Climate change and its heightening impacts have been the center of domestic and international talk for decades. Its irreversible impacts on indigenous communities have both pushed for greater attention from governments and nongovernmental organizations, but also exposed faults within legal systems that allow for injustice and unequal rights for ethnic minorities across the world. Often legal systems do little to accommodate the protection these communities require.Without newer reforms, underdeveloped policies will continue to provide little help to those impacted the most by environmental damage.
Randall S. Abate, Professor of Law and Director of the Center for International Law and Justice at Florida A&M University College of Law in Orlando, Florida, provided insight into the dangers and implications of climate change impacts on indigenous peoples, with an emphasis on US policy-making:
“Indigenous peoples are at the tip of the spear of climate change impacts.”
Without state intervention and the passing of laws that aid their way of survival, indigenous communities will be the first to experience the worst of these changes. These issues have given rise to concerns that have generated significant discussion among governments, nongovernmental organizations and legal institutions. As the most vulnerable, shouldn’t newer laws be drafted to improve the protection that these groups deserve?
Indigenous communities although different in their cultural, social aspects, are united by this commonality: the burdening changes of the environment. They will always be the most vulnerable to global warming. Why is this important? For one, indigenous peoples’ voices and rights are not always equally represented. Social platforms and the media do not always provide equal opportunities for minority groups to challenge government responses that often impair their unique connection to land.
Drawing a line of accountability and establishing liability for those responsible is also challenging. “Governments, corporations and all of us are the three main actors that can be sued.” But how can we assign blame? Is it based on proximity or nationality? Embedded in this argument is the litigation issue: “we are one among many actors, public and private, everyone has a carbon footprint.” Physical effects of global warming can be ascribed to the rises in sea levels, melting ice caps, droughts, which all affect groups located in every corner of the globe. These impacts affect hunting grounds, fishing practices, cultural and religious traditions; qualities that define the indigenous peoples’ way of life.
In the highly publicized Inuit Petition to the Inter-American Commission on Human Rights, these Arctic indigenous peoples asserted that climate change adversely impacted their “right to be cold” as reflected in many human rights including the right food, right to shelter, and right to culture. The petition sought to hold the US accountable for the climate change impacts that Inuit suffered on the premise that the US refused to regulate greenhouse gas emissions in its nation by its failure to become a party to the Kyoto Protocol regime on climate change regulation. The Inter-American Commission dismissed the petition.
Specific rights have been recognised and assigned to certain minority groups. In the 1980s, the new field of environmental justice evolved in the US to recognize and respond to the disproportionate impacts of environmental harms on communities that are less protected, specifically ethnic minority groups. However such reforms and passing of newer laws often lack sufficient funding combined with the inability to adapt. A newer phenomenon in recent years is the lack of political will from governments that indigenous peoples face when displaced after a climate crisis. “How can we maintain our traditional lifestyle, given this is our lifestyle and it has been ruined?” High rates of suicide have also become common among Inuit teenagers when faced with the prospect of a future that involves progressive melting and erosion of their ice-based culture from the effects of climate change.
The need for more effective substantive law protections has also bred a new form of criticism against the US government. Although indigenous groups are considered sovereign and independent, the federal trust responsibility doctrine requires the US government to provide protection to these peoples when necessary to ensure the sustainability of indigenous peoples’ natural and cultural resources. “The state can be seen as a parent taking care of a teenager”—simultaneously offering support when needed and offering autonomy for sovereign decision-making in indigenous communities. As a community that experienced extreme forms of colonization and oppression, funneled to reservation lands then marginalized when federal governments bestow protection, is this approach the most appropriate? Even today, policies in the US still hold subtle indications “the other” still requires help from the colonizer (US and other nation-states). “Can you really be a hero if you’ve just beaten someone up then lent them your hand?”
Drafting of international policies including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) have seen substantial success, partly because of the active involvement of indigenous peoples in its implementation. As a formal member, the US has agreed that indigenous groups should be given special rights. However, what makes declarations more appealing than the treaties; why is the US an active member in UNDRIP but not treaties like ILO No. 169, which require member states to respect indigenous peoples’ right to self-determination and free, prior and informed consent? As argued by Abate, treaties require a high level of binding commitments and accountability. Alternatively, declarations push for aspirations on what policies need to be reinforced, often with little emphasis on accountability.
Procedural protections include the right to public participation, right to access to justice before tribunals, and the right to access to justice. Free prior informed consent (FPIC) before environmental actions occur is available to respect the rights of indigenous peoples to have an opportunity to be informed about what government activities may occur on their lands. However FPIC lacks clear definitions and guidelines. For example in Brazil, if the central government identifies a project to be within the general will of the society, indigenous peoples’ consent is not required for the project to proceed.
Indirect impact of climate change measures
Well-intentioned climate change regulation measures, which have a focus on mitigation measures, have also caused negative impacts to the right of indigenous peoples to their traditional lands. Measures including Reducing Emissions from Deforestation and Degradation (REDD) operate on the assumption that forests must not be harvested to ensure the carbon sequestration benefits of intact tropical forest ecosystems. Such a policy, while effective as a climate mitigation tool, often has the effect of displacing indigenous communities from their traditional lands because they lack traditional land tenure rights to assert ownership of the forest lands that they have occupied for generations.
Funding commitments are always a major challenge for governments in seeking to support climate change adaptation efforts for indigenous communities. As Abate noted, a tiny Native Alaskan village of 400 residents that is facing an imminent need to relocate because of severe coastal erosion due to sea level rise, requires $400 million USD to ensure safe relocation to another site just 10 miles down the road.
The US government and the state government of Alaska have not yet offered this funding, so the indigenous community has since resorted to the need to seek to sue major private companies that have contributed to global greenhouse gas emissions that cause human-induced climate change to pay the relocation costs. US courts rejected this claim. Moreover, indigenous communities in developed countries like the US are not eligible for international climate change adaptation funding, which is only available for developing countries. Protection is restricted to the federal level to ensure protection of these groups. Likewise, developed countries including Australia and New Zealand, which are capable of facilitating relocation of island nations that face the threat of inundation from sea level rise, are not always so accommodating in what will soon become a significant international law problem of how to respond to the plight of climate refugees; many of whom will be indigenous communities in the Arctic and South Pacific regions.
Wave of consciousness
“What pushes for change the most are natural disasters that raise public consciousness that climate change is real and happening now.” As seen in the US in 2012, Hurricane Sandy prompted a more engaged and active civil society response to climate change regulation, particularly among the younger generation. This wave of consciousness could be the main key driving forward regulations that counter the current prognosis of climate injustice. But indigenous communities should not have to wait for more climate change-related disasters to secure adequate legal protections because they already face an urgent crisis in seeking to adapt climate change impacts. Immediate and ambitious legal responses at the domestic and international levels are necessary to ensure indigenous communities’ survival.
Professor Abate has published and presented widely on environmental law topics, with a recent emphasis on climate change law and justice. In 2013 he published Climate Change and Indigenous Peoples: The Search for Legal Remedies (Edward Elgar Publishing Co.) His latest book Climate Change Impacts on Ocean and Coastal Law, was published by Oxford University Press in December 2014.
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