The Rights of Indigenous People and Nature

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Indigenous peoples have rights, responsibilities, and covenants which are essential to survival, not only of Indigenous peoples but of all humans, and life.

The World Bank estimates:

“…Traditional Indigenous territories encompass up to 22 percent of the world’s land surface and they coincide with areas that hold 80 percent of the planet’s biodiversity.”

This biodiversity is under threat from mining, agriculture, deforestation, fossil fuels, and climate change. And, the world’s biodiversity cannot be replaced. Today, thousands of species face extinction, and hundreds of Indigenous languages are no longer spoken.  Keeping this balance, or the covenant of humans and our world are essential to our collective survival.

 

United Nations Declaration on the Rights of Indigenous People

These responsibilities are reaffirmed in the United Nations Declaration on the Rights of Indigenous Peoples, signed by the United States. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is intended to protect the collective and individual rights of Indigenous Peoples and affirm their rights related to culture, environment, health, education, economic, and social development.  This declaration has been a long time coming. Its roots trace back to the Haudenosaunee and other Indigenous groups visiting the UN for decades. The declaration itself took over two decades to be adopted. It is the most comprehensive international instrument to set the standards for the promotion and protection of Indigenous People. The process of negotiating the declaration has increased global solidarity among Indigenous People.  This movement is now pushing for implementation of the declaration in all levels of government- local, state, and federal.

The Declaration establishes a universal framework of minimum standards for the survival, dignity, well-being and rights of the world's indigenous peoples. The Declaration addresses both individual and collective rights; cultural rights and identity; rights to education, health, employment, language, and others. It outlaws discrimination against indigenous peoples and promotes their full and effective participation in all matters that concern them. It also ensures their right to remain distinct and to pursue their own priorities in economic, social and cultural development. The Declaration explicitly encourages harmonious and cooperative relations between States and indigenous peoples.

While the declaration is not legally binding, it represents the development of international legal norms and the evolution of standards-setting.  

In many countries, constitutional reform has codified the declaration into law.  New constitutions in Ecuador, Bolivia, Costa Rica, El Salvador, Nicaragua, Mexico, Kenya, and Myanmar contain elements of the declaration.  Bolivia has fully embraced the declaration, incorporating both Indigenous Peoples’ right to self-determination and self-government in their constitution.  Bolivia is also one of the early adopters of the Rights of Nature (see Rights of Nature section). Finland, Norway, and Sweden are also attempting to apply the declaration and have agreed to a Draft Nordic Sami Convention.  

The Declaration has also been cited in several legal decisions, including the historic Cal v. Belize case.  This case, brought by Maya people, argued for concessions for the exploitation of their natural resources without consent.  Their title was upheld and legal protection under the Belize Constitution was recognized. In the case, the Chief Justice of the Supreme Court of Belize, Abdulai Conteh directly referred to the Declaration, specifically Article 26, Para 1:

Indigenous Peoples have the right to the lands, territories, and resources which they have traditionally owned, occupied, or otherwise used or acquired

Additional applications of the Declaration in legal decisions include:

In Proprietors of Wakatū & Rore Staford v. Attorney General: Aotearoa (New Zealand), a claim by the Maori that the British Crown owed fiduciary duties for their failure to reserve 15,100 acres for the Maori.  Presiding Chief Justice Elias CJ quoted Article 40:

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

In Kichwa Indigenous People of Sarayaku v. Ecuador, it was found that Ecuador had violated both international and domestic law.  Ecuador did not obtain the Sarayaku’s Free, Prior and Informed Consent (FPIC) and disregarded the Sarayaku’s right to communal property and cultural identity.  Ecuador had used armed forces to support the State Petroleum Company’s destruction of the environment and sacred sites of the Sarayaku.

The Declaration was also used during the negotiations of the Paris Climate Accord to solidify the rights of Indigenous Peoples and the importance of traditional knowledge for climate change

The United States is one of numerous countries that supports the United Nations Declaration on the Rights of Indigenous Peoples.  Contamination from these pipeline projects would wipe out the practice of harvesting manoomin and all associated ceremonies. Manoomin is an intrinsic, identity-forming aspect of Anishinaabe life -- to lose access to these manoomin beds would devastate and permanently harm Anishinaabe culture.

The UNDRIP also contains provisions mandating free and informed consent from an affected tribal nation by the state. In this case, the state of Minnesota has failed to properly consult or even adequately consider the impacts of these projects on the indigenous peoples of the region. The damages that will result from these projects cannot be undone, nor can they be measurable in terms of losing an entire culture that has existed prior to the formation of the United States. A fossil fuel project should not be considered without fully examining cultural impacts and the potential losses that will occur if spills occur, which is a mathematical certainty.  

U.S. President Barack Obama announced that the United States would "lend its support" to the UN Declaration on the Rights of Indigenous Peoples:

"The aspirations it affirms, including the respect for the institutions and rich cultures of Native peoples, are one we must always seek to fulfill. . . I want to be clear: what matters far more than words, what matters far more than any resolution or declaration, are actions to match those words. And that’s what this conference is about. . . That’s the standard I expect my administration to be held to."

The statement is significant because the United States was one of only four countries that voted against the declaration when the UN General Assembly adopted it in 2007 and the last of those four to have reversed its former opposition.

The United States and Canada should abide by international declarations and agreements like UNDRIP. This has not been the case. The recent decision of the PUC to not include the Anishinaabe cultural impact assessment, prior to granting of any permits to the Enbridge Company for Line 3, is a clear violation of this. In short, the state of Minnesota has failed to properly consult or even adequately consider the impacts of these projects on the indigenous peoples of the region. The damages that will result from these projects cannot be undone, nor can they be measurable in terms of losing an entire culture that has existed prior to the formation of the United States. A fossil fuel project should not be considered without fully examining cultural impacts and the potential losses that will occur if spills occur, which is a mathematical certainty.

Full Declaration can be read here. 

The Rights of Nature

Stated in another way, if we naively attach our Indigenous categories of thought to colonial religious and legal language that does not have the ability to understand those concepts, then without a mechanism to keep our traditional understandings of those relationships intact, we are in constant risk of participating in our own cultural genocide

Mark Freeland

Relying on only the US legal system, or the international legal system restricts Indigenous People to a system developed through the logic of Euro-Westerners.  History has shown that engagement with this legal system has little success in protecting the land. Freeland (unpublished dissertation) has argued that this engagement runs the risk of the colonization of thought.  He stresses the importance of maintaining cultural and communal functionality in the midsts of these engagements. Since Indigenous communities constantly negotiate from a place of reduced efficacy, it is essential to identify methods of engagement that do not compromise Indigenous thought patterns while also providing better land protection.  

A movement that may allow this engagement is the advancement of the Rights of Nature

Rights of Nature is the recognition and honoring that natural ecosystems including trees, oceans, animals, mountains have rights just as human beings have rights. Rather than treating nature as property under the law, the time has come to recognize that nature and all our natural communities have the right to exist, maintain and regenerate their vital cycles. And we – the people – have the legal authority and responsibility to enforce these rights on behalf of ecosystems. The ecosystem itself can be named as a rights-bearing subject with standing in a court of law

This movement began with Indigenous communities in Ecuador.  These rights were codified in the Ecuadorian constitution in 2008.   Soon after, in Bolivia, the World’s People’s Conference on Climate Change and the Rights of Mother Earth drafted the Universal Declaration on the Rights of Mother Earth. Since then, a number of other communities (Indigenous and non-Indigenous) have used this principle to protect their lands.

New Zealand

Ko au te awa, Ko te awa ko au ~ I am the river and the river is me” expresses the special, spiritual relationship the iwi peoples (Maori) hold with the Whanganui River (New Zealand). In a landmark agreement between the Crown government of New Zealand and the Whanganui River iwi, the Whanganui River was granted legal personhood status.  The agreement recognizes the river and all its tributaries as a single entity, Te Awa Tupua, and makes it a legal entity with rights and interests, and the owner of its own river bed. Two guardians, one from the Crown and one from a Whanganui River iwi, are given the role of protecting the river (Global Alliance, September 2012).

India

An Indian court has recognized Himalayan glaciers, lakes and forests as "legal persons" in an effort to curb environmental destruction, weeks after it granted similar status to the country's two most sacred rivers (PRI, April 2017).

Pennsylvania

Grant Township in Pennsylvania, USA, has passed a law legalizing direct action to prevent the fracking wastewater injection wells within the township. The law permits non-violent direct action to enforce the provisions of the Grant Township Community Bill of Rights Ordinance which established rights to clean air and water, the right to local community self-government and the rights of Nature. The proposed well would be a violation of those rights.

 

There are many other communities across the globe that are adopting or looking at adopting this legal framework.  The recognition of the Rights of Mother Earth (Nature) is essential to create a sustainable future. Anishinaabeg leaders should explore these standards and strive to include them in their internal policies.  Anishinaabeg and other Native Nations need to continue to work together to push these standards, both locally and globally.

 

The Rights of Manoomin

The Rights of Manoomin, modeled after the Rights of Nature, codify the right of manoomin to the right to pure water and freshwater habitat; the right to a healthy climate system and a natural environment free from human-caused global warming impacts and emissions; the right to be free from patenting; as well as rights to be free from infection, infestation, or drift by any means from genetically engineered organisms, trans-genetic risk seed, or other seeds that have been developed using methods other than traditional plant breeding.

This important ordinance would secure manoomin stronger protection from development projects.  “Manoomin is sacred to the Anishinaabeg, and it is time the law reflects this,” explains Winona LaDuke, executive director, Honor the Earth. The Rights of Nature framework has been applied to watersheds, rivers, and mountains across the globe.  This includes the city of Pittsburgh, which passed a Rights of Nature framework to block fracking in the city boundaries. “It is our hope that the White Earth Tribal Council makes the enlightened decision to adopt this ordinance and protect our manoomin for future generations,” LaDuke adds.   

The Community Environmental Legal Defense Fund (CELDF), with its International Center for the Rights of Nature, is assisting Honor the Earth in the development of the draft law.  “This is a very important step forward in the Rights of Nature movement. This would be the first law to recognize legal rights of plant species,” explains Mari Margil, CELDF’s associate director.

Full text of the ordinance is attached. (Click Here)


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