRT),

Ministry of Justice and Constitutional Affaires (MJCA), Ministry of Lands Housing and

Settlements (MLHC), Ministry of Agriculture and Food Security (MAFS), Ministry of Fisheries and Livestock Development (MFLD), Ministry of Foreign Affairs and International Cooperation (MFIC), and the Ministry of Agriculture, Livestock and Environment, Zanzibar

(MALE).

199

With composition largely dominated by directors of the various ministries in the National

Steering Committee, the NCCTC is not different. Similar gap is noticeable in the NRTF which operated as an interim arrangement to manage implementation of technical and operational issues in relation to REDD readiness. The NRTF largely consists technical officers drawn by government from ministries and a representation from civil society organisations including the

Vice President‟s Office, Environment, Ministry of Natural Resources and Tourism/Tanzania

Forestry Services, Prime Minister‟s Office Regional Administration and Local Governments,

Ministry of Energy and Minerals, Ministry of Lands, Housing and Human Settlements

Development, Department of Forestry and Non-Renewable Natural Resources-Zanzibar,

Ministry of Agriculture Food and Cooperatives, Ministry of Community Development, Gender and Children, Department of Environment, Zanzibar and the Ministry of Finance.

200

Although if properly constituted, these institutions can perform crucial role which may benefit indigenous peoples in terms of the protection of their rights, this is not yet the case. For instance, the NCCTC oversees all technical issues related to the implementation of climate change issues including REDD,

201

while the NRTF is tasked with the responsibility of anchoring the

199

Tanzania R-PP (n 196 above) 6

200

Tanzania National Strategy (n 39 above) 5

201

Tanzania National Strategy (n 39 above) xiv

243

stakeholders‟ consultation.

202

With the limited space provided for representation of civil society in these institutions, it is difficult to imagine that the functioning of these institutions will be tailored to the interests of indigenous peoples particularly in relation to their land use and tenure.

This arrangement is not in line with the UN-REDD Programme international safeguards that require for the representation of indigenous peoples in the decision-making set up for REDD+ as a critical component in ensuring their participation.

203

It can be argued that accommodating a limited representation of the civil society in the NRFT already prepares the ground for the possibility that the approach of the NRTP is not fundamentally set out to protect the interests of indigenous peoples. A better approach for these institutions should at least have reflected the example offered by the Policy Board of the UN-REDD Programme which has indigenous peoples‟ representative as a permanent member.

204

Arguably, the failure to make specific provision for a representation of indigenous peoples in the NRTF falls short of this arrangement.

Given the state centred composition of these institutions, there is little hesitation about a conclusion that it is unhelpful arrangement to address indigenous peoples‟ concerns.

b. Regulatory framework and indigenous peoples’ lands

REDD+ regulatory framework in Tanzania can be broadly categorised into policies and legislation identified as relevant to the implementation of REDD+ process. These policies and legislation are referred to in the Tanzania National Strategy and National Safeguards, and therefore, are the instruments constituting the regulatory regime within which Tanzania will implement the REDD+ under the UN-REDD National Programme. However, as shall be made evident in the ensuing paragraps, there is a general insecurity of indigenous peoples‟ land tenure and use under the regulatory regime for REDD+ in Tanzania.

202

As above

203

See for instance, Decision 1/CP.16 (n 180 above) para 2; REDD+ SES „REDD+ Social & Environmental Standards‟ Version

2, 10 September 2012 (REDD+ SES), principle 6 provides that all relevant rights holders and stakeholders participate fully and effectively in the REDD+ programme. As an indicator to attain this, this connotes that REDD+ programme governance structures and processes should include opportunities of stake and right holders to participate in decision-making

204

UN-REDD Programme „Policy Board Composition‟ (2013) 2

244

i. Legislation environment and REDD+

The Tanzania National Strategy for REDD 2013 lists a range of laws as critical in the implementation of strategy for REDD+.

205

These are: the Land Act (1999), Village Land Act

(1999) for Tanzania Mainland, Environmental Management Act (2004), the Forest Act (2002), the Beekeeping Act (2002), the Wildlife Conservation Act (2009), and the Fisheries Act (2010) and Forest Resources Conservation and Management Act Zanzibar (1996). However, these laws contain provisions which are conflicting with international safeguards of UN-REDD Programme and are therefore inadequate for the purpose of protecting the concerns of indigenous peoples land use and tenure.

In profiling the legal framework for REDD+, the National Strategy does not make reference to the constitution, despite its importance to land tenure holding in Tanzania. Even then, the lack of reference to the constitution does not suggest that the strategy is to be understood outside the provisions of the constitution.

206

For instance, in providing that policies and programmes shall be directed towards ensuring that human rights and human dignity are respected,

207

the constitution sets an important stage for the application and implementation of strategy on REDD+. However, there are specific provisions which may undermine the protection of indigenous peoples‟ land tenure and use. Among these are the provision guaranteeing equality before the law without discrimination with the caveat that discrimination should not be understood as preventing government from taking steps to rectify „disabilities in the society‟.

208

In its clause dealing with limitation of rights, the Constitution provides that enjoyment of rights does not negate „any existing law or prohibit the enactment of any law‟ for purposes including exploitation and utilisation of natural resources or „development of property of any other interests‟ for public benefit.

209

In effect, these provisions offer the state the platform to enact laws to acquire land or pursue development programme in national interest even if it infringes on the rights of others.

That the above is infact the reality is seen in the limitations in a range of laws applicable in the implementation of REDD+ .

205

Tanzania National Strategy (n 39 above) 29

206

The Constitution of the United Republic of Tanzania, 1977 (as amended)

207

The Constitution of the United Republic of Tanzania, art 9(a)

208

The Constitution of the United Republic of Tanzania, art 13(5)

209

The Constitution of the United Republic of Tanzania, art 30 (2)(b)

245

The Land Act of Tanzania aims at ensuring that land is productively and sustainably used.

210

Considering that the lifestyle of indigenous peoples leaves scanty physical evidence of occupation of possession, these provisions provide the basis for expropriation on the ground that such lands are idle or unoccupied. No doubt, the Land Act urges that land use accords with commerce,

211

and requires that this should be done without disadvantaging small-holders and groups such as the pastoralists.

212

The Land Act recognises customary right of occupancy which includes „deemed right of occupancy‟ signifying the title of „a Tanzania citizen of African descent or a community of Tanzania citizens of African descent using or occupying land under and in accordance with customary law‟.

213

Yet, as promising as this may seem in implementing

REDD+ activities, these provisions are significantly qualified by a range of provisions in the Act.

For instance, all land in Tanzania is public and generally vested in the President who holds same as trustee for and on behalf of all citizens of Tanzania. Public land is categorised as general, village and reserved land.

214

Under the Land Act, the President may subject to compensation,

215 compulsorily acquire a land for the purpose of transferring from one category of governance to the other.

216

Similarly, according to article 14 of the Village Land Act, a landholding may be allowed under customary right of occupancy if it is held in such circumstances before the coming into effect of the Act. While this may be beneficial to indigenous peoples, this is limited in its application as customary right of occupancy may be revoked if such land is adjudged as lying fallow for about five years or used for any purpose which is considered illegal.

217

Also, the president reserves the right to transfer any land held under the Village Act into a general or reserved land for the purpose of public interests which may include investments or national interests.

218

The possibility that the the above provisions may be construed in a manner that subordinate the customary or traditional land tenure of indigenous populations is discernible from case-law. In

Attorney General v Lohay Akonaay and Joseph Lohay,

219 the respondents had acquired land

210

The Land Act (1999), Cap 113, section 1 (1)(e)

211

The Land Act (1999) section 1(1)(i)

212

The Land Act (1999) section 1(1)(k)

213

The Land Act (1999) preamble

214

The Land Act (1999) section 4

215

The Land Act (1999) section 9

216

The Land Act (1999) section 7

217

Village Land Act (1999) art 45(a)

218

Village Land Act (1999) art 4

219

Attorney General v Lohay Akonaay and Joseph Lohay 1995 TLR 80 (CA) (Akonaay case)

246

rights under customary law but were dispossessed by the state. Although their action at the High

Court challenging the constitutionality of the acquisition and adequacy of compensation was successful and subsequently affirmed at the Court of Appeal, the latter Court held that customary or deemed rights in land are by „their nature nothing but rights to occupy and use the land‟ and its transfer from native to non-native requires presidential consent.

220

In a sense, the judgment reinforces the notion that expropriation is fair in so far as adequation compensation is paid. Also, the limited power of village councils in respect of customary tenureship was also portrayed by the decision of the Court of Appeal in National Agricultural and Food Corporation (NAFCO) v

Mulbadaw Village Council and others.

221

In reversing the order made in favour of the respondents by the High Court as the owner of disputed land, the Court of Appeal held that the

Village Council can only hold and exercise power in respect of the land allocated to it by the

District Development Council and that villagers cultivating land through the permission of the applicants were at best licensees.

222

Furthermore, the right held under any category of governance including customary law may be forfeited if land is adjudged as abandoned. Circumstances upon which such conclusion can be drawn by the authority include: continuing default in the payment of rent, taxes or dues on the said land for a period not less than five years, or structures on the land has fallen into a state of disrepair,

223

and by reason of this neglect, land is incapable of productive purposes without substantial costs being incurred.

224

Once this is proved, the Commissioner can commence the proceedings which may lead to the revocation of the right of occupancy.

225

It has been argued that since pasture may not be regarded as an improvement, the pastoralists are not entitled to compensation based on this decision.

226

The Land Acquisition Act empowers the State to acquire land for purposes including development of agricultural land or provision of sites for „industrial, agricultural or commercial

220

Akonaay case (n 219 above) 91

221

National Agricultural and Food Corporation v Mulbadaw Village Council & others 1985 TLR 88 (CA) (Mulbadaw case)

222

Mulbadaw case (n 221 above) 90

223

The Land Act (1999) section 51(1) (c) generally

224

The Land Act (1999) section 51 (1)(e )(i)

225

The Land Act (1999) section 51 (4)

226

B Lobulu „Dispossession and land tenure in Tanzania: What hope from the courts?‟ https://www.culturalsurvival.org/publications/cultural-survival-quarterly/tanzania/dispossession-and-land-tenure-tanzania-whathope-c (accessed 24 May 2014)

247

development, social services or housing‟.

227

For indigenous peoples whose lifestyles barely touch on land resources and may lack the presence of physical structure on land, there is the possibility that this might be regarded as unproductive use of land. This is not unlikely considering that the National Strategy relies on the Land Act, signifying that this may be used in declaring land traditionally belonging to indigenous peoples as vacant for REDD+ activities.

The Forest Act of Tanzania is also regarded by the National Strategy as critical in the implementation of the REDD+ particularly its provisions on participatory forest management

(PFM) through Community Based Forest Management (CBFM) Scheme.

228

The basis for this viewpoint is that section 3(b) encourages the facilitation of active participation of citizen in

„sustainable planning, management, use and conservation of forest resources‟. However, the

Minister is empowered under the Act to declare any given land a national or local authority forest reserves.

229

Subject to the right to receive compensation, a national forest or local authority forest area may be so declared for the purposes of production and protection of the forest.

230

The limiting effect of the Forest Act on the use and tenure of forests by indigenous peoples is similarly reflected in the Beekeeping Act of 2002. According to this Act, the Minister may in similar circumstances as applicable in forest reserves, declare a given area as a Beekeeping

Zone.

231

This zone refers to an area either within national or local forests reserves in which activities relating to beekeeping are taking place.

232

Related to this is the Wildlife Conservation

Act 2009 which defines a conservation area in relation to wildlife as including forest reserve under the Forest Act.

233

The Act empowers the Minister to declare any area of land as a game controlled area and prohibits activities which are incompatible with the Forest Act, the

Beekeeping Act, the Environmental Management Act or any other relevant laws.

234

The Environmental Management Act, among other things, ensures clean, safe and healthy environment and motivates actions on environment and promotes the national environmental

227

Land Acquisition Act (1967) section 4(1)

228

Tanzania National Strategy (n 39 above) 29

229

The Forest Act (2002) section 22(1)(a) and (b)

230

The Forest Act (2002) section 22(4) and (5)

231

The Beekeeping Act (2002) section 11

232

The Beekeeping Act (2002) preamble

233

Wildlife Conservation Act (2009)

234

Wildlife Conservation Act (2009) section 31(6)

248

policy.

235

Its main objective is to promote the „enhancement, protection, conservation and management of the environment‟.

236

However, the power of the minister to declare a given land as environmentally protected area

237

may have a qualifying effect on the land use and tenure of indigenous peoples. While there is a provision that in coming to a decision of acquisition, the minister may take into considerations the representations made by persons or NGOs with public or private interests,

238

local communities‟ interests,

239

and international obligations.

240

This is, nonetheless, unhelpful to indigenous peoples, as there is no indication under the Act that the discretion of the minister can be halted by the representations made by groups or individual.

Article 53 of the Environmental Management Act also limits the application of the Village Land

Act that allows for sharing arrangement between pastoralists and agriculturists. This is because it enables the minister to prescribe conditions subject to which customary rights of occupancy should be enjoyed. This constitutes a limitation to the provision of section 58 of the Village Land

Act that permits land sharing arrangement, and other provisions allowing for customary occupancy of land.

241

The implication of the foregoing is that contrary to the international safeguards applicable under the UN-REDD Programme, these laws permit states to apply restrictive measures which may justify the displacement of indigenous peoples from their land for the purpose of implementing

REDD+ activities.

ii. Policy environment and REDD+

With respect to policy environment for REDD+, a range of policies are recognised in the

National Strategies of 2013 in the Tanzania (Mainland) and Zanzibar as adequate for realising the implementation of REDD+.

242

In Tanzania, pillar policies are National Environmental

Policy,

243

National Forest Policy,

244

National Water Policy,

245

National Energy Policy,

246

and

235

The Environmental Management Act (2004) arts 4, 5 and 6

236

The Environmental Management Act (2004) art 7

237

The Environmental Management Act (2004) art 47

238

The Environmental Management Act (2004) section 47(3)(a)

239

The Environmental Management Act (2004) section 47 (3)(f)

240

The Environmental Management Act (2004) section 47(3)(g)

241

Village Land Act (1999) art 14

242

Tanzania National Strategy (n 39 above)

243

National Environmental Policy (1997)

244

National Forest Policy (1998)

245

National Water Policy (2002)

249

National Human Settlements Development Policy.

247

For Zanzibar, key policies are the National

Forest Policy,

248

Environmental Policy,

249

Agricultural Sector Policy,

250

Tourism Policy,

251

National Land Policy,

252

and Energy Policy (2009).

253

These policies are relevant for REDD+ process in Tanzania in the sense that each contains one provision or the other directly or indirectly linked to land and forests governance which are central to the REDD+ process. Section 11(a) and (f) of the National Environmental policy respectively identifies land degradation and deforestation as a matter of environmental concern in Tanzania. It notes that due to activities including clearance for agriculture, wood fuel and other demands, Tanzania forests is declining.

254

This informed the overall objectives of the policy which include the prevention and control of environmental degradation and enhancement as well as conservation of natural and man-made heritage.

255

While these provisions seem promising, the policy is silent on the steps to be taken toward the realisation of its goal. In particular, there is no indication on how to ensure that ownership of land of indigenous peoples is guaranteed and respected in the context of environmental protection. Yet, notwithstanding this gap, the National Strategy 2013 refers to National

Environmental Policy as providing guidance on sustainable use of the environment and natural resources.

256

Without a clear role for indigenous peoples, it is difficult to see how sustainable use of the environment can be achieved.

The National Forest Policy identifies constraints hindering sustainable management of forests.

These include inadequate resources to implement active and sustainable management of forests and related resources.

257

It acknowledges that much remains to be done in terms of benefit- sharing accruing from wildlife management in some areas, despite efforts aimed at involving

246

National Energy Policy (2003)

247

National Human Settlements Development Policy (2000)

248

National Forest Policy (1995)

249

Environmental Policy (1992)

250

Agricultural Sector Policy (2002)

251

Tourism Policy (2004)

252

National Land Policy (1995)

253

Energy Policy (2009)

254

National Environmental Policy (1997) section 12(f)

255

National Environmental Policy (1997) section 18 generally

256

Tanzania National Strategy (n 39 above) 23

257

National Forestry Policy (1995) section 2

250

local people.

258

For policy statements, it describes the scope of forest management as including central and local government reserves as well as forest on public land (non -reserved forest land) and private and community forestry.

259

While central and local government forests are respectively under the management of central and local government or agencies to which this role may have been designated,

260

the management of forest on public lands can be allocated to villages, private individuals and the governments.

261

In relation to land tenure and use by local communities, the National Forestry Policy acknowledges the role of local communities in sustainable management of the forests. However, it is uncertain in its protection of land and tree tenure. This contrasts with the assertion in the

National Strategy that the National Forest Policy promotes individual, group and community forests full rights of ownership and management of forest through establishment of Village Land

Forest Reserves (VLFRs).

262

The reality is that in addition to being a misrepresentation of the

National Forest Policy, these provisions, at any rate, are not up to the standard of respect for land ownership and use as well as participation in decision-making enunciated in the UN-REDD safeguards.

263

There are specific objectives of the National Human Settlements Development Policy that are relevant to REDD+ process. These include the need to make serviced land available for shelter and human settlements to all sections of the communities including the disadvantaged,

264

and protect environment from destruction.

265

To realise these objectives, the government undertakes to embark upon certain steps. These include taking steps to ensure the availability of land to all, fast track and ensure adequate compensation to holders of land required for expansion.

266

However, the prescription of procedures „for getting legal rights of occupancy‟ to land seems discriminatory as it presupposes that the informal tenure of indigenous peoples such as the

Maasai is inferior. Also, the provision that land can be expropriated for expansion purpose may

258

National Forestry Policy (1995) section 2(3)

259

National Forestry Policy (1995) section 4(1)(1), 4(1)(2) and 4(1)(3) respectively

260

National Forestry Policy (1995) section 4(1)(1)

261

National Forestry Policy (1995) section 4(1)(2)

262

Tanzania National Strategy (n 39 above) 26

263

See generally, Decision 1/CP.16 (n 180 above) embodying the safeguards; REDD+ SES (n 203 above)

264

National Human Settlements Development Policy (2000) section 3(2)(i)

265

National Human Settlements Development Policy (2000) section 3(2)(vi)

266

National Human Settlements Development Policy (2000) section 4(1)(1), 4(2)(i), (ii) and (iii)

251

undermine UN-REDD international safeguards which require that free, prior and informed consent of indigenous peoples be observed in projects intended for execution on their lands.

Other policies which directly link with forest are the National Land Policy, National Water

Policy and National Energy Policy. One of the objectives of the National Land Policy is to ensure that customary rights of groups such as peasants and herdsmen are recognised and secured in law.

267

What seems like a set of promising provisions are, however limited by several qualifications. For instance, land in Tanzania is regarded as „public land‟, whether granted, customary or unoccupied, and are vested in the President as trustee on behalf of all citizens.

268

It also recognises that the president in the exercise of this power may compulsorily acquire the land and tenancy may be revoked in the interest of the public.

269

The National Water Policy links with forestry in the sense that the latter has an important effect on the conservation of water resources.

270

Also, section 17 of the National Energy Policy acknowledges that trees are main source of biomass- based fuels in Tanzania and are being harvested at a faster rate than its regeneration rate. Hence, one of the policy objectives of implication for forestry is that it seeks to „arrest woodfuel depletion by evolving more appropriate land management practices‟.

271

It views forest clearance as a negative trigger of environmental challenge.

272

In order to contribute to the preservation of the environment, the

National Energy Policy requires for environmental impact assessment,

273

and implementation of measures such as afforestation and reforestation.

274

However, the provision that forbids forest clearance as part of policy environment for the implementation of the REDD+ process,

275

may be counterproductive for indigenous peoples. This is in the sense that such provision may undermine their subsistence lifestyle and ultimately deprive them access to land use and tenure.

Zanzibar also has relevant laws and policies which have been identified by the National Strategy for Tanzania as supporting REDD+ activities. These include Zanzibar National Policy, National

267

National Land Policy (1997) section 2(2)

268

National Land Policy (1997) section 4(1)(1)

269

National Land Policy (1997) section 4(2)(1)(3) to 4(2)(14)

270

National Water Policy (2002) section 2(10)

271

National Energy Policy (2009) section 28(5)

272

National Energy Policy (2009) section 139

273

National Energy Policy (2009) section 148(iii)

274

National Energy Policy (2009) section 148 (viii)

275

National Water Policy (2002) section 27

252

Environmental Policy, Zanzibar Agricultural Policy of 2002, Zanzibar Tourism Policy and

Forest Resources Conservation and Management Act Zanzibar (1996).

c. Zanzibar: Regulatory framework and indigenous peoples’ lands

i. Legislation environment and REDD+

The Forest Resources Conservation and Management Act Zanzibar (1996) is useful in shaping the implementation of REDD+ activities.

276

It allows members of the community to enter into forest management arrangement with the Forest Administrator over an area designated as

„Community Forest Management Area‟.

277

However, this merely relate to the use and not tenure of the forests. Reinforcing this gap is the fact that community forest management area can only be granted by Forest Administrator after a consultation with relevant authorities and community leaders.

278

Furthermore, akin to the position with mainstream Tanzania, the minister is vested with the power to declare any land subject to certain conditions, a forest reserve in Zanzibar.

279

In such areas, except where license is given, activities including felling or extraction of trees, taking of forest produce, uprooting of vegetation, erection of buildings or livestock enclosures are prohibited.

280

Also, the Forest Administrator is empowered to revoke management arrangement in the event of violation of management agreement or failure of community to remedy violation within reasonable time after receiving notice.

281

Along similar line, section 91 criminalises the killing, destroying, capturing or taking of animals or plants without a special permit. In all, these provisions generally criminalise or restrain the subsistence use of land of indigenous peoples and undermine their tenure on land.

ii. Policy environment and REDD+

Zanzibar National Environmental Policy proposes the notion of „community forestry‟ which refers to targets such as the village, group and individuals as critical to planning and

276

Tanzania National Strategy (n 39 above) 29

277

The Forest Resources Conservation and Management Act Zanzibar (1996) preamble

278

The Forest Resources Conservation and Management Act Zanzibar (1996) section 38

279

The Forest Resources Conservation and Management Act Zanzibar (1996) section 15

280

The Forest Resources Conservation and Management Act Zanzibar (1996) section 32

281

The Forest Resources Conservation and Management Act Zanzibar (1996) section 47(1)

253

implementation of sustainable forestry programmes. It also advances a legislation regime which establishes a secure and flexible legal framework for community initiatives.

282

While this seems helpful, this policy essentially recognises the resource access of the communities and not tenure right. For instance, it limits their rights to management and protection of resources.

283

Also, instead of safeguarding land tenure, the policy merely encourages participation of community including private individuals and ngos in environmental programme.

284

A critical aspect of the Zanzibar Agricultural Policy of 2002 is to ensure that agricultural approach integrates crops, livestock and agro-forestry as major farming systems. As part of measure to combat degradation, the policy urges the promotion of agro-forestry practices.

285

Showing that it does not depart from the provisions of similar policy in mainland Tanzania, in its agricultural agenda, Zanzibar endorses the Land Act and affirms that it will ensure land ownership as established under the Land Act.

286

Arguably, in endorsing the Land Act, the law indirectly agrees with its weaknesses in terms of inadequate protection of indigenous peoples land use and tenure.

d. Implications of inadequate land tenure and use legislation

The foregoing regulatory framework in relation to land tenure and use while preparing for

REDD+ in Tanzania Mainland and Zanzibar has implications for a number of issues highlighted in the UN-REDD instruments, namely participation, carbon rights and benefit-sharing, as well as grievance mechanism and access to remedies. In the main, inadequate protection of land tenure and use may also have informed the restrictive approach of states to these issues equally relevant in the protection of indigenous peoples‟ land tenure and use.

i. Participation

The Environmental Management Act requires any one exercising power under the Act to observe principle of participation to involve people in the development of policies and processes and

282

The National Environmental Policy for Zanzibar (1992) section 5

283

The National Environmental Policy for Zanzibar (1992) section 2(e)

284

The National Environmental Policy for Zanzibar (1992) section 9

285

Zanzibar Agriculture Policy (2002) 12

286

Zanzibar Agriculture Policy (2002) 8

254

management of the environment.

287

The Land Act also provides that citizens of Tanzania can participate in decision-making on matters pertaining to occupation and use of land.

288

The

National Forestry Policy indicates that local communities and other stakeholders shall be included in the conservation and management of natural forests,

289

and requires environmental impact assessment (EIA) which requires consultation as a vital element.

290

The Forest Act recognises the right of given community, including forest-dependent community to form and participate in community forest management group.

291

The Beekeeping Zone Act allows the participation of entities including a local authority, village, group or NGOs.

292

In order to contribute to the preservation of the environment, the National Energy Policy similarly requires EIA.

293

The National Human Settlements Development Policy promotes participation of communities in the planning, development and management of settlement.

294

Similarly, the

Zanzibar National Environmental Policy encourages participation of community including private individuals and NGOs in environmental programme.

295

The Zanzibar Tourism Policy indicates that conservation and protection of the environment as well as EIA are a crucial component of the tourism agenda.

296

It encourages public participation and seeks to conserve the cultural way of life of the people.

297

However, in the context of preparation for REDD+, much remains to be desired about the foregoing provisions on participation. This is because, thus far, civil society has criticised the process which led to the formulation of the R-PP as not being participatory, arguing that while the process was supposed to gain experience from those „on the ground‟, this was not well reflected.

298

For instance, of the thirty organisations indicated in the report as having given input

287

The Environmental Management Act (2004) section 7(3)(c)

288

The Land Act (1999) section 1(1)(i)

289

The National Forestry Policy (1995) section 4(3)(1)(1)

290

FAO Environmental impact assessment: Guidelines for FAO field projects (2012); A Boyle „Developments in the international law of environmental impact assessments and their relation to the Espoo Convention‟ (2011) 20 Review of

European Community & International Environmental Law 227–231

291

Tanzania Forest Act (2002) art 47(g)

292

Tanzania Forest Act (2002) art 16

293

Tanzania Forest Act (2002) art 148(iii)

294

National Human Settlements Development Policy (2000) section 3(2)(v)

295

The National Environmental Policy for Zanzibar (1992) section 9

296

Zanzibar Tourism Policy (2005) para 4.1.6

297

Zanzibar Tourism Policy (2005) para 4.1.7

298

„TZ – REDD Newsletter‟ Issue 3 January 2011 http://www.tfcg.org/pdf/TZ%20REDD%20Newsletter3.pdf (accessed 14

January 2014)

255

into the preparation of documentation,

299

none is specifically focused or based on indigenous peoples. Contrary to the approach taken by the state while formulating the R-PP, among other things, the civil society expects the authors of R-PP to propose clearer approach to consultation and incorporation of feedback into decision-making.

300

Arguably, the weakness in consultation demonstrates the gap in the normative basis for the process and reflects the conventional approach of non-recognition which has for long typified state relationship with indigenous peoples. This is somewhat linked with the notion that land and forests are generally state owned and the claim of indigenous peoples to this is subordinate.

ii. Carbon rights and benefit-sharing

The Draft National Safeguards define carbon rights in the context of Tanzania to mean:

[t]he rights to enter into contracts and national or international transactions for the transfer of ownership of greenhouse gas emissions reductions or removals and the maintenance of carbon stocks.

301

It describes benefits as including „financial benefits such as payments for carbon, employment or investments in local infrastructure‟.

302

It also entails non-financial benefits including „improved access to forests, land and non-timber forest products, and enhanced local environmental quality‟.

303

It further indicates that the „rights to carbon credits are important because REDD+ credits and other carbon benefits will most directly accrue to whoever holds them.‟

304

Hence, in accordance with principle 2 of the safeguard, Tanzania committs itself to implement REDD+ initiative in such manner that enables ownership of carbon rights resulting from either statutory or customary rights to natural resources. Accordingly, in addition to the recognition of the rights to carbon of

299

As above

300

As above

301

United Republic of Tanzania Tanzania REDD+ Social and Environmental Safeguards (June 2013) Draft, Annex 1: Glossary of Key Terms (Tanzania REDD+ SES) 23

302

As above

303

As above

304

Tanzania REDD+ SES (n 301 above) 8

256

forest-dependent communities, it shall ensure that they are trained in the measurement and evaluation of carbon „in order to recognise their carbon rights‟.

305

However, in addition to not specifying the modalities for sharing the benefits that will accrue, it is not clear how the provisions in relation to carbon rights in its national safeguards can be achieved without further reforming its legislation and policies on REDD+ implementation. A close examination of these laws reveals an inconsistent position with the National Safeguards pointing at the conclusion that management and use of resources may not include forest tenure security. This is the conclusion that can be drawn from the reliance placed by the National

Safeguards on national legislation such as the Forest Act. For example, while the Forest Act aims at developing individual and community rights arising from customary law,

306

its inherent drawback is that it seeks to achieve this only through joint management which allows for a village council to manage a forest reserve with community groups.

307

Although the

Environmental Management Act allows a space for benefit-sharing in the design of environmental plans for national protected areas,

308

that is only possible in the restricting context of the power of the minister to declare a given land as environmentally protected area.

309

This approach also applies in relation to the Village Land Act, as the Environmental Management Act empowers the minister to prescribe the conditions to which customary rights of occupancy should be enjoyed.

310

The National Environmental Policy (NEP) notes that „the ownership of land and land resources, access to and the right to use them are of fundamental importance‟. This is necessary so as to encourage care for the environment and enable people control their resource base.

311

Again distinguishable from the right to carbon, section 27 of the NEP merely commits the state to grant access to land resources to comunities. In fact, the Zanzibar National Policy essentially recognises the resource access of the communities and not tenure.

305

Tanzania REDD+ SES (n 301 above)10

306

Forest Act (2002) art 3(b)

307

Forest Act (2002) art 16(c)

308

Environmental Management Act (2004) section 49(3)(e)

309

Environmental Management Act (2004) section 47

310

Environmental Management Act (2004) art 53

311

National Environmental Policy (1997) section 26

257

Taken together, the above approach merely enables members of a village living in or near the forest or part of to manage a forest reserve for purposes of use and benefit.

312

It is incapable of an interpretation that confers ownership of benefits from carbon rights on groups such as indigenous peoples. Ensuring that proper ownership of land to the forest-dependent signifies that they will have the rights to contract and share the profit from carbon trading. This is not assured in the legislation. In all, these provisions may potentially undermine the entitlement of indigenous peoples to contract carbon rights and appropriate benefits as envisaged under the

Tanzania National Safeguards.

Hence, it is not surprising that at the RPP preparation, recommendations were made offering insight into areas of concerns particularly of indigenous peoples.

313

The civil society urges the authors of R-PP to propose a mechanism for trailing management and distribution of REDD benefits.

314

Other notable recommendations emphasise the need to clearly state an approach on how land, forest and carbon tenure issues will be addressed in the development and implementation of the proposed REDD strategy and elaborate on the specific capacity constraints of forest management agencies, local governments and other stakeholders.

315

Thus far, the attention of the National Strategy and Draft Safeguards to these issues seems limited and buttresses the scepticism that benefits from carbon will not solely apply in the interest of indigenous peoples. In proof of this viewpoint, in promoting the PFM, the National

Strategy draws a distinction between the CBFM and JFM arguing that the two approaches differ in terms of forest ownership and benefit flows. CBFM allows trees to be owned and managed by a village government through a Village Natural Resources Committee (VNRC). The JFM allows for the management of state owned forests, with management responsibilities and returns divided between the state and the communities.

316

Effectively in this context, ownership of carbon rights cannot be interpreted as belonging to communities such as indigenous peoples. Rather, what is clear is that the National Strategy allows user‟s rights to local communities or forest-dependent communities. This is because in an arrangement such as the CBFM where trees are owned, the

312

Forest Act (2002) art 42(1)

313

„Tanzanian civil society comments on R-PP‟- pdf.wri.org/rpp_country_table_tanzania.pdf (accessed 25 December 2013);

„Civil society organisations proposes recommendations for the National REDD Strategy‟ - http://www.tnrf. org/node/21152 (accessed 25 December 2013)

314

As above

315

As above

316

Tanzania National Strategy (n 39 above) xi

258

communities merely enjoy such ownership as proxies for government. This sense of ownership is certainly not the same as indigenous peoples‟ concept of land tenure and use. In an arrangement where ownership of the forest remains uncertain, it will be difficult if not impossible to confer benefits solely on indigenous peoples.

iii. Grievance mechanism and access to remedies

Despite its controversial provisions, the Environmental Management Act is silent on the options available where the decision to declare an area as environmentally protected is opposed. Such opposition can be envisaged from the implementation of provisions dealing with zoning, restrictions of access and use, and any other appropriate measure for use of the area.

317

Furthermore, there are provisions that criminalise the failure by anyone to comply with a regulation declaring a land as environmentally sensitive for protection.

318

Also, grievance may result where land areas are declared as closed „to livestock keeping, occupation and other specified activities‟.

319

This is not attended to by the Act. What seems a remedy can be found in the Zanzibar Environmental Policy which offers some hope in its prescription that government will assist the local communities in resolving conflicts over the use of local resources.

320

However, the provision falls short of the expectation of safeguards which require that institutions of indigenous peoples should be respected in resolving disputes arising from REDD+ process.

It is thus not a surprise that at the R-PP preparation, among other things, the civil society urges the authors of R-PP to explain mechanism for resolving disputes.

321

In addition to not addressing this gap, nothing in terms of grievance handling mechanism has changed even under the Draft

Safeguards for REDD+ in Tanzania. Principle 8 of the Safeguards confirms that existing complaint and dispute resolution mechanism at both local and national levels will be used for

REDD+ related claims such as the disputes related to benefit-sharing, participation, and rights to lands, territories and resources that communities have been using or have acquired. From the existing framework, it seems clear that the main focus is on formal means of dispute resolution which it lists as including the Land Courts, Magistrate Courts, High Courts in the case of

317

Environmental Management Act (2004) section 49(3)

318

Environmental Management Act (2004) section 51(3)

319

Environmental Management Act (2004) section 52(f)

320

The National Environmental Policy for Zanzibar (1992) section 2(e)

321

n 313 above

259

mainland Tanzania, and The Magistrate Court The Kadhis Court, High Court Act of 1985, Land

Tribunal in the case of Zanzibar.

322

It canvasses the need for stakeholders‟ forum in the areas implementing REDD+ to handle conflicts that does not need the attention of courts. However, it does not specify for the use of indigenous peoples‟ institutions of dispute resolution nor indicate modalities to encourage this in the implementation of REDD+ activities. The preference for formal court system and the idea of stakeholder‟s conference indicate a top down approach which may compromise indigenous peoples‟ access to remedy in REDD+ matters.

2. Zambia and readiness for REDD+

Zambia became one of the pilot countries for the UN-REDD Programme in 2010. Since that period, a National Programme Document (NPD) document has been formulated and approved for REDD+ preparation.

323

The legal framework for REDD+ has been profiled in a report on the study on legal preparedness for REDD+ in Zambia.

324

It is currently in the first phase of preparing for REDD+.

325

Although a national REDD+ Strategy was expected to be completed in the second quarter of 2013,

326

this was not possible. The process has been extended to December

2014 by the UN-REDD Policy Board which approved a request made by Zambia for an extension on 8 October 2013.

327

However, as shall be demonstrated by examining key steps taken so far in the Zambia REDD+ readiness activities, the emerging regulatory environment inclusive of readiness institutions does not adequately safeguard indigenous peoples land tenure and use.

a. Readiness institutions and composition

In preparing for REDD+ activities, Zambia benefits from the Integrated Land Use Assessments

(ILUA) which aimed at identifying key information needs related to agriculture and forestry for relevant national policies and action plans.

328

However, the management and coordination of

322

Tanzania REDD+ SES (n 301 above) 18

323

UN-REDD Programme „National Programme Document-Zambia‟(17-19 March 2010) UN-REDD/PB4/4ci/ENG, (Zambia

Programme Document)

324

International Development Law Organisation (IDLO), Food and Agriculture Organisation of the United Nations (FAO) „Legal

Preparedness for REDD+ in Zambia‟ (November 2011) (Zambia Legal Preparedness)

325

„REDD in Zambia‟ http://theredddesk.org/countries/zambia (accessed 25 December 2013)

326

As above

327

UN-REDD Programme „Demande de décision intersession du Conseil d‟orientation concernant le prolongement sans frais additionnel du programme national de la Papua Nouvelle Guinée (PNG)‟ 8 October 2013

328

Kalinda et al (n 90 above) 1

260

REDD+ are still emerging. Presently, a governance structure is being established to coordinate and manage its implementation. As part of activities, an analysis of the legal and policy environment has been completed for REDD+ readiness and stakeholder engagements are still being carried out.

329

The present REDD structure in Zambia consists of a REDD Coordination Unit (RCU), whose activities are supported by REDD+ Secretariat, REDD+ Steering Committee and Joint Steering

Committee of the Environment and Natural Resources Management and Mainstreaming

Programme (ENRMMP).

330

The RCU has the role of administering the day to day functioning of the programme, facilitating workshops and consultants as well as carrying out monitoring and evaluation.

331

The main roles of the National REDD+ Secretariat are to support the policy board, handle external relationship with partners and ensure quality assurance and oversight over the programme.

332

Further funtions of the REDD+ Steering Committee include the provision of guidance on budget management and programme activities, facilitation of programme activities across institutions and ensuring effective partnering with implementing ministries.

333

Also, the

Steering Committee defines the functions, responsibilities and powers of the implementing agencies, makes policy related recommendations to the ENRMMP, provides guidance on the implementation of REDD activities by various institutions, reviews work plan and proposed activities as well as identifies strategies for REDD.

334

The ENRMMP is established within the

Ministry of Tourism, Environment and Natural Resources (MTENR) to coordinate environmental resource management priorities and policies across ministries.

335

However, except for the limited space given to the representatives of NGOs, House of Chiefs and Community Based Organisations (CBOs), the above institutions, in terms of their composition, are largely dominated by representatives of governmental agencies. For instance, the RCU is hosted within the Forestry Department of the Ministry of Tourism, Environment and

329

„Zambia: The REDD Desk‟ http://theredddesk.org/countries/zambia (accessed 18 November 2013)

330

As above

331

UN-REDD Programme „National Programme Document – Zambia‟(17-19 March 2010) UN-REDD/PB4/4ci/ENG, (Zambia

Programme Document) 67

332

As above

333

Zambia Programme Document (n 323 above) 119

334

Zambia Programme Document (n 323 above) 119

335

Zambia Programme Document (n 323 above) 39

261

Natural Resources and serviced by the REDD+ secretariat existing within the Forestry

Department to provide administrative assistance in day-to-day activities and coordination.

336

The

Steering Committee comprises Ministry of Tourism, Environment and Natural Resources,

Ministry of Agriculture and Cooperatives, Ministry of Lands, Ministry of Energy and Water

Development, Ministry of Community Development and Social Services, Ministry of Justice,

Ministry of Finance, Ministry of Commerce Trade Industry, Ministry of Local Government and

Housing, NGOs, Private Sector, House of Chiefs and CBOs.

337

The ENRMMP consists of government ministries including Ministry of Tourism, Environment and Natural Resources,

Ministry of Lands, Ministry of Agricultural and Cooperatives, Central Statistical Office,

Environmental Council of Zambia, Zambia Wildlife Authority, Donors and CSOs.

338

It may be argued that the composition of these institutions in this manner is necessary considering that REDD+ issues are cross-sectoral entailing the mandate of different ministries, and that the inclusion of external actors such as the Non-Governmental Organisations (NGOs),

House of Chiefs and CBOs should ensure that indigenous peoples issues are mainstreamed in the operation of these institutions. This reasoning is, however, questioned considering that there is no specific representation of forest-dependent communities in the ENRMMP.

339

b. Regulatory framework and indigenous peoples’ lands

It is noteworthy that forests in Zambia are categorised according to the land on which it rests.

340

Divided into state land, customary land and land under leasehold, in that context, forests exist at the national level as state reserves and on customary land vested in the Presidency while trees on leasehold arrangement belong to the leaseholder for a term of years.

341

The examination of regulatory framework for REDD+ in Zambia, as evidenced below, reveals that the policy and legal environment within which Zambia is preparing for REDD+ activities is either outdated or inadequate.

336

Zambia Programme Document (n 323 above) 121-122

337

As above; the structure of government ministries in Zambia is, however, still evolving. Government is renaming ministries such that Forestry and Environment are now under the Ministry of Lands

338

Republic of Zambia „Integrated Land Use Assessment (ILUA) II, Project Plan‟ 31

339

UN-REDD Programme „Report on the UN-REDD Mission to Zambia 28-29 th

September 2009‟ 06 November 2009

340

Zambia Programme Document (n 323 above) 46

341

Zambia Programme Document (n 323 above) 14, 15 and 46 profiles rather incorrectly, private ownership of land as part of tenure structure in Zambia

262

i. Legislation environment and REDD+

The legislation environment in which the government is preparing for REDD+ is inadequate in its protection of indigenous peoples‟ land tenure and use. To begin with, the Constitution of

Zambia has interesting provisions which relate to sustainable use of land and environment and applicable in the context of climate change response initiative.

342

Under the fundamental directives section, article 112(i) affirms the aspiration of the Zambia state to promote awareness of the need to manage land, air and water resources in a sustainable manner for the present and future generation. Also, the state undertakes to provide a clean and healthy environment for all in

Zambia.

343

Although the word „forest‟ appears nowhere in the constitution, viewed as a land resource, it can be argued that these provisions extend to sustainable management of the forest in

Zambia. However, the constitution of Zambia contains a number of provisions which undermine its usefulness for the implementation of REDD+ activities. For instance, the right not to be discriminated against under article 23 of the Zambia constitution does not apply with respect to non-citizens of Zambia, and matters under customary law.

344

This provision may operate as a legal basis for justifying unfair measures or initiatives against the traditional tenure system for which indigenous peoples are known.

Similar criticisms can be made of the Lands Act of 1995 which has a range of provisions which have implications for the implementation of REDD+ activities in Zambia, particularly indigenous peoples‟ land tenure and use. According to section 3(4) of the Act, land held under customary tenure cannot be alienated by the president without considering the local customary laws on land tenure,

345

consultation with the Chiefs and the Director of National Parks and

Wildlife Service, in the case of a game management area,

346

consultation of anyone likely to be affected by the alienation,

347

and prior approval of the Chief and local government where land is situated.

348

342

Republic of Zambia Constitution (1996)

343

Republic of Zambia Constitution (1996) art 112 (h)

344

Republic of Zambia Constitution (1996) art 23(4)(d)

345

Lands Act (1995) Cap 184, section 3(4)(a)

346

Lands Act (1995) section 3(4)(b)

347

Lands Act (1995) section 3(4()c)

348

Lands Act (1995) section 3(4)(d)

263

However, the foregoing provisions are largely curtailed by other provisions within the Act. In addition to the general provision of the Act that vests all land in Zambia in the president,

349

the

Act is limited in its relevance in other respects. The conversion of customary tenure to leasehold which may help in formal security of the land and be useful in accessing the land of indigenous peoples for use and benefit in implementing REDD+ activities is only possible with the approval of chiefs and local authorities.

350

This can be problematic as no criteria are prescribed under the

Act to inform chiefs and the local authorities in reaching a decision one way or the other. This leaves the process open to a wide discretion which may be adversely exercised against the interest of indigenous peoples in securing their tenure. Also, even where land is possessed under leasehold title by any person including indigenous peoples, another limitation exists in that no person is permitted to„sell, transfer or assign any land without the consent of the president‟.

351

In

Bridget Mutwale v Professional Services Limited, the Supreme Court of Zambia held that failure to obtan consent for a sub-lease renders the whole of the contract including the provision for payment of rent unenforceable.

352

There are other concerns that can militate against the application of the Lands Act to REDD+ activities in protection of indigenous peoples. This is the doctrine of „vacant land‟ which though colonial in history found itself entrenched in the Zambian land law regime. According to section

9(1) of the Lands Act, it is unlawful for anyone to continue to occupy a vacant land. As what amounts to a „vacant land‟ is not defined anywhere under the Act, this provision can be used in criminalizing the occupation and use of indigenous peoples of forests and its resources as well as dispossess forest-dependent populations of their traditional territories. This possibility is reinforced by another provison of the Act which allows for the eviction of persons occupying undeveloped lands

353

The Lands Acquisition Act (LAC) of 1970 constitutes a weak link in the legal environment within which REDD+ activities are being pursued in Zambia. The LAC allows the President, where he deems it necessary in the interests of the public to compulsorily acquire any property of

349

Section 3(1) of the Lands Act provides that notwithstanding anything to the contrary contained in any other law, instrument or document, but subject to this Act, all land in Zambia shall vest absolutely in the President and shall be held by him in perpetuity for and on behalf of the people of Zambia

350

Lands Act (1995) section 8(2)

351

Lands Act (1995) section 5

352

Bridget Mutwale v Professional Services Limited (1984) ZR 72 (SC) 76

353

Lands Act (1995) section 9(2)

264

any description.

354

It is, however, silent on whether there will be the consideration for free, prior informed consent of the person in the exercise of such authority. Indeed, this is unlikely in that the owner of the land or property to be acquired is only entitled to notification which, among others, is required to contain the description of the land to be required and date for raising objection if any.

355

Also, in what confirms a detrimental approach to the interest of forest- dependent communities who may not have tangible structures on land as evidence of possession, section 15(2) of the LAC does not allow for compensation in respect of undeveloped land or unutilised land.

For purposes that are consistent with the aims of REDD+ programme, the Zambia Forest Act designates some land as national and local forests.

356

For the national forests, these purposes are for security of forest resources which are of national significance, conservation of the ecosystem, improved management of forest resources as well as management of water catchments and head waters.

357

In relation to the local forests, these also include security of forest resources and protection of eco-system of „local strategic importance‟, enhanced management and sustainability of forest resources at local level.

358

Upon the endorsement of the Commission established under the Act, local community or owners or occupiers of an area in a forest, the

Forest Act empowers the minister to establish institutional management structure for the forests such as the „Joint Forest Management‟.

359

In what seems as an acknowledgment of their presence on the land, the law further requires for the consent of the local community before an area can be declared as JFM.

360

However, there are a number of gaps in the Forests Act which weaken its potential relevance for the protection of indigenous peoples in REDD+ activities. Unless lawfully transferred under any written law, according to the Forests Act of 1999, the ownership of all trees and forests produce derived from customary areas, National Forests, Local Forests, State Lands and open areas is

354

Lands Acquisition Act (1970) Cap 189

355

Lands Acquisition Act (1970), sections 5 & 7

356

The Forests Act (1999) sections 9 and 17

357

The Forests Act (1999) section 12 (a)-(d); also see section 20 dealing with the purpose of local forest for similar provisions exempt the qualification of „national significance‟

358

The Forests Act (1999) section 13

359

The Forests Act (1999) section 25(1)

360

The Forests Act (1999) section 25(2)

265

vested in the President to hold on behalf of the people of Zambia.

361

Also, strengthening the president in the exercise of his power on the recommendation of the Commission, he may trigger the LAC to compulsorily acquire any land for the purpose of national and local forests if it is in interest of the public to so act.

362

Similarly, despite the arrangements such as the JFM, license is required before activities such as felling, cutting taking and collection and removal of forest product can be carried out in a forest,

363

while a license is required to enter national forest.

364

Since forests are often linked with water sources, the Water Resources Management Act of 2011 is a vital component of the legal framework deserving consideration in the preparing for REDD+ activities in Zambia. It aims at ensuring forest-related objectives such as the protection, conservation and sustenance of the environment, environmental impact assessment where necessary, fostering collaboration with appropriate authorities including forestry and ensuring right of access by members to places related to a water resource.

365

The Act, however, confers the powers to execute certain functions on the President and the Board of the Water Management

Authority which may have undermining effect on indigenous peoples land tenure and use. For instance, the president may, in accordance with the provisions of LAC compulsorily acquire any land for the purpose of protecting a water resource area.

366

The Board can after consulting an appropriate authority or conservancy authority be declared as a water resource area.

367

In contrast with the approach to the protection of the environment offered under the fundamental directive of the states in the Zambia Constitution, the Environmental Management Act of 2011 establishes the right to clean, safe and healthy environment.

368

However, what would have amounted to inconsistency with the provision of the constitution is avoided by the clause which subjects the superiority of the Act and particularly the enjoyment of the right to clean, safe and healthy environment to the provision of the Constitution.

369

While it directs that as with other

361

The Forests Act (1999) section 3

362

The Forests Act (1999) sections 11 and 19

363

The Forests Act (1999) section 24(1)(a)

364

The Forests Act (1999) section 16(1)

365

Lands Acquisition Act (1970) section 30 (a), (c), (e) and (f) respectively

366

Lands Acquisition Act (1970) section 41

367

Water Resources Management Act (2011) section 29(1)

368

Environmental Management Act (2011) section 4

369

See sections 3 and 4(1) which respectively describe the limit of the superiority clause and the right to to clean, safe and healthy environment

266

sectors, the forestry resources shall be managed in line with the Forests Act,

370

the

Environmental Management Act requires the state through the minister to prepare a State of

Environment Report and develop National Environmental Action Plan as well as develop environmental management strategies.

371

Proponents of projects likely to have adverse effects on the environment are also required to conduct strategic environmental assessment.

372

The Act empowers the Minister to declare area of land environmentally fragile, taking into consideration such factors as natural feature of the area, cultural features, the interests of the local communities and compliance with any international obligations to which Zambia is a party.

373

As significant as the foregoing provisions are, the Act does not make any reference to land tenure and use of indigenous peoples. It also does not make reference to REDD+ activities to which Zambia is committed. While this may be excused as unnecessary considering its provision that Forestry Act shall regulate forestry resources,

374

this can be questioned. First, this Act emerged after the commencement of the REDD+ activities in Zambia. Hence, one would expect that given its recent nature, it will include the issue of REDD+ as part of its provision dealing with integrated management of the environment. Also, one would expect that the protection and promotion of tenure and use by indigenous peoples and forest-dependent communities are clearly articulated as crucial to the implementation of environmental programme and more so, REDD+ activities. However, this is not the case.

A provision of similar consequence exists in the Town and Country Planning (Amendment)

Act

375

which empowers the president, upon the recommendation of the Minister, to acquire land if such is required for inclusion in a structure plan or local plan or approved structure plan or approved local plan.

376

The possibility that this provision can negatively impact REDD+ activities is real considering that forestry is categorised as one of the items that may be included in the exercise of the ministerial power.

377

Hence, where Zambia decides to establish a regional

370

Environmental Management Act (2011) section 76(1)(c)

371

Environmental Management Act (2011) sections 20, 21 and 22 respectively

372

Environmental Management Act (2011) section 23

373

Environmental Management Act (2011) section 24(4)

374

Environmental Management Act (2011) section 76(1)(c)

375

Town and Country Planning (Amendment) Act (1997)

376

Town and Country Planning (Amendment) Act (1997) section 40

377

Town and Country Planning (Amendment) Act (1997) second schedule (sections 16 and 44) matters for which provision may be made in a development plan

267

plan for REDD+ projects, it could use the Town and County (Amendment) Act as a legal tool to evade land use management rights of local communities on customary lands.

378

The link that forests often have with mineral resources makes the Mines and Minerals

Development Act of Zambia key in the implementation of REDD+ activities.

379

According to section 15(1) (c) of the Act, the land in respect of which prospecting license may be sought may include the national or local forests as defined by the Forests Act.

380

It is thus not strange that the

Act contains provisions which may be used in undermining the rights of forest-dependents. For instance, except for the requirement that environmental impact study is necessary in any area where mining activities are being proposed,

381

no obligation in terms of consultation and protection of tenure and benefit-sharing is anticipated to the communities that live on such land.

Indeed, this expectation is impossible in the light of the provision of section 3 of the Act that vests rights of ownership for the prospecting and disposing of minerals in the President notwithstanding any right, title or interest that any person may possess in or over the soil in or under which minerals are found in Zambia.

382

ii. Policy environment and REDD+

The policies indicated in the NPD and Legal Preparedness document as critical to the implementation of REDD+ activities in Zambia include the Vision 2030,

383

National

Environmental Action Plan,

384

National Policy on Environment,

385

Forestry Policy,

386

Zambia

Forest Action Plan,

387

National Agricultural Policy,

388

Irrigation Policy and Strategy,

389

National

Biodiversity Strategy and Action Plan,

390

National Energy Policy,

391

and National Water

378

Zambia Legal Preparedness (n 324 above) 20

379

Mines and minerals Development Act (2008)

380

„Local forest‟ means an area declared as such under section 17 of the Forest Act, while „National Forest‟ means an area declared as such under section 8 of the Forests Act, see section 2 of the Mines and Minerals Development Act ( 2008)

381

Mines and minerals Development Act (2008) section 25(5) and 36(4)

382

Mines and Minerals Development Act (2008) section 3

383

Zambia „Vision 2030 A prosperous Middle-income Nation by 2030‟ (Zambia Vision 2030)

384

National Environmental Action Plan (1994)

385

National Policy on Environment (2007)

386

Forestry Policy (1998)

387

Zambia Forest Action Plan (ZFAP), (1995)

388

National Agricultural Policy (1995)

389

Irrigation Policy and Strategy (2004)

390

National Biodiversity Strategy and Action Plan (1999)

391

National Energy Policy (2008)

268

Policy.

392

These policies as indicated in the NJP and Legal Preparedness document are linked with different aspects of forest governance.

In its Vision 2030, Zambia indicates its target and goals for a „prosperous middle income nation‟, basing this drive on key principles including sustainable development, respect for human rights, democratic principles, private -public partnership and good traditional values.

393

It undertakes to pursue development policies compatible with sustainable environment and natural resource. As one of its main challenges, it identifies the maintenance of a safe, sustainable and secure environment.

394

Zambia Vision 2030 also considers land as critical to the realisation of its goals.

Hence, it seeks to improve access to land by „both men and women‟,

395

and considers a „secure, fair and equitable access and control of land‟ as critical to social economic development of

Zambia.

396

It also seeks to ensure access to information for participation purpose in socioeconomic development.

397

However, Vision 2030 promotes principles which may be detrimental to the secured ownership and access of forest-dependent populations to land in implementing REDD+ activities. At least, this can be said of its component dealing with mining and agriculture which projects that,

Zambia shall increase exploration of mineral resources by up to 30% and agricultural productivity and land under cultivation.

398

Arguably, these activities may lead to further degradation of forests and displacement of the forest-dependent peoples. While the statement that government shall reduce environmental degradation and promote principles such as human rights, traditional values and sustainable development seems hopeful, this is of doubtful help to the forest- dependent peoples in Zambia. The policy does not identify the land tenure and use of these groups for protection let alone the potential benefits which should accrue should they be involved in emerging activities such as REDD+.

392

National Water Policy (1994)

393

Other principles are fostering family values; (v) a positive attitude to work; (vi) peaceful coexistence, see Zambia Vision 2030

(n 383 above) 2

394

Zambia Vision 2030 (n 383 above) 4

395

Zambia Vision 2030 (n 383 above) 5

396

Zambia Vision 2030 (n 383 above) 30

397

Zambia Vision 2030 (n 383 above) 6

398

Zambia Vision 2030 (n 383 above) 30

269

The National Policy on Environment identifies deforestation as a major consideration in addressing climate change,

399

and recognises the importance of the participation and reward of the local communities in the management of forest resources.

400

Particularly, a strategy for the implementation of the policy is to engage local communities in afforestation and rehabilitation of bare, fragile or erosion-prone areas,

401

and establish a forum where interested parties in forestry issues can share ideas.

402

The guiding principles of the policy indicate that a comprehensive land tenure and use policy should embody property and resource rights as well as the need to grant permission to community based organisations in managing and regulating resources on common property in their respective areas.

403

Nonetheless, these provisions are doubtful for the protection of forest-dependent peoples‟ interest in REDD+. For instance, the provision dealing with tenure security is only ensured for „smallholder farmers‟.

404

Similarly, although the policy expresses that customary rights to land and resource use will be recognised and protected,

405

with no strategy indicated as to how this is to be achieved, this statement of policy is at best an expression of intention. It contrasts poorly with the categorical affirmation made elsewhere in the policy that state will increase rents reflecting market value with the view of promoting sustainable leasehold land.

406

Of importance to forest management in Zambia is the National Forest Policy of 1998 which has been criticised on a number of grounds. Foremost of the criticisms is its lack of implementation as a result of want of active Forestry Act.

407

Among other things, it has also been shown that there is general gap in the policy to adequately address the issues of collaboration between local communities and government, involvement of local communities and other stakeholders in forest management. Other concerns made in relation to the policy are the absence of guidelines on forest resource tenure, stakeholders‟ role, costs as well as benefit-sharing arrangements.

408

Against this backdrop, a review has been carried out leading to the formulation of a draft

399

National Policy on Environment (2007) para 7(2)(4)(2)(a)

400

National Policy on Environment (2007) para 7(2)(4)(2)(e)

401

National Policy on Environment (2007) para 7(2)(4)(3)(j)

402

National Policy on Environment (2007) para 7(2)(4)(3)(o)

403

National Policy on Environment (2007) para 7(1)(13)(2) (b) ,(c) and (d)

404

National Policy on Environment (2007) para 7(1)(13)(2)

405

National Policy on Environment (2007) para 7(1)(13)(2)( c)

406

National Policy on Environment (2007) para 7(1)(13)(2)( h)

407

Zambia Programme Document (n 323 above) 43

408

Zambia Programme Document (n 323 above) 44

270

National Forest Policy 2009 which was developed along Zambia‟s preparation for REDD+ readiness.

409

The Draft National Forest Policy for 2009 still awaits the approval of parliament.

410

The Draft National Forest Policy 2009 seeks to encourage the collaboration of stakeholders including local communities and individuals to promote dialogue, ownership and equitable benefit-sharing arising from sustainable management.

411

It purports to offer clarity with respect to „stakeholders' rights, obligations and benefits on trees, forests and forest associated products and services‟.

412

Toward realizing this end, the objectives of the policy include adequate protection of the forest with the view of empowering local communities and encouraging the development of alternatives to forest products and services.

413

For this purpose, the strategies include incorporation in the Forest Act provisions that will ensure participation of local communities by defining their role, responsibilities and benefits as well as incentives sharing.

414

Another strategy relating to tenure seeks to ensure that classification of land for forest protection and management does not compromise traditional tenure system.

415

Nonetheless, in addition to not articulating clearly what these role and responsibilities are, the Draft National Policy offers no significant improvement on the Policy of 1998 in relation to the source and the mode of the proposed incentive sharing. Also, it does not depart from the principle which vests ownership of all trees in the President to hold on behalf of the Zambians. Yet, this may be a hindrance to the effective exercise of role, responsibilities and benefits contemplated for groups such as indigenous peoples or forest-dependent in relation to implementation of REDD+ activities.

Aimed at serving as a robust document on the direction for agriculture in Zambia, the National

Agricultural Policy

416

identifies forest-related issues such as rapid deforestation and land degradation as some of the environmental challenges to agricultural sector in Zambia.

417

It proposes solutions such as the promotion of conservation farming, afforestation and agroforestry as environmental friendly farming system and strategy to achieve sustainable

409

Zambia Legal Preparedness (n 324 above) vii

410

Zambia „Plans and policies‟ http://theredddesk.org/countries/zambia/plans-policies (accessed 19 December 2013)

411

National Forest Policy (2009) 3

412

National Forest Policy (2009) 4

413

National Forest Policy (2009) 14

414

As above

415

National Forest Policy (2009) 30

416

National Agricultural Policy (1995)

417

National Agricultural Policy (1995)7

271

agricultural practices.

418

In describing the issue of land tenure, the National Agricultural Policy merely conceives security of land tenure as a means to ensuring the utility of land to its fullness by farmers.

419

Although presented as relevant to the implementation of REDD+ activities in

Zambia,

420

the National Agricultural Policy does not consider the land tenure and use of forest- dependent communities as a significant issue which may become compromised if its solutions and propositions are strictly applied. Also, in endorsing the expansion of commercial farming to attract investment without providing appropriate safeguards, the policy conflicts with REDD+ strategies as it signifies that farming developments can expand to forested lands.

421

The National Energy Policy

422

implicates forests in a number of areas. Foremost is that it identifies the forests as a component of energy sources for Zambia.

423

As the main source of woodfuel particularly for the low income earners, forests, according to the National Energy

Policy, will continue to dominate the energy consumption of Zambia.

424

As a way to address this trend, the National Energy Policy contemplates a switch from what it considers as a „low quality energy sources‟ to an improved energy sources such as electricity, petroleum products, biofuels and biogas for domestic use.

425

It also underscores the need for a regulatory framework to coordinate activities between institutions responsible for energy, agriculture and forestry.

426

Other measures suggested in the National Energy Policy include improved management and use of forests resources,

427

promotion of forest plantation,

428

and agroforestry.

429

However, in addition to non-reference to land tenure anywhere in the policy, there are initiatives aimed at improving energy resources which particularly exclude groups such as indigenous peoples or forest-dependent communities. For instance, the prevention of exploitation of local peoples mentioned in the policy is only in respect of biofuel projects.

430

Arguably, this may not include the exploitation of these peoples in forest related projects such as REDD+. In all, the gap

418

National Agricultural Policy (1995) 12

419

National Agricultural Policy (1995) 23

420

Zambia Legal Preparedness (n 324 above) 60

421

Zambia Legal Preparedness (n 324 above) 24

422

National Energy Policy (2008)

423

National Energy Policy (2008) para 2(1)

424

National Energy Policy (2008) para 2(1)(1)(1)

425

National Energy Policy (2008) para 5(2)

426

National Energy Policy (2008) para 5(2)(2) (c)(ii)

427

National Energy Policy (2008) para 5(2)(2)(1)(a)(i)

428

National Energy Policy (2008) para 5(2)(2)(1)(a)(iii)

429

National Energy Policy (2008) para 5(2)(2)(1)(d)

430

National Energy Policy (2008) para 5(2)(2)(2)(d)(iii)

272

in tenureship affects negatively consultation, carbon rights, access to benefit as well as remedies of indigenous peoples and forest-dependent communities in Zambia.

c.

Implications of inadequate land tenure and use legislation i. Participation

So far, consultation or stakeholder engagement has been carried out mainly during the development of the NPD. Prepared as the first step toward implementing REDD+ activities, the

NPD profiles steps so far taken in preparing Zambian institutions and stakeholders for effective nationwide implementation of the REDD+ mechanism.

431

In this regard, meetings were held in

Lusaka in 2009.

432

The meetings aimed at sensitizing stakeholders including agencies and NGOs working on forest related issues in developing the NPD.

433

Issues relating to engagement approach featured at the meetings with the result that emphasis was placed upon UN-REDD

Safeguards such as the Operational Guidance on the Engagement of Indigenous Peoples and other Forest-Dependent Communities.

434

Participants also discussed the steps that must be taken to ensure representation, participation, transparency and accountability in the UN-REDD

Programme for Indigenous Peoples and Forest-Dependent Communities.

435

Particularly, participants stressed the need to clarify land tenure arrangements in preparing for REDD activities.

436

As part of the process, stakeholders‟ views were also made at the validation meeting held for the

NPD. According to the Validation meeting minutes, stakeholders discussed issues relating to the management of forest resources and proposed certain changes to the NPD.

437

Additionally, it was suggested that law reform and harmonisation of legislation related to forestry is necessary for an effective implementation of REDD+.

438

In 2011, workshops were held with participants drawn from different governmental departments, NGOs, forest officers representing all Zambia‟s nine

431

Zambia Programme Document (n 323 above) 7

432

UN-REDD Programme „Stakeholder sensitization meeting report‟ Chrismar Hotel Lusaka, 7th May 2009; Ministry of

Tourism, Environment and Natural Resources Forestry Department „UN REDD Stakeholders‟ consultative meeting report‟

Mulungushi International Conference Centre, 29 September 2009

433

As above

434

As above

435

As above

436

As above

437

UN-REDD Programme „Validation meeting minutes 17-19 March 2010‟ 3 (Validation minutes)

438

Validation minutes (n 437 above) 5

273

provinces. In addition to promoting the understanding of the REDD+ mechanism, a significant goal of the workshop was to foster multi-stakeholder engagement and dialogue on REDD+.

439

While participating at that forum, the Climate Network in Zambia noted that REDD+ funds must be targeted to actors actually involved in forest conservation and restoration such as indigenous peoples and local communities so as to avoid „capture by Elites‟.

440

Between October and December 2011, the UN-REDD Programme embarked upon stakeholder analysis at the provincial, district and village levels across all the 10 provinces, with the aim of developing a Stakeholder Assessment and Engagement Plan (SAEP) for REDD+.

441

However, stakeholders engagement in REDD+ process activities have been generally criticised as inadequate as non-governmental stakeholders are of the view that they have been largely excluded from the national REDD+ process leading to the NPD in Zambia.

442

It is therefore not strange that it has been suggested that more consultations are needful as activities progress to readiness stage.

443

Inadequate consultation of the forest-dependent communities itself reflects that government does not consider their concern over land tenure and use as substantial enough to make them partners on equal footing in REDD+ issues. Yet, without their adequate consultation, participation cannot be regarded as effective. In fact it can be argued that this will also compromise the entittlement to benefit-sharing of indigenous peoples.

ii. Carbon rights and benefit-sharing

The gap in tenure security will have adverse effect on the claim of indigenous peoples and forest- dependent populations in Zambia to benefits that will arise from trade in carbon. Except inferred, existing laws mostly predate law REDD+ activities and do not have provisions directly dealing with carbon ownership. Instead, the Zambia Legal Preparedness, makes a distinction between

„property rights tied to forests and those tied to land‟.

444

According to the document, this connotes that investors may enjoy carbon rights over trees in the forest without having title to

439

K Kallio-koski „The first REDD+ Orientation Workshop was recently held in Zambia with the goal to enhance understanding of the REDD+ mechanism and the challenges for its design in Zambia‟

440

Zambia Climate Change Network „Contexturizing REDD+ in the global climate change regime: A CSO perspective‟ presented at the UN-REDD Orientation Workshop 27-29 June 2011 Crestra Golf View Hotel Lusaka

441

n 437 above

442

As above

443

UN Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries

National Joint Programme Document „Independent Technical Review: Zambia‟

444

Zambia Legal Preparedness (n 324 above) 30

274

land. By extension this also signifies that those who hold land tenure may not own forest produce and therefore accruing carbon for REDD+ compensation.

445

In coming to this conclusion, the

Zambia Legal Preparedness places reliance on section 4(2)(h) of the Land Act of 1995 which empowers the president to expropriate land for „the preservation, conservation, development or control of forest produce‟. Consequently, if carbon is conceived as „forest product‟, it means that its ownership belongs to the president to hold in trust.

446

The lack of clarity of the carbon ownership in the existing framework is further compounded by the legal reality that indigenous peoples‟ title to land is informally held under customary law. As it may remain largely undeveloped, it may not benefit from the general provision of the Lands

Acquisition Act, which allows for compensation to any person whose property is acquired.

447

Rather, it will fall under the exception of the Lands Acquisition Act which exempts compensation. According to section 15(2) of the Lands Acquisition Act, „no compensation shall be payable in respect of undeveloped land or unutilised land‟. This provision can be used in dispossessing indigenous peoples from their land without compensation and therefore exclude them from a claim to benefits from carbon transaction. This fact is further buttressed under the

Act which describes land solely used for cultivation or pasturage as unutilised.

448

In view of these provisions, barring a new legal regime, it is doubtful that indigenous peoples can legally claim for compensation or benefits sharing over the implementation of REDD+.

Agitation against non-clarity of tenure featured at the formulation of the NPD in Zambia. At the sensitization meeting held in 2009, participants indicated that there is need to clarify issue around land ownership so as to attract confidence in the discussion around incentives. It was reasoned that without assuring rights to land, there can be no incentive for participation in

REDD+ activities.

449

Yet, the response of the NPD on this issue appears unclear. This indeed is reflected in the findings made by the Independent Expert while reviewing the NPD. It indicates

445

Zambia Legal Preparedness (n 324 above) 44

446

Zambia Legal Preparedness (n 324 above) 40

447

Land Acquisition Act (1970) sections 10-14

448

Land Acquisition Act (1970) section 15(4)(b)(iii)

449

Zambia Programme Document (n 323 above)

275

the need for the NPD to consider the recognition of communal tenure arrangement with appropriate legal rights to manage forests and receive performance based payments.

450

As it is realised that without clear tenure, there cannot be effective benefit-sharing from REDD+ activities, stakeholders complain that the issue of benefit-sharing requires transparency and needs to be presented in such a way that allows local communities to understand the process.

451

According to the report of the Independent Expert, although the NPD emphasises community involvement and benefit-sharing,

452

there remains the need for the NPD to include the development of legal provisions to support and regulate benefit-sharing arrangements for

REDD+ activities in Zambia.

453

iii. Grievance mechanism and access to remedies

According to the Zambia Legal Preparedness document, accessibility, fairness and independence of grievance mechanisms is a key aspect of REDD+ governance.

454

Hence, the formulation of an appropriate conflict resolution mechanism in the preparation and implementation process is one of the key challenges indicated in the preparedness for REDD+ activities in Zambia.

455

The NPD also captures this challenge when it notes the need to review existing conflict resolution mechanism for stakeholders‟ conflict and develop where necessary an institutional framework that employs conflict-resolution strategies and appropriate arbitration processes.

456

However, as it turns out, no new grievance mechanism has been put in place to address likely grievances of people alleging adverse effects related to the implementation of the UN-REDD national programme. In fact as shown from the reports so far made on the UN-REDD programme, the government has indicated that formulating such mechanism is not applicable to the preparation of the NPD.

457

This is surprising as it has been reported that an off shoot of the existing legal regime relating to land use planning regime has been a „devastating effect on the

450

UN Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries

National Joint Programme Document „Independent Expert Review‟

451

Validation minutes (n 437 above) 8

452

Zambia Programme Document (n 323 above) 8

453

Zambia Legal Preparedness (n 344 above)

454

Zambia Legal Preparedness (n 344 above) 4

455

Zambia Legal Preparedness (n 344 above) 44

456

Zambia Programme Document (n 323 above) 54

457

UN-REDD Programme „National Programme 2012 Annual Report-Zambia‟ March 2013, 32; also see UN-REDD Programme

„Zambia National Programme 2011 Annual Report 31 st

January 2012 (Final Draft)‟ 24

276

rates of deforestation and forest degradation‟, which in turn is emerging with a spate of disputes

„between community members and government agencies, and government agencies amongst themselves.‟ 458

The mechanism available for conflict resolution remains largely what exists under the regime before REDD+. For instance, disputes regarding the compulsory acquisition of land, except for the level of compensation, can be brought by legal proceedings before the High Court of

Zambia.

459

The Ministry of Lands also has units including the Lands Tribunal that carry out dispute resolution service.

460

It might be possible to find remedies in existing dispute resolution mechanisms established under the existing legal framework on less critical issues. This optimism is discernible from the case of Zambia Community Based National Resource Management

Forum and 5 others v Attorney General and I other.

461

In that case, the High Court had granted to the appellants an order ex parte staying the execution of the decision of the Minister of Lands,

Natural Resources and Environment which granted the second respondent the approval to carry out large scale mining activities in the National Park. This was, in the main, based on the grounds that the approval neglected the findings and recommendations by the Zambia

Environmental Management Agency and the report that the EIA was based on technical inadequacies.

462

While upholding the order of stay of execution pending the determination of the substantive suit, the High Court took the view that the appeal will be rendered academic if the order of stay was vacated.

463

On the argument of the respondents that the appellants had no locus to sue, the Court was of the view that „damage to the environment is a matter of public concern and interests which affect all people born and unborn‟.

464

However, caution should be exercised in respect of the optimism raised by the above decision. In the case of implementing REDD+, resorting to the Court for a decision on issues such as benefit- sharing and compensation, land tenure and use may be of limited benefit. For instance, as interesting as the decision is, the matter has not been finally disposed off and the matter can go

458

Zambia Legal Preparedness (n 324 above) 49

459

Zambia Programme Document (n 323 above) 60

460

Zambia Programme Document (n 323 above) 16

461

Zambia Community Based National Resource Management Forum and 5 others v Attorney General and I other

2014/HP/A/006 (Zambia Community case)

462

Zambia Community case (n 461 above) 3-6

463

Zambia Community case (n 461 above) 14

464

Zambia Community case (n 461 above) 22

277

as far as the highest court. This is unlike the flexible arrangements that are more amenable to compromise and flexibility which are not adequately on offer in the technical procedures and practices of the courtroom. Besides, courts have other challenges, including jurisdictions. For instance, the Lands Tribunal lacks jurisdiction to hear matters arising from customary land management unless the dispute arises from a decision made by the Commissioner of Lands,

Minister or the Registrar.

465

Generally, there are concerns around delay in the administration of justice in Zambia.

466

Without an appropriate tenure regime guaranteed in the legal framework, approaching this conventional and formal dispute resolution mechanism may achieve little in addressing the concerns of the forest-dependent peoples in Zambia. It is an unjustified optimism to expect a legal framework which has compromised the tenure system to offer effective remedy upon any allegation of adverse effect related to the implementation of the UN-REDD national programme in Zambia.

3 Nigeria and readiness for REDD+

The involvement of Nigeria in REDD+ programme dates back to 2009 when it requested along with Cross River State (CRS) to implement REDD+. Support was given to the request by the

UN-REDD programme which led to the formulation of a proposal on national programme for

REDD+.

467

Its primary objective is to implement the REDD+ programme, using CRS, one of the

36 states in Nigeria as a demonstration model.

468

The current version of Nigeria R-PP was submitted by Nigeria to the World Bank Forest Carbon Partnership (FCPF) and the UN-REDD

Programme, in November 2013.

469

Toward the process of phase 1, Nigeria has been supported with a financial allocation of US$ 4 million for the period 2012-2015.

470

Also, it applied for 3.6 million dollars from the FCPF Programme.

471

465

Zambia Programme Document (n 323 above) 17

466

Zambia Legal Preparedness (n 344 above) 44; See P Matibini „Access to justice and the rule of law: An Issue Paper presented for the Commission on legal empowerment of the poor‟ www.undp.org/legalempowerment/Zambia/27_3_Access_to_Justice.pdf. (accessed 24 October 2013)

467

Nigeria R-PP (n 139 above) 6

468

Nigeria NPD (n 125 above)

469

Nigeria R-PP (n 139 above) 6

470

Nigeria R-PP (n 139 above) 6

471

G Odu-Oji „Seminar Presentation on Status of UN-REDD+ in Nigeria: Challenges and policy option‟ (August 2013)

University of Ibadan, Ibadan, Center for Sustainable Development (CESDEV)

278

Commencing the process in 2011, it has prepared and submitted to the UN-REDD Policy Board a National Programme Document (NPD) which sets out the approaches to achieve REDD+

Readiness.

472

These approaches are through the development of institutional and technical capacities at the federal level, and building of institution and demonstration activities using CRS as a model. This model approach is expected to shape the national process that will then drive other states that may wish to implement REDD+ activities.

473

The foregoing documents along with the „Preliminary Assessment of the Context for REDD in Nigeria‟ describe the regulatory context, namely institutional and normative context in which Nigeria is engaging REDD+ activities.

474

These documents are analyzed to show that not much has changed in terms of the protection of the land tenure and use of indigenous peoples in preparation for the REDD+ activities in Nigeria.

a. REDD+ institutions and composition

The institutional structure for the REDD+ programme in Nigeria is in two tiers, namely the national and state levels. Generally, the institutional framework for forestry development at the national level includes the Federal Ministry of Environment (FME) and parastatals, the National

Forestry Development Committee (NFDC), National Council on Environment, Ministries of

Finance, Tourism, Agriculture and Women Affairs.

475

The FME has established the Special

Climate Change Unit (SCCU), which is vested with mandates including negotiation, planning, policy, education and carbon finance.

476

Among other things, the mandates of the SCCU involve the assessment of vulnerability in Nigeria to climate change as well as impacts of climate change. Its roles further include the promotion of public awareness and facilitation of education about climate change as well as representation of Nigeria in international climate change negotiation.

477

Established in April 2013, the National Climate Change Committee (NCCC) is an interministerial body that includes the ministers of national planning commission, aviation,

472

Nigeria NPD (n 125 above)

473

Nigeria NPD (n 125 above) 11

474

„Review synthesis of Nigeria R-PP‟, October and November 2013 (Nigeria synthesis report)

475

Nigeria NPD (n 125 above) 20

476

Federal Ministry of Environment „Nigeria Climate Change Unit‟ http://www.climatechange.gov.ng/ (accessed 18 December

2013)

477

Federal Ministry of Environment „What we do‟ http://www.climatechange.gov.ng/index.php/the-special-climate-changeunit/what-we-do (accessed 18 December 2013); Nigeria NPD (n 125 above) 20

279

agriculture and rural development and environment. Others are ministers of works, science and technology, water resources, health, and transport.

478

While the Minister of National Planning is the Chairman, the Minister of Aviation acts as Vice Chairman.

479

The NCCC is with the mandate to develop a national framework for application of climate services which will promote, among others, national food security and lead to reduction in severe weather events, health hazards and vulnerability.

480

The NCCC allows for cross-sectoral coordination of national climate change policies.

481

The institutions established so far in the process of preparation for REDD+ in Nigeria still remain predominantly composed of government agencies. This is the case with the National

Advisory Council on REDD+, National REDD+ Subcommittee, National Climate Change

Technical Committee, the National REDD+ Secretariat, UN-REDD Nigeria Programme Steering

Committee and National Stakeholder Platform for REDD+.

482

The National Advisory Council is hosted by the Ministry for the Environment and is made up of representatives including the

National REDD+ Coordinator, the Governor of Cross River State (co-Chairperson), the

Chairman of Cross River State Forestry Commission, the UN Resident Coordinator (co-

Chairperson), the Climate Change Department (representing also the National REDD+

Subcommittee), the Federal Department of Forestry, the Chief Technical Advisor of the

Programme (as observer), CSO/NGO REDD+ representatives (federal level), Forest-Dependent

Community representatives, the National Planning Commission and the Ecological Fund

Office.

483

The National Advisory Council was formally endorsed by the local Programme Appraisal

Committee. The role of the Council includes the provision of policy advice and guidance on all

National REDD+ processes and supervision of the activities of the National Technical REDD+

Committee.

484

It also carries out oversight functions over consultancies on National REDD+ issues, offers guidance to a REDD+ plan of operations, annual work plans, annual budgets,

478

„Nigeria inaugurates Inter-ministerial committee on national framework for application of climate services‟ http://www.gfcsclimate.org/content/nigeria-inaugurates-inter-ministerial-committee-national-framework-application-climate (accessed 18

December 2013)

479

As above

480

As above

481

Nigeria R-PP (n 139 above) 13

482

Nigeria R-PP (n 139 above) 12-17

483

As above

484

As above

280

monitoring and evaluation process and implementation. Once inaugurated this Council will meet once in a year.

485

In addition to the inadequacy of this representation, sandwitched among government controlled agencies, it is not unlikely that the presence of the spot offered the forest-dependent peoples in the composition of the National Advisory Council may be compromised. Also, the fact that the documentation is silent on the process through which these representatives are selected shows that the slots meant for the forest-dependent communities may infact be occupied by government loyalists which may affect the accountability of these representatives to the local constituency.

Previously known as the National Technical REDD+ Committee, the National REDD+

Subcommittee is linked with the NCCC. The Committee comprises 25 members consisting largely of experts and government agencies. These include technical experts from the various government ministries and agencies such as the Federal Ministry of Environment, the

Department of Climate Change, National Advisory Council REDD+, Federal Department of

Forestry, National Planning Commission, Federal Ministry of Agriculture and Rural

Development.

486

Other members are Federal Ministry of Energy, National Park Services, Federal

Ministry of Women Affairs, Nigeria Air Space Research and Development Agency (NASRDA), research institutes, Forestry Research Institute of Nigeria (FRIN), NGO/CSO representatives, forest and agriculture enterprises, UN Donor Agencies, bilateral donor Agencies and

Academia.

487

The Committee meets twice a year.

488

A closer examination of this composition leaves one with the impression that the Sub-Committee has too much presence of government. Also, without clearly defining the role for each of these members, the mandate of the Sub-committee may be stifled by bureaucracy. The responsibilities of the Sub-Committee show that it is largely a top-down institution. This is because even the responsibilities that the forest -dependent communities are best left to handle at their level are on the list of mandate of the Subcommittee. These responsibilities include identifying and advising on the roles of relevant stakeholders for the implementation of REDD+ processes in Nigeria, recommending measures and programmes that will ensure awareness creation, education,

485

Nigeria R-PP (n 139 above)12

486

Nigeria R-PP (n 139 above)14

487

As above

488

As above

281

training and institutional capacity building on REDD+ issues.

489

Directly affected by REDD+ activities, one would expect that forest-dependents are better placed to suggest and recommend programmes to enable effective implementation of activities in the sites that are part of their daily existence and survival.

Located within the Department of Forestry in the Federal Ministry of Environment, the National

REDD+ Secretariat is tasked with the implementation and the management of the REDD+ readiness process at the federal level, as well as the overall coordination and supervision of programme nation wide. It is headed by the National REDD+ Coordinator.

490

In dealing with daily management of federal level activities, the Secretariat performs a range of functions.

491

These functions include the preparation of workplan, overseeing of programme activities and consultants; coordination of inputs and outputs from the various REDD+ programmes and related programmes.

492

Other functions include the offering of progress and monitoring reports, coordination of national REDD+ activities and programmes, and ensuring efficient record of programme payment in line with international standards.

493

The Secretariat is expected to strengthen the engagement of Nigeria with the international community and international negotiations, particularly in the UNFCCC.

494

Overall, the National REDD+ Secretariat is required to provide coordination and REDD+ readiness management roles, and offer administrative coordination for the National Advisory Council on REDD+ and the National

REDD+ Subcommittee as well as the REDD+ Pilot States.

495

Considering the critical role of this Secretariat to the implementation of the REDD+ activities, the relationship with forest- dependent communities should ordinarily have mutual benefit for its activities and the communities. For instance, given its mandate at strengthening the involvement of Nigeria at international negotiations, regular interaction with the Forest-dependent communities can equip it with feedbacks that may shape the fulfillment of its role. However, this is not yet achieved as there is no clearly set out platform which is specifically linked with these

489

As above

490

As above

491

As above

492

As above

493

As above

494

As above

495

Nigeria R-PP (n 139 above) 15

282

communities and aimed at incorporating their worldview into the national and international dimensions of the overall activities of the Secretariat.

Established in April 2013, the UN-REDD Nigeria Programme Steering Committee (PSC) consists of key government and UN staff, as well as two representatives from Civil Society

Organisations.

496

The PSC is tasked with the coordination of programme including the approval of work-plans and budgets and overall monitoring.

497

Other functions of the PSC include the provision of strategic direction for the implementation of the programme with the approval of the

UN-REDD Policy Board, as well as creation of synergies and forging of agreements with related national programmes elsewhere. In all, in addition to making use of their members, the functions of the PSC are generally complementary to the REDD+ National Advisory Council and UN-

REDD+ Sub-Committee.

498

In its design, the PSC does not specifically include the forest- dependent peoples in its formation.

The slot given to civil society representation does not necessarily guarantee that those belonging to the communities where REDD+ initiatives are carried out will be part of the PSC mechanism.

This leaves much to be desired considering the key role of the institution in the implementation of REDD+ activities. The UN-REDD Policy Board, for instance, which performs similar strategic role as the PSC, at least, creates space for a representation by indigenous peoples and in a way allows for a reflection of their view in its discussion.

Existing as part of the architecture of the national REDD+ programme is the National

Stakeholder Platform for REDD+.

499

This platform, according to the R-PP of Nigeria, ensures representation of women, youth, indigenous groups, forest-dependent communities including the ones in CRS and other groups identified as marginal or vulnerable groups.

500

Members to the platform are selected on their records and their past engagement and activity.

501

As indicated in the R-PP, membership is open to any NGO or organisation that has shown some commitment to

REDD+ or to related issues. Groups with intention to become member will do a letter to the

496

As above

497

As above

498

As above

499

As above

500

As above

501

As above

283

Department of Forestry which examines the track record of the organisation and comes to a decision as to whether or not to allow such groups become members and attend meetings.

502

Although this seems a great platform to secure a broad based participation in the REDD+ activities, the process of becoming membership is cumbersome and subordinating. It is cumbersome particularly for forest-dependent communities who may be mostly illiterate and lack physical access to the location of this department. Also, it is not clear yet whether associations formed by forest-dependent populations are eligible as members. Similarly, it is certainly not obvious in the R-PP nor the NPD how the National Stakeholders Platform will feed into other institutional arrangements already discussed. The process is subordinating in the sense that it confers the wide discretion on the platform to decide as they wish on who to allow as members. This may shut the door against the membership and indeed participation of groups that have alternative or opposing views about the implementation of REDD+ in Nigeria.

The architecture at state level in Cross River mainly mirrors what exists at the national level and portrays an arrangement whereby state agencies largely dominate institutional architecture for the implementation of REDD+ activities. This is the case with the arrangement of the CRS

Forest Commission which is mainly a governmental entity providing general oversight for

REDD+ activities at the state level. The Commission‟s effort is administered through the Cross

River State REDD+ Unit that is situated within the Commission.

503

This Unit performs similar duties as it is with the Federal REDD+ Secretariat, and is accountable for the daily management of REDD+ activities in the state.

504

Similarly, the CRS Technical REDD+ Committee is composed of governmental entities such as the Forestry Commission, the Ministry of Environment, the Ministry of Agriculture, the Ministry of Lands, the Ministry of Works and the Tourism Bureau.

505

Other members are the Department of Forestry and Wildlife, the Faculty of Environmental Sciences of the Cross River State

University of Science and Technology, the State Planning Commission, the Department for

Donor Support and the Cross River State National Park.

506

There is space for at least three ngo

502

As above

503

Nigeria NPD (n 125 above) 73

504

As above

505

As above

506

As above

284

representatives, four community representatives and the Chairperson of the CRS House of

Assembly‟s Committee on Environment.

507

While this composition is relevant to the REDD+ activities, it is not clear what specific role these non-governmental institutions will play in a committee heavily dominated by governmental agencies. Except this is well set out, allowing such a limited space for ngos and community representation do not necessarily guarantee that on critical issues, the position of the communities will trump that of the vast majority of the

Committee who are likely to pursue uncritical implementation of government policies on the matter of REDD+.

Offering some hope in terms of participation of the forest-dependent communities is the Cross

River State Stakeholder Forum on REDD+ which was established in 2010.

508

The forum aims at ensuring that the knowledge and perspective of all non-governmental participants and stakeholders are adequately reflected in the programme‟s approach and strategies.

509

According to the R-PP, in establishing this forum, the focus is on ethnic diversity in a manner that ensures representation by women, youth, forest-dependent communities and other identified marginal or vulnerable groups.

510

Other roles of this forum include the discussion of programme progress, contribution to programme planning and activities, as well as the running comment on draft documentations.

511

However, the potential in this forum is undermined by the indication in the

R-PP denying the existence of indigenous peoples in Nigeria. According to the R-PP, there is no

„single marginalised ethnic groups or indigenous people, because the country is shaped by a very strong ethnic diversity‟.

512

This observation, however, flies in the face of findings of the

Working Group that prescribe the conditionalities for identifying indigenous peoples and identifies some groups in Nigeria as such. This approach may compromise those groups of communities who may self-identify and base their claim for special recognition on strong attachment to forest land.

Equally reflecting the heavy presence of state agencies, the State Climate Change Council is composed of the Governor, serving as the Chairman with other members as Commissioners of

507

Nigeria R-PP (n 139 above) 16

508

Nigeria R-PP (n 139 above) 17

509

As above

510

As above

511

As above

512

As above

285

Justice, Finance, Agriculture, Environment and Lands, State Planning Commission, Department for International Donor Support and the Chairman of the Forestry Commission, serving as the

Coordinator.

513

The Council acts as an inter-ministerial body which ensures there is coordination across different sectors.

514

In all, in terms of the evolving institutional design for REDD+ activities in Nigeria, the conclusion can be made that the institutions anchoring these activities are mainly governmental with scanty presence of community members such as the forest-dependent populations who are likely to have effect and be affected negatively by the implementation of REDD+ activities.

b. Regulatory framework and indigenous peoples’ lands

While examining the framework for Nigerian environmental protection, Fagbohun highlights twenty four sectors of laws and regulations dealing with environmental protection in Nigeria.

515

The first sector is what the author regards as the general framework, namely, Constitution of the

Federal Republic of Nigeria,

516

National Policy on Environment,

517

and National Environmental

Standards and Regulations Enforcement Agency Act.

518

The other sectors are specific consisting of industries,

519

permitting and licensing system,

520

telecommunications,

521

noise,

522

marine and coastal areas resources,

523

sanitation,

524

mining & mineral resources,

525

greenhouse gas emission,

526

pest management,

527

water quality, efficiency and resources,

528

flora and fauna,

529

513

As above

514

As above

515

O Fagbohun „Mournful remedies, endless conflicts and inconsistencies in Nigeria‟s quest for environmental governance:

Rethinking the Legal possibilities for sustainability‟ (2012) Nigerian Institute of Advanced Legal Studies19-24

516

Constitution of the Federal Republic of Nigeria (1999)

517

National Policy on Environment, Act 42 (1988)

518

National Environmental Standards and Regulations Enforcement Agency Act (NESREA), (2007)

519

National Environmental (Domestic and Industries Plastic, Rubber and Foam Sector) Regulations (2011); National

Environmental (Food, Beverages and Tobacco Sector) Regulations (2009); National Environment (Textile, Wearing Apparel,

Leather and Footwear Industries) Regulation (2009); National Environment (Chemical, Pharmaceutical, Soap and Detergent

Manufacturing Industries) Regulations (2009); National Environment (Electrical/ Electronic Sector) Regulations (2011)

520

National Environmental (Permitting and Licensing System) Regulations (2009)

521

National Environmental (Standards for Telecommunications and Broadcast Facilities) Regulations (2011)

522

National Environmental (Noise, Standards and Control) Regulations (2009)

523

National Environmental (Coastal and Marine Area Protection) Regulations (2011)

524

National Environmental (Sanitation and Wastes Control) Regulations (2009); Quarantine Act (2004)

525

National Environmental (Mining and Processing of Coal, Ores and Industrial Minerals) Regulations (2009) Minerals and

Mining Act, LFN, 2004; National Environmental (Non-Metalic Mineral Manufacturing Industries Sector) Regulations (2011);

Oil Pipelines Act, Cap. 07, LFN (2004); Petroleum Act, Cap. P10 LFN (2004); Petroleum Regulations, L.N 71 of 1967;

Petroleum (Drilling & Production) Regulations, L.N. 69 of 1967; Oil in Navigable Waters Act, Cap. 06 LFN 2004; Oil in

Navigable Waters Regulations, L.N 101 (1968)

526

National Environmental (Ozone Layer Protection) Regulations (2009)

527

Bees (Import Control and Management) Act, LFN (2004); Animal Diseases (Control) Act (2004)

286

waste management,

530

settlements,

531

energy use,

532

noise pollution,

533

land use and soil conservation,

534

toxic and hazardous substances,

535

water resources,

536

resource conservation,

537 wildlife,

538

forestry,

539

and air pollution.

540

Although this categorisation may be a useful tool of analysis of climate change regulatory environment in Nigeria, as some of these sectors may overlap, it is merely one of academic convenience. For instance, a sector such as forestry which author highlights as a stand-alone is certainly a component reflected in other sectors including wildlife, resource conservation, land use and soil conservation, water quality, efficiency and resources.

541

Illustrating that this sectional overlap cannot be ruled out in the context of climate change regulatory framework is the REDD+ measure which though relates closely to forestry but is governed by laws and policies cutting across different sectors relating to the environment.

Hence, in assessing the regulatory framework in Nigeria, the above framework dealing with

REDD+ is of little assistance. Rather, what is important are the instruments highlighted in the documentation filed by Nigeria. As indicated in the documentation, the applicable framework features instruments namely, National Forestry Policy,

542

National Policy on Environment,

543

528

National Water Resources Institute Act, Cap W2, LFN (2004); Oil in Navigable Waters Act, Cap O6, LFN (2004)

Water Resources Act, Cap W2, LFN (2004); National Environmental (Surface and Groundwater Quality Control) Regulations

(2011)

529

National Crop Varieties and Livestock Breeds (Regulation) Act, LFN (2004)

530

National Environmental Protection (Management of Solid and Hazardous Wastes) Regulations (1991); Harmful Waste

(Special Criminal Provisions) Act, Cap H1, LFN (2004)

531

Nigerian Urban and Regional Planning Act, Cap N138, LFN (2004)

532

Energy Commission of Nigeria Act, Cap E10, LFN (2004); National Atomic Energy Commission Act, Cap N91, LFN (2004);

National Safety and Radiation Protection Act, Cap N142, LFN (2004)

533

National Environmental (Noise, Standards and Control) Regulations (2009)

534

Land Use Act, L5, LFN (2004); Land Use (Validation of Certain Laws, etc) Act, Cap L6, LFN (2004); Land (Title Vesting, etc.) Act, LFN (2004); National Environmental (Soil Erosion and Flood Control) Regulations (2011); National Environmental

(Construction Sector) Regulation (2011)

535

Harmful Waste (Special Criminal Provisions) Act, Cap H1 (2004); National Environmental (Base Metals, Iron and Steel

Manufacturing/ Recycling Industries Sector) Regulations (2011)

536

National Water Resources Institute Act, Cap N83, LFN (2004); Territorial Waters Act, Cap T5, LFN (2004)

537

Federal National Park Service Act, Cap N65, LFN (2004); National Environmental (Access to Genetic Resources and Benefit-

Sharing) Regulations (2009)

538

Endangered Species (Control of International Trade and Traffic) Act, LFN (2004) Gaming Machines (Prohibition) Act, Cap

G1, LFN (2004); Hides and Skin Act, Cap H3, LFN (2004); Animal Disease (Control) Act, Cap A17, LFN (2004); National

Environmental (Protection of Endangered Species in International Trade) Regulations, 2011

539

National Forestry Policy (1988)

540

National Effluent Limitation Regulations, Special Instrument No 8, (1991); Associated Gas Re-injection Act, Cap A25, LFN

(2004); The Associated Gas Re-injection (continued flaring of Gas) Regulation, LFN (2004); National Environmental Protection

(Effluent Limitation) Regulations (1991); National Environmental (Control of Bush, Forest Fire and Open Burning) Regulations,

(2011); National Environmental (Control of Vehicular Emissions from Petrol and Diesel Engines) Regulations (2011)

541

Fagbohun (n 515 above)

542

National Forestry Policy (1988)

543

National Policy on Environment, Act 42 (1988)

287

Land Use Act,

544

National Environmental Standards and Regulations Enforcement Agency

(NESREA) Act,

545

and the Law on the Management and Sustainable Use of the Forest Resources of Cross River State.

546

The argument is made that in ensuing section that while there are useful provisions in these policies and laws relevant to REDD+ activities in Nigeria, generally these policies and laws remain inadequate in safeguarding the land tenure and use of indigenous peoples.

i. Legislation environment and REDD+

The 1999 Constitution recognises in its provisions, the significance of improving and protecting the environment. For instance, according to its section 20, it is a key aspect of state fundamental objective to improve and protect the air, land, water, forest and wildlife of Nigeria. This provision when interpreted along with the African Charter to which Nigeria is a state party can be progressively engaged, as it has been argued, to safeguard the right to healthy environment in

Nigeria.

547

It is, however, of doubtful relevance for safeguarding the right to land of indigenous peoples in the context of the implementation of REDD+. What is more certain is that it can be used as a sword by the state to displace forest-dependent populations on the ground that their activities are detrimental to the environment. The possibility of this is visible in the content of laws made often pursuant to the Constitution.

For instance, the Land Use Act undermines the customary ownership of land through a number of its provisions. The purport of section 1 of the Act is to vest ownership of land in the State to hold in trust and administered for the use and common benefit of all Nigerians while section 2 of the Act empowers the Governor of a State as well as the Local Government to assume control and management over all the lands in their respective territories. Further reinforcing these provisions, section 28 of the Act provides that land may be appropriated for „overriding public

544

Land Use Act L5, LFN (2004)

545

National Environmental Standards and Regulations Enforcement Agency Act (NESREA), (2007)

546

Cross River State of Nigeria A Law to make provisions for the establishment of the State Forestry Commission; and for the

purposes of providing sustainable management of the forest and wild life resources, preservation and protection of the ecosystem

in Cross River and others connected therewith Law No.3, 2010 (Cross-River Law on Sustainable Management of Forest

Resources)

547

EP Amech „Litigating right to healthy environment in Nigeria: An examination of the impacts of the Fundamental Rights

(Enforcement Procedure) Rules 2009 in ensuring access to justice for victims of environmental degradation‟ (2010) 6 Law,

Environment &Development Journal 320

288

interests‟ which is defined as including „the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith‟.

The impact of the foregoing provisions on customary ownership of land in Nigeria has been considered by the Supreme Court in Abioye v Yakubu.

548

In that case, the Court held that the effects of the Act on customary land-holding included the:

(1) removal of the radical title in land from individual Nigerians, families, and communities and vesting the same in the governor of each state of the federation in trust for the use and benefit of all Nigerians (leaving individuals, etc, with „rights of occupancy‟); and

(2) removal of the control and management of lands from family and community heads, chiefs and vesting the same in the governors of each state of the federation (in the case of urban lands) and in the appropriate local government (in the case of rural lands).

549

The injustices of the foregoing impact of the Act, particularly in relation to customary ownership of land resources have been a subject of spirited academic discourse. In Omeje‟s view, the Act

„technically facilitates the acquisition and use of land for oil activities‟, 550

and in the context of

Niger Delta, Ako argues that the Act is a triggerer of conflict and an obstruction to the realisation of environmental justice.

551

Arguably, the Land Use Act is a disincentive to co-operation of indigenous communities in implementing the REDD+ activities. This is because it curtails the customary ownership of land, which is critical in forest protection.

A bill on National Forestry was produced in 2006 and it has since been reviewed by the National

Assembly. If the aim of this bill, as it has been mentioned,

552

is to give legal backing to the

National Forestry Policy, then the Act will contribute little to safeguarding the land tenure and use of indigenous peoples or forest-dependent communities in Nigeria. Supporting this position is the reference of the National Forestry Policy to the Land Use Act, the application of which is implied in the Draft National Forestry bill. Arguably, the reference to the Land Use Act by the

Policy connotes that provisions of the Act which undermine indigenous peoples‟ land tenure and use will equally govern the application of bill if eventually passed into law.

548

Abioye v Yakubu (1991) 5 NWLR (pt 190) 130 (Yakubu case)

549

Yakubu (n 548 above) 223, paras (d)-(g) per Obaseki JSC

550

K Omeje High stakes and stakeholders: Oil conflict and security in Nigeria (2006) 47

551

RT Ako „Nigeria‟s Land Use Act: An anti-thesis to environmental justice‟ (2009) 53 Journal of African Law 289-304

552

Draft National Forestry Act (2006)

289

Another law indicated by the NPD as relevant to REDD+ activities in Nigeria is the National

Environmental Standards and Regulations Enforcement Agency (NESREA) Act,

553

which repealed the Federal Environmental Protection Agency Act (FEPA Act) of 1988.

554

The responsibilities of NESREA that are of particular relevance to the implementation of REDD+ activities are encapsulated in section 7 of the Act. These generally include enforcement and awareness facilitation. The enforcement responsibilities deal largely with formulation of environmental standards,

555

while awareness facilitation, which may also overlap into compliance responsibilities, centres on liaising with stakeholders and creation of public awareness on environmental standards and sustainable management.

556

To assist the Agency in giving full effect to its functions under the Act, section 34(b) of the Act empowers the Minister to make further regulations.

557

Significantly, in addition to being silent on the issue of land tenure, NESREA embodies certain provisions which may undermine the implementation of the REDD+ project. Section 29 of

NESREA empowers the Agency to co-operate with other Government agencies for „the removal of any pollutant excluding oil and gas related ones discharged into the Nigerian environment‟.

However, as pollution in oil and gas activities may be connected with exploration of forest resources,

558

in exempting oil and gas pollution from its line of activities, this provision may compromise the need for consultation and compensation of forest-dependent communities and thus set bad precedent for dealing with these populations while implementing REDD+.

Moreover, the Act criminalises conduct by any person which violate the provisions of section

26(1) dealing with the protection and improvement of the environment and land resources.

559

This can be detrimental to the forest-dependent communities while implementing REDD+ as it

553

NESREA (2007); Nigeria NPD (n 125 above)

554

For some relevance of FEPA and criticisms against its lifetime, see Fagbohun (n 515 above); OA Fagbohun „19 Years After

FEPA Act: What future for the new Environmental Enforcement Agency Act, 2007‟ (2007) 2 Journal of Current Practice cited in Fagbohun (n 515 above)

555

NESREA ( 2007 above) section 7 (a), (c), (d), (e), (f), (g), (h),(i) and (j)

556

NESREA ( 2007 above) section 7(a) and (l) respectively

557

So far in 2009, NESREA introduced 11 subsidiary legislation pursuant to section 34 of the Act while additional 13 subsidiary legislation were further introduced in 2011. For a list of NESREA laws and regulations, see, National Environmental Standards and Regulations Enforcement Agency „Laws and regulations‟ http://www.nesrea.gov.ng/regulations/index.php (accessed 20

January 2014); see Fagbohun (n 515 above) 25

558

R Ako & O Oluduro „Bureaucratic rhetoric of climate change in Nigeria: International aspiration versus local realities‟ in F

Maes et al (eds) Biodiversity and climate change: Linkages at international, national and local levels (2013) 3-31; AO Jegede

„Trouble in paradise: Prosecution of climate change related laws in Nigeria‟ in Gerardu, J et al (eds.) Compliance strategies to

deliver climate benefits (2013) 50-53

559

NESREA (2007 above) section 26(2)

290

can potentially be used in checkmating legitimate resistance of these communities about REDD+ projects on their land.

In CRS, the law titled „A Law to make provisions for the establishment of the State Forestry

Commission; and for the purposes of providing sustainable management of the forest and wild life resources, preservation and protection of the ecosystem in Cross River and others connected therewith‟ is a specialised law dealing with management of forest and resources.

560

This law contains provisions in respect of all the different types of forests within the state.

561

It defines the roles and responsibilities of all the potential stakeholders and beneficiaries of forest resources in the state.

562

The law allows for the protection, control and management of the forest to be directed by an established Commission in collaboration with other stakeholders including communities, civil society, and community based forest management association.

563

The law can indeed serve as a legal basis for the establishment of community based forest management

(CBFM) to develop and manage resources from forest for „sustainable use, socio-economic development of the community, protection and benefit-sharing‟.

564

Interestingly, the law requires the Commission to comply with „international conventions and treaties on natural resources management‟.

565

A novel department that the law proposes is the Carbon Credit Unit that is largely required to give effect to the realisation of its provisions.

566

Despite the forward looking provisions above, the reality is that the law will be largely shaped by the controversial content of existing legislation particularly the Land Use Act and the National

Forest Policy. For instance, although it seems promising that the law offers a legal basis for the establishment of CBFM in which forest-dependent communities may participate, the control that these communities may have over affairs is limited. Rights which are crucial to indigenous peoples are curtailed by the provisions of the law forbidding alienation, lease, sale, transfer of

560

Cross-River Law on Sustainable Management of Forest Resources (n 546 above)

561

These are namely, state forest reserve, local government forest, community forest, private forest, wildlife sanctuary, forest plantation, strict nature reserve and gaden, park and urban forest; see section 24, Cross-River Law on Sustainable Management of

Forest Resources (n 546 above)

562

See for instances, Cross-River Law on Sustainable Management of Forest Resources (n 546 above)

sections 1 and 3 respectively establishing the commission and its composition; section 9(1) which set out the various departments within the commission; section 29 on the duty of reserve settlement officer; sections 59 and 60 dealing with community based forest mangement

563

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 42

564

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 59

565

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 6 (e)

566

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 9 (3)

291

land without approval of the governor.

567

Further reinforcing this position are provisions affirming that the „protection, control and management of forest reserves‟ shall be „directed‟ by the Commission,

568

which is empowered to close right of way or water course in forest reserve.

569

In the law, there is overbearing prohibition of activities including cutting of forest for any use,

570

and harvesting of forest products.

571

With provisions criminalising activities such as cultivation of soil, herbage, erection of building and residence in the forests,

572

it effectively means that the forests is not legally inhabitable as territories belonging to the peoples who have historically lived and depended on its resources for survival.

Although the law provides for the Commission to be guided by international conventions which raises some hope about the application of a standard that can be beneficial to the forestdependent communities, this is difficult to achieve. This is considering that being a unit in the federal system of Nigeria, CRS does not have the power to enter into a treaty by itself.

573

More importantly, going by the doctrine of covering the field,

574

the provision in the state law calling for strict compliance with international treaties can only be interpreted and understood in the light of article 12(1) of the 1999 Constitution which affirms that no treaty shall have the force of law except passed into law by the National Assembly. This signifies that international treaties will only apply in CRS in so far as they form part of the treaties ratified by the federal government. Finally, viewed from the angle of forest-dependent communities who live and use forests products for subsistence purposes, the law of CRS is unusually punitive as it places on the accused the burden of proof that he is not a criminal if found with forest products.

575

This approach itself is incompatible with article 36(5) of the 1999 Constitution which requires presumption of innocence as an important element of the right of an accused person to a fair trial.

567

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 39

568

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 42

569

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 40(1)

570

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 48

571

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 50(1)

572

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 83(1)

573

Nigeria 1999 Constitution, art 12(1)

574

Traceable to the common law, the doctrine of covering the field is a rule in constitutional law theory which applies to a federal government essentially to mean that acts of the federal government in a federal system of government are binding on the states and their agencies; for the meaning and judicial application of this doctrine in Nigeria, see AG Abia and others v AG Federation

and others S.C. 99/2005, S.C. 121/2005, S.C. 216/2005 (Consolidated)

575

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 92

292

ii. Policy environment and REDD+

The National Environmental Policy embodies a range of interesting provisions which are relevant to sustainable management of forests. In addition to its aim of securing a quality environment adequate for good health and well-being, the policy seeks the use and conservation of environment and natural resources for the benefit of present and future generations.

576

It also promotes enhancement of the ecosystem, public awareness, the understanding of the essential linkages between the environment, resources and development, as well as the encouragement of individual and community participation in environmental efforts.

577

A strategy for achieving this is through the prevention of the depletion of forests by controlling the demands and patterns of land resources usage as well as promoting alternative use of energy.

578

In order to promote land use and conservation, the National Policy encourages afforestation and reforestation programmes such as community based agro-forestry for soil enhancement,

579

and urges the prevention of excessive destruction of the forest as a means of protecting the forest.

580

In order to achieve the health component of its vision, the policy aims at aiding community participation in the preparation and implementation of health and environmental activities and projects.

581

It supports the sharing of benefits and knowledge, expertise and technologies to ensure fair and equitable use of the biodiversity.

582

However, the policy has no provision on the tenure of indigenous peoples or forest-dependent peoples. This suggests that the issue of tenure is not considered as essential to environmental goal of the policy. Yet, this should not be the case considering that tenure is the corner stone of provisions relating to sustainable management of the environment.

583

The overall objective of the National Forestry Policy is to achieve sustainable forest management, leading to sustainable increases in the economic, social and environmental benefits from forests and trees, for present and future generations, including the poor and vulnerable

576

National Policy on the Environment, Act 42 (1988) section 2(a)(b) and (c)

577

As above

578

National Policy on the Environment, Act 42 (1988) section 4(10(i)

579

National Policy on the Environment, Act 42 (1988) section 4(6)(h) and (9)(h)

580

National Policy on the Environment, Act 42 (1988) section 4(9)(l)

581

National Policy on the Environment, Act 42 (1988)section 4(16)(n); see generally, section 6(6) which deals with public participation

582

National Policy on the Environment, Act 42 (1988) section 4(4)(g) and (20)(f)

583

Rights and Resources Initiative What future reform? Progress and slowdown in forest tenure reform since 2002 (2014)

293

groups.

584

The policy specifically seeks to support schemes that facilitate access to carbon markets,

585

and encourage forest-dependent people, farmers and local communities to advance their livelihoods through novel methods to forestry.

586

The strategy to implement this policy includes promoting broad partnerships, decentralization, community participation, and the active participation of women, youth and vulnerable groups.

587

It aims at assisting the poor in adapting to the impacts of climate change and benefiting from evolving carbon markets, through tree cultivation of forests.

588

It also provides that the aim of the policy is to guarantee tree ownership rights within the enabling laws and traditional practices and customs.

589

However, while the policy makes copious references to land tenure and use, it is in the context of promoting the market and economic value of the forest for investment purposes. This is reflected in a number of its provisions. For instance, it aims at incentivising investment in forestry through improved land tenure and use.

590

Hence, the strategies to help in realising this include the building of a supportive legal basis for tree tenure, access rights, and sharing of benefits from wood and non-wood forest products.

591

Arguably, these provisions do not offer space for forest- dependent communities that may wish to refuse the implementation of REDD+projects. Also, the idea that the community may have unassailable tenure guarantee is undermined through the reference of the policy to the position under the 1978 Land Use Act that all land, including trees growing on it belongs to the state.

c. Implications of inadequate land tenure and use legislation

Emerging gap in land use and tenure security for indigenous peoples in the legal environment within which Nigeria is preparing for REDD+ activities connote further negative consequences for their participation, carbon rights and benefit-sharing, grievance mechanism and access to remedies.

584

National Forestry Policy (1988) section 3(i)

585

National Forestry Policy (1988) section 3(10(ii)

586

National Forestry Policy (1988) section 3(1)(v)

587

National Forestry Policy (1988) section 3(2) generally

588

National Forestry Policy (1988) section 3(3)(10)(2)(vi)

589

National Forestry Policy (1988) section 3(2)(27)

590

National Forestry Policy (1988) section 3(1)(ix)

591

National Forestry Policy (1988) section 3(3)(2)(3)(i)

294

i. Participation

That consultation has featured in the preparation for REDD+ activities cannot be disputed. The

R-PP chronicles this range of events. On 31 January 2011, CRS REDD+ stakeholders forum was held to discuss Nigeria‟s REDD+ proposal workplan by government, formation of NGO and community stakeholders as well as committees to help with the preparation of the proposal and other REDD+ readiness activities.

592

The review of first draft of the REDD+ Readiness proposal was the focus of another dialogue which took place on 5 february 2011 with the representatives of federal government and CRS along with NGO and community stakeholders reportedly in attendance.

593

Subsequent submission of the draft proposal was followed by second mission visit by the UN-REDD to Nigeria in connection with the drafting of Nigeria REDD+ Readiness programme document. In this regard, an appraisal workshop was held in Calabar while a national validation workshop was held in Abuja between 14 and 23 february 2011.

594

Between 18 and 20 May 2011, a Workshop on participatory governance assessments and their role in REDD+ (PGA/REDD+) was also held.

595

The outcome of this was the launch of Lagos

Nigeria‟s PGA/REDD+ initiative. Supported by the United Nations Development Programme

(UNDP), the PGAs aim at building governance for REDD under a country-led vision.

596

The added value of the PGA/REDD+ initiative lies in the fact that it aims at promoting ownership, stakeholder engagement and grassroots-based building of governance capacities. PGAs for

REDD+ emphasise the inclusion of a wide range of stakeholders such as government officials, civil society actors, forest-dependent communities, national statistics offices, fiduciary control agencies, academia, and the media.

597

Launched in 2012, the PGA further aims at enhancing stakeholder‟s engagement participation in REDD+ governance. In January 2013, the preliminary results of the PGA/REDD+ research team was presented and discussed in a multi-stakeholder forum.

598

592

As above

593

As above

594

As above

595

As above

596

As above

597

Nigeria NPD (n 125 above) 35

598

Nigeria R-PP (n 139 above) 21

295

There are other reported consultative meetings held in connection with REDD+ activities. The

Technical Consultation on Social and Environmental Safeguards in Nigeria was convened between 2 and 4 August 2011 to discuss the multiple benefits and risks associated with

REDD+.

599

At that forum, participants provided comments on the draft UN-REDD Social and

Environmental Principles & Criteria. On 20 August 2011, a Stakeholder workshop took place to review the comments received on the draft Nigeria REDD+ Readiness Programme, and proposed revisions and improvements, in the light of comments. On 21 July 2013, another round of R-PP consultation was convened to present the draft REDD+ R-PP to civil society members from

CRS, potential new states and national level stakeholders in Abuja for their input.

600

Attention was paid at that meeting on consultation mechanism, stakeholder concerns and suggestions for a stronger involvement of the civil society,

601 and with input this was submitted to the UN-REDD

Board in november 2013.

While the RPP documents series of meetings which have been held so far in connection with preparation for REDD+ activities,

602

concerns still exist that key stakeholders particularly the forest-dependent communities are not adequately represented at meetings. It has been reported that communities have in fact being wary of REDD activities because forest-dependent communities who are the traditional custodians of native forests have not been effectively involved in the REDD negotiation process.

603

Hence, in the guise of implementing REDD+, the concern has been expressed that these populations are likely going to be evicted from their land and denied access to the forests that constitutes the basis of their culture and livelihoods.

604

Indeed, the current view is that awareness about the mechanism remains low at all levels of engagement and that the attraction in REDD+ for the Nigerian government is not the protection or safeguard of the environment. Rather, it is the huge funds involved in the programme.

605

599

As above

600

As above

601

„Notes from R-PP civil society consultations‟ FCPF R-PP CSO consultative meeting held on 22 July 2013, Organised by

UNDP/Federal Ministry of Environment, Abuja in Nigeria‟ Annex 1b (ii) to the Nigeria R-PP (n 139 above)

602

Nigeria R-PP (n 139 above) 56-57

603

„Don‟t sale forests, groups urge Nigerian governments‟ Appendix xiv to Nigeria Preliminary Assessment (n 133 above);

REDD Monitor „A wolf in sheep‟s clothing: REDD questioned in Cross River State, Nigeria‟ http://www.reddmonitor.org/2011/04/15/a-wolf-in-sheeps-clothing-redd-questioned-in-cross-river-state-nigeria/ (accessed 23 June 2014)

604

As above

605

As above

296

This concern resonates in the review of the R-PP of Nigeria. The Technical Advisory Panel

(TAP), in its view comments that in spite of reported recognition given to community participation, much still requires to be done. Particularly, the RPP is criticised for not indicating any „strong programme to support communities to build strong organisational structures and be equipped with the basic skills to participate in REDD+ projects‟. This, in its view, is necessary so as to make these communities competent long term allies of REDD+ programmes.

606

The TAP considers that the institutional arrangement for REDD+ activities particularly at the national level may lead to inefficiency of the mechanism. For instance, the TAP reasons that considering the federal structure of the country, there is need for R-PP to propose fewer but efficient structures for the management of REDD+ at both Federal and State levels.

607

This will reduce the potential risks of having too many structures and administrative layers, with attendant inefficiencies.

608

Particularly, the TAP regrets inadequate participation of forest users and community participation groups and recommends that the representation of such groups is vital in a National Stakeholder Platform for REDD+.

609

The foregoing comments, however, ignore the crux of the issue that the approach so far being taken proceeds on the assumption of state ownership of land. Effective engagement of the forest- dependent communities in Nigeria in preparing for REDD+ activities will remain illusory if the issue of customary ownership of land is not safeguarded in the process of preparation. Excluding tenure security for forest-dependent communities in the REDD+ will continually undermine participation in the programme.

ii. Carbon rights and benefit-sharing

To accord carbon rights to the forest-dependent communities or involve them in equitable benefit-sharing without security of tenure is hardly possible. It is an important incentive for them to protect the area and fulfill the ultimate end of REDD+. According to the RPP, the National

REDD+ Programme will aim at land tenure and use rights to local forest groups.

610

It also

606

Nigeria synthesis report (n 474 above) 3

607

Nigeria synthesis report (n 474 above) 4

608

As above

609

As above; this viewpoint was also confirmed by a participant from Nigeria at the UNFCCC „Africa Regional Workshop for

Designated National Authorities‟ 30 June-4 July 2014, Windhoek, Namibia

610

Nigeria R-PP (n 139 above) 52

297

indicates the importance of defining the concept of „carbon concession‟ to encompass „rights by individuals, communities, or the state, or a mix of rights and responsibilities among them‟.

611

However, this suggestion is hardly possible without revamping the entire framework dealing with land tenure and use in Nigeria. For instance, as earlier mentioned, forest-dependent communities or indigenous peoples in Nigeria cannot enjoy carbon rights or exercise grant of concessions except if land tenure and use is recognised.

Closely associated with the foregoing is the issue of benefit-sharing. While the specialised law in

CRS at least embodies provisions dealing with carbon and concessions,

612

these provisions seem redundant due to continuing influence of the Land Use Act which prescribes an unhelpful approach to compensation. According to the Land Use Act, where land is expropriated by the state, compensation will apply as follows:

If the holder or the occupier entitled to compensation under the section is a community, the governor may direct that any compensation payable to it shall be paid to the chief or leader of the community to be disposed of by him for the benefit of the community, in accordance with applicable customary law.

613

The implication of the above provision on benefit-sharing is that the government prefers to deal with chief or leader of the forest-dependent communities for the purpose of sharing proceeds emanating from REDD+ process. This is risky in that with such an approach, benefits may not get to the hand of the mainstream population. Obeku has, for instance, demonstrated that in case of compensation for land compulsorily acquired for oil production in the Niger Delta Region, compensation is paid by government to community headsmen and community members hardly receive any portion.

614

It is therefore not surprising that in reviewing the RPP, the TAP notes that it is important that government should pay attention to the issue of carbon rights and benefits as these are an important framework on which depends the participation, particularly by rural communities,

615

and arguably their co-operation for the success of REDD+.

611

Nigeria R-PP (n 139 above) 61

612

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 9(3)

613

Land Use Act, section 29 (3)(b)

614

K Ebeku „Oil and the Niger Delta people: The injustice of the Land Use Act‟ (2001) CEPMLP Internet Journal 9-14; also see

Constitutional Rights Project (CRP) „Land, oil and human rights in Nigeria‟s delta region (1999, CRP) 15-16

615

Nigeria synthesis report (n 474 above) 9

298

iii. Grievance mechanism and access to remedies

As part of the evolving national REDD+ activities, according to the R-PP, a mechanism for securing effective communication and redressing of concerns is necessary. Examples of such concerns may arise over the implementation of measures or the process of seeking Free Prior

Informed Consent (FPIC).

616

This is indeed important to ensure that the concerns of marginal or vulnerable groups are adequately represented and respected.

617

However, in prescribing the appropriate grievance mechanism, the R-PP proposes for Nigeria an „internet-based grievance mechanism and a „red-line‟ to the REDD+ Secretariat. In explaining what is meant by the „redline‟, it indicates that this includes phone calls on REDD+ including complaints.

618

The above grievance model being proposed appears culturally insensitive and inconsiderate of the realities of the forest-dependent communities who may have no access to any of these facilities let alone utilise it for complaint solving purposes. There is potential adverse consequence to this in that it may lead to self-help for the resolution of their grievances and access to deserving remedies. In preparing for the REDD+ process, this option is infact reactive rather than preventative and further undermine the concept of dispute resolution as understood by these populations. It is thus not surprising that in reviewing the R-PP, the TAP notes that as part of the implementation process, there is need for a clear grievance mechanism indicating procedures of seeking redress, „which goes beyond communication of problems and concerns‟.

619

While, under the CRS Law on Sustainable Management of Forest Resources, the options of resorting to a „dispute settlement committee‟ for resolving issues is on offer, 620

this is of little assistance. The Committee is set up by the commission pursuant to the law and not in line with the customs and traditions of these communities.

621

Besides, without the recognition of a secured tenure system for indigenous peoples, the grievance mechanism model being proposed by the R-PP for access to remedy cannot be effective. This is because the non-recognition of tenure already defines the scope of disputes which may be entertained by such dispute settlement

Committee.

616

Nigeria R-PP (n 139 above) 32

617

Nigeria R-PP (n 139 above) 16

618

Nigeria R-PP (n 139 above) 32

619

Nigeria synthesis report (n 474 above)

620

Cross-River Law on Sustainable Management of Forest Resources (n 546 above) section 60(5)

621

As above

299

5.3 Conclusion

The national level offers a platform for the domestic application of international policy content.

However, evidence from states in Africa such as Tanzania, Zambia and Nigeria indicates the trend in the national application of international climate change regulatory framework on adaptation and mitigation may not safeguard the land tenure and use of indigenous peoples in

Africa. With respect to adaptation, the process and compilation of NAPA and national communications are necessary to access different adaptation funds on offer at the international level. In consequence, the NAPA of Tanzania indicates that adaptation concerns in that country include human, social, financial and physical losses due to the adverse impacts of climate change. Issues detailed for Zambia include climate adverse effects around livelihoods, health and socio-economic sectors. For Nigeria, being a non-LDC state, it has filed a communication with an adaptation component instead of a NAPA which reveals soil erosion, flooding and the loss of livestock as general challenges. However, the NAPA and national communication of these states are silent on pertinent issues relating to land use and tenure system of indigenous populations.

This raises a serious doubt about the participation of indigenous peoples, quality of the process, accessibility to adaptation funds and neglect of the coping strategies of indigenous peoples.

As a core mitigation measure, Tanzania, Nigeria and Zambia are participating in the REDD+ initiative under the UN-REDD national programme. The UN-REDD Programme between 2011 and 2015 focuses on rendering support to the participating countries in getting ready for the implementation of REDD+. A critical aspect of this stage is the reform of the policy and legal environment in preparation for the implementation of the REDD+. Efforts are being made by

Tanzania, Nigeria and Zambia to reform laws in preparation for the implementation of the

REDD+. Nonetheless, an assessment of the domestic regulatory framework in place for the implementation of the REDD+ in relation to indigenous peoples‟ land tenure and use, reveals that the institutional, as well as the normative, reality at the domestic level does not offer much protection to indigenous peoples. In addition to the inadequate protection of land tenure and use, the arrangement can be faulted on the grounds of inadequate attention to participation, carbon rights and benefit-sharing, as well as a grievance mechanism and access to remedy. The next chapter demonstrates how human rights can be constructed as a regional response to address this weakness.

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Chapter 6

The inadequacy of the national climate change regulatory framework in relation to indigenous peoples’ lands: Human rights as regional response

6.1 Introduction

The preceding chapter demonstrates that the climate change regulatory framework at the national level in relation to the protection of indigenous peoples‟ lands is inadequate and of implications for other issues, namely indigenous peoples‟ participation, carbon rights and benefit-sharing, as well as access to grievance mechanism and remedies. Against this backdrop, this chapter argues that recourse can be had to regional human rights instruments and institutions to address the inadequate protection of indigenous peoples‟ lands under th