|
I.
INTERNATIONAL AUTHORITIES AND PRECEDENTS
1. Draft United Nations Declaration on the Rights of Indigenous Peoples
(UN 1994)
Article
26: "Indigenous peoples have the right to own, develop, control and use
the lands and territories, including the total environment of the lands,
air, waters, coastal seas, sea-ice, flora and fauna and other resources
which they have traditionally owned or otherwise occupied or used. This
includes the right to the full recognition of their laws, traditions, and
customs, land-tenure systems and institutions for the development and
management of resources, and the right to effective measures by States to
prevent any interference with, alienation of or encroachment upon these
rights."
Article
30: "Indigenous peoples have the right to determine and develop
priorities and strategies for the development or use of their lands,
territories and other resources, including the right to require that States
obtain their free and informed consent prior to the approval of any project
affecting their lands, territories and other resources, particularly in
connection with the development, utilization or exploitation of mineral,
water or other resources. Pursuant to agreement with the indigenous peoples
concerned, just and fair compensation shall be provided for any such
activities and measures taken to mitigate adverse environmental, economic,
social, cultural or spiritual impact."
2.
C 169, Convention on Indigenous and Tribal People (ILO Convention
1989)
Article
6
1. "In applying the
provisions of this Convention, governments shall:
(a) consult the peoples
concerned, through appropriate procedures and in particular through their
representative institutions whenever consideration is being given to
legislative or administrative measures ^ which may affect them directly;
(b) establish means by which
these peoples can freely participate to at least the same extent as other
sectors of the population, at all levels of decision-making in elective
institutions and administrative and other bodies responsible for policies
and programs which concern them;
(c) establish means for the
full development of these peoples' own institutions and initiatives, and in
appropriate cases provide the resources necessary for this purpose.
2. The consultations
carried out in application of this Convention shall be undertaken, in good
faith and in a form appropriate to the circumstances, with the objective of
achieving agreement or consent to the proposed measures.
3. Governments shall
ensure that, whenever appropriate, studies are carried out, in co-operation
with the peoples concerned, to assess the social, spiritual, cultural and
environmental impact on them of planned development activities. The results
of these studies shall be considered as fundamental criteria for the
implementation of these activities."
Article 7(4): "Governments
shall take measures, in co-operation with the peoples concerned, to protect
and ^ preserve the environment of the territories they inhabit."
3.
Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social And Cultural Rights (OAS 1988)
Article 11: "Right to a
Healthy Environment
1. Everyone shall have
the right to live in a healthy environment and to have access to basic
public services.
2. The States Parties
shall promote the protection, preservation, and improvement of the
environment."
4.
Carta Internacional Americana de Garantías Sociales (1948)
Articulo 39. "El Estado ejercerá su tutela para
preservar, mantener y desarrollar el patrimonio de los indios o de sus
tribus, y promeverá la explotación de las riquezas naturales,
industriales, extractivas o cualesquiera otras fuentes de rendimiento,
procedentes de dicho patrimonio o relacionadas con éste, en el sentido de
asegura, cuando sea oportuna, la emancipación económica de las
agrupaciones autóctonas”.
5. International
Covenant on Civil and Political Rights (UN 1966)
Article 1(2): “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.”
6.
International Covenant on Economic, Social and Cultural Rights (un
1966)
Article 1(2): “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.”
7.
Convention on Biological Diversity (UN 1992)
Article
8. “In situ Conservation
Each Contracting Party shall, as
far as possible and as appropriate:
(b) Develop, where necessary,
guidelines for the selection, establishment and management of protected
areas or areas where special measures need to be taken to conserve
biological diversity.
(j) Subject to its national
legislation, respect, preserve and maintain knowledge, invocations and
practices of indigenous and local communities embodying traditional
lifestyles relevant for the conservation and sustainable use of biological
diversity and promote their wider application with the approval and
involvement of the holders of such knowledge, innovations and practices and
encourage the equitable sharing of the benefits arising from the utilization
of such knowledge, innovations and practices.
(m) Cooperate in providing
financial and other support for in-situ conservation.”
Article 10: "Sustainable Use
of Components of Biological Diversity
Each Contracting Party shall, as
far as possible and as appropriate: ...
(c) Protect and encourage
customary use of biological resources in accordance with traditional
cultural practices that are compatible with conservation or sustainable use
requirements.”
(d) Support local populations to
develop and implement remedial action in degraded areas where biological
diversity has been reduced; and
(e) Encourage cooperation between
its governmental authorities and its private sector in developing methods
for sustainable use of biological resources”"
8.
Universal Declaration of Human Rights (UN 1948)
Article 17(1): “Everyone has
the right to own property alone as well as in association with others. (2)
No one shall be arbitrarily deprived of his property.”
9.
Committee on the Elimination of Racial Discrimination, General
Recommendation XXIII (51) Concerning Indigenous Peoples (August 1997)
Para. 4: "The Committee
calls in particular upon States parties to:
d. 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."
10.
Non-Legally Binding Authoritative Statement of Principles for a
Global Consensus on the Management, Conservation and Sustainable Development
of All Types of Forests (UN doc. 1992)
Para.
5 (a): "National forest policies should recognize and duly support the
identity, culture and the rights of indigenous people, their communities and
other communities and forest dwellers.
Appropriate conditions should be promoted for these groups to enable
them to have an economic stake in forest use, perform economic activities
and achieve and maintain cultural identity and social organization, as well
as adequate levels of livelihood and well being, through, inter alia, those
land tenure arrangements which serve as incentives for the sustainable
management of forests."
-Para. 12(d): "Appropriate
indigenous capacity and local knowledge regarding the conservation and
sustainable development of forests should, through institutional and
financial support and in collaboration with the people in the local
communities concerned, be recognized, respected, recorded, developed and, as
appropriate, introduced in the implementation of programmes. Benefits arising form the utilization of indigenous knowledge
should therefore be equitably shared with such people."
11.
African
Charter on Human and Peoples’ Rights (Banjul Charter 1981)
Article 9(1): “Every individual
shall have the right to receive information.”
Article 24: “All peoples shall
have the right to a general satisfactory environment favorable to their
development.”
12. Copenhagen Declaration on Social Development and Programme of Action
of the World summit for Social Development (Copenhagen, Denmark, March 6-12,
1995)
Annex II:
Programme of Action of the World Summit for Social Development
Content.
Chapter II. Eradication of
Poverty.
-Para.
B(32): "Rural poverty should be addressed by: (f) Protecting, within
the national context, the traditional rights to land and other resources of
pastoralists, fishery workers and nomadic and indigenous people, and
strengthening land management in the areas of pastoral or nomadic activity,
building on traditional communal practices, controlling encroachment by
others. (g) Promoting education, research and development on farming systems
and smallholder cultivation and animal husbandry techniques, particularly in
environmentally fragile areas, building on local and traditional practices
of sustainable agriculture. (h) Strengthening agricultural training and
extension services to promote a more effective use of existing technologies
and indigenous knowledge systems."
13. World
Bank
-
Operational Directive 4.20 (OD 4.20) (September 1991)
“8. The Bank’s policy is that
the strategy for addressing the issues pertaining to indigenous peoples must
be based on the informed participation of the indigenous people themselves.
Thus identifying local preference through direct consultation,
incorporation of indigenous knowledge into project approaches, and
appropriate early use of experienced specialists are core activities for any
project that affects indigenous peoples and their rights to natural and
economic resources.”
15(a)(ii): “Particular
attention should be given to the rights of indigenous peoples to use and
develop the lands that they occupy, to be protected against illegal
intruders, and to have access to natural resources (such as forests,
wildlife, and water) vital to their subsistence and reproduction.”
Article15(c): “When local
legislation needs strengthening, the Bank should offer to advise and assist
the borrower in establishing legal recognition of the customary or
traditional land tenure systems of indigenous peoples.
Where the traditional lands of indigenous peoples have been brought
by law into the domain of the state and where it is inappropriate to convert
traditional rights into those of legal ownership, alternative arrangements
should be implemented to grant long-term renewable rights of custodianship
and use to indigenous peoples.”
Article 15(d): “Mechanisms
should be devised and maintained for participation by the indigenous people
in decision making through project planning, implementation, and
evaluation.”
Article 15(e): “Plans that draw
upon indigenous knowledge are often more successful than those introducing
entirely new principles and institutions.”
- Operational Manual,
"Description and Sample Outline of an Environmental Action Plan,
Operational Directive 4.02 , (July 1992)
Para. 4: "A Comprehensive
EAP [Environmental Assessment Plan] normally covers a broad range of topics
similar to those listed below. The
weight accorded to each item covered depends on local circumstnaces.
(b) An analysis of major
cross-sectoral issues (e.g., demography, public health and safety, cultural
and natural heritage) and socioeconomic factors important to the environment
and resource use. Basic
information required for the cross sectoral analysis includes the following:
(iv) Socioeconomic factors: The
location and occupation of indigenous peoples; identification of high risk
groups, key groups of resource users, and patterns of social organization at
the grass roots; resettlement; land tenure systems; traditional farming and
grazing practices."
14.
Rio
Declaration on Environment and Development (June 13, 1992)
Principle
22: "Indigenous people and their communities, and other local
communities, have a vital role in environmental management and development
because of their knowledge and traditional practices. States should
recognize and duly support their identity, culture and interests and enable
their effective participation in the achievement of sustainable
development."
15.
Agenda 21: Programme of Action for Sustainable Development, Rio
Declaration on Environment and Development.
Statement of ^ Principles. Final Text of Agreements Negotiated by
Governments at UNCED Conference, June 1992, Rio de Janeiro, Brasil
23(2): " ...in the more
specific context of environment and development, the need for new forms of
participation has emerged. This includes the need of individuals, groups and
organizations to participate in environmental impact assessment procedures
and to know about and participate in decisions... [They].. should have
access to information relevant on environment and development held by
national authorities, including information on products and activities that
have or are likely to have a significant impact on the environment, and
information on environmental protection measures."
26.1 “Indigenous peoples and
their communities have an historical relationship with their lands... They
have developed over many generations a holistic traditional scientific
knowledge of their lands, natural resources and environment.... In view of
the interrelationship between the natural environment and its sustainable
development and the cultural, social economic and physical well being of
indigenous people, national and
international efforts to implement environmentally sound and sustainable
development should recognize, accommodate, promote and strengthen the role
of indigenous peoples and their communities."
"...Objectives
26.3 In full partnership with
indigenous people and their communities, Governments and, where appropriate,
intergovernmental organizations should aim at fulfilling the following
objectives: ...
(ii) Recognition that the lands
of indigenous people and their communities should be protected from
activities that are environmentally unsound or that the indigenous people
concerned consider to be socially and culturally inappropriate: ...
(iii) Recognition of their
values, traditional knowledge and resource management practices with a view
to promoting environmentally sound and sustainable development.
(iv) Recognition that traditional
and direct dependence on renewable resources and ecosystems, including
sustainable harvesting, continues to be essential to the culture, economic
and physical well being of indigenous peoples and their communities.
(vi) Support for alternative
environmentally sound means of production to ensure a range of choices on
how to improve their quality of life so that they can effectively
participate in sustainable development.
(vii) Involvement of indigenous
people and their communities at the national and local levels in resource
management and conservation strategies..."
"Activities to incorporate
their values, views and knowledge, including the unique contribution of
indigenous women, in resource management and other policies and programs
that may affect them
c) Strengthen research and
education programs aimed at:
i) achieving a better
understanding of indigenous peoples knowledge and management experience
related to the environment, and applying this to contemporary development
challenges.”
16. Stockholm Declaration, or the Declaration on the United Nations
Conference on the Human Environment (1972)
Principle 1: “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,
and he bears a solemn responsibility to protect and improve the environment
for present and future generations.”
Principle 13: “In order to
achieve a more rational management of resources and thus to improve the
environment, States should adopt an integrated and co-ordinated approach to
their development planning so as to ensure that development is compatible
with the need to protect and improve the human environment for the benefit
of their population.”
Principle 14: “Rational
planning constitutes an essential tool for reconciling any conflict between
the needs of development and the need to protect and improve the
environment.”
Principle 15: “Planning must be
applied to human settlements and urbanization with a view to avoiding
adverse effects on the environment and obtaining maximum social, economic
and environmental benefits for all. In
this respect projects which are designed for colonialist and racist
domination must be abandoned.”
Principle 26: “Man and his
environment must be spared the effects of nuclear weapons and all other
means of mass destruction. States must strive to reach prompt agreement, in
the relevant international organs, on the elimination and complete
destruction of such weapons...”
17.
Declaration of Guácimo, signed by the Presidents of Costa Rica, El
Salvador, Guatemala, Honduras, Nicaragua and Panama, and the Prime Minister
of Belize (Guácimo, Limon, Republic of Costa Rica, August 20, 1994)
-"We view economic growth as
growth with equity that does not damage our natural resource base..."
-"Central Americans are
aware of the direct relationship between environmental protection and the
quality of human life..."
-"We will support
transparency and honesty in the management of information on public
affairs."
18.
Concausa Declaration, signed by the Presidents of Costa Rica, El
Salvador, Guatemala, Honduras, Nicaragua, Panama, the United States, and the
Prime Minister of Belize (Miami, Florida, December 10, 1994)
Annex: Action Plan, I.
Conservation of Biodiversity: the United States Government and Central
American Governments "declare their political commitment" to
"[p]romote the participation of indigenous people in decision that
affect the conservation and sustainable use of the biodiversity of Central
America."
19.
Alliance for Sustainable Development documents signed
by signed the Presidents of Costa Rica, El Salvador, Guatemala,
Honduras, Nicaragua, and Panama and a Representative of the Prime Minister
of Belize, at the Central American Ecological Summit for Sustainable
Development in Managua, Nicaragua, (October 12, 1994)
Principles of the Alliance for
Sustainable Development:
"The following are the seven
fundamental principles that we the citizens of Central America have adopted
in our pursuit of sustainable development. They will be reflected in all the
policies, programs and activities promoted by our countries, individually or
collectively, and by civil society, inasmuch as they are the basis of
objectives and commitments of common interest.
1. Respect for All Life Forms:
Sustainable development cannot be achieved at the expense of other groups or
future generations.
5. Respect for Cultural Plurality
and Ethnic Diversity:
Indigenous peoples generally live
in areas of great biological diversity, and their lifestyles are frequently
in harmony with the natural environment. Their world view is compatible with
the objective of sustainable development in that it perceives nature as
inseparable from human beings.
Therefore, respect for ethnic
diversity and the development of indigenous cultures, an objective in
itself, is synonymous with respect for the environment. Nevertheless, if
respect for the environment is to translate into an effective practice,
people must have access not only to ideas, but also to possibilities for
self-sustaining development."
20.
Summit of the Americas Plan of Action, signed by 34 heads of state
participating in the Summit of the Americas (Miami, Florida 1994)
IV. "Guaranteeing
Sustainable Development and Conserving Our Natural Environment for Future
Generations
22. Partnership for Biodiversity.
Support democratic governmental mechanisms to engage public
participation, particularly including members of indigenous communities and
other affected groups, in the development of policy involving conservation
and sustainable use of natural environments. The forms of this participation
should be defined by each individual country."
21. Resolution
(a) on the catastrophic environmental impact of large-scale
deforestation in Sarawack, Malaysia, adopted in 1988 by the European Parliament
“Large scale logging in Sarawak
constitutes a serious threat to the environment and to the indigenous people
who live in and from the tropical rain forest. When logging concessions are
granted, insufficient attention is paid to such threats and the traditional
land rights of indigenous peoples are ignored.”
22.
Resolution
(k) on “The human and ecological disaster in the Pastaza Region in
Ecuador, adopted in 1991 by European Parliament
-The Parliament expresses:
“concern about the increase of oil exploitation over the last 20 years in
the Ecuadorian rainforest by Conoco, Arco, Unocal, Occidental, City,
Bristish Gas, Parker Construtore and Texaco. Continued exploration and
extraction along existing exploitation methods by oil companies is not
contributing to sustainable development and can do serious damage to the
region.”
-The Resolution: “calls upon
the Ecuadorian government to recognize the rights of their indigenous
people”.
23. Preliminary Report prepared by Mrs. Fatma Zohra Ksentini, Special
Rapporteur, pursuant to Sub-Commission on the Prevention of Discrimination
and Protection of Minorities resolutions 1900/7 and 1990/27
(E/CN.4/Sub.2/1991/8, 2 Aug. 1991)
Para. 27. "The prevailing
development process, as is being increasingly acknowledged by Member States,
is not only damaging to the environment but may also be harming the way of
life of many people, and especially indigenous peoples. Indeed, it can be said that all environmental degradation has
a direct impact on the human rights of the indigenous peoples dependent on
that environment. For example, where there is unrestrained deforestation,
forest-dwelling indigenous peoples may be forced from their traditional
homelands, may thereby be denied a means of livelihood, may be driven to
take refuge among strangers and, in the most extreme cases, may fall victim
to diseases against which they have no immunity. Similarly desertification,
a phenomenon which is as much man-made as it is an act of nature, has led
many self-sufficient pastoralists to an impoverished existence in refugee
camps. Even smaller scale environmental sacrifices - the inundation caused
by dam-building, mining, prospecting and so on - have affected indigenous
peoples all over the world, causing them to leave lands they have occupied
for generations, often without their willing consent or any compensation.
Indigenous peoples may, thus, be victims of inappropriate development and
environmental degradation. As such their fundamental freedoms and human
rights are affected."
24. Council of European Union Resolution on Tropical Forest (May 29,
1990)
"The Community and its
member State recognize the necessity of a world wide co-ordinated strategy
for tropical for tropical forest resources and endorse i.e. the following
principles and activities;
Particular importance has to be
attached to the social dimension of forestry. The traditions and experience
of Indigenous forest dwellers should be respected and drawn upon while at
the same time the needs and problems of new and those living on the
periphery of the forest should be addressed.
Active steps should be taken to
involve local populations in planning and implementation of projects."
25.
Report
of European Commission of October 1990 on “Environmental problems in the
Amazon region”, “Measures to protect the Ecology of the Tropical
Forests” and on “the Conservation of Tropical Forest”
The Commission declares:
"The need to protect
Indigenous Peoples -
The life, culture and,
occasionally the very existence of indigenous peoples are intimately bound
up with the forest. This concern is one of the priorities which the
Commission is endeavoring to advance in the context of a wide-ranging pilot
program to save the Amazon forest.”
[ Table of Contents | Previous | Next ] |