—Armi Beatriz E. Bayot, University of Oxford Faculty of Law
[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]
A recent report by the Food and Agriculture Organization (FAO) of the United Nations shows that the indigenous peoples of Latin America are an important line of defence against the destruction of the Amazon and environmental catastrophe.[1]
Large-scale deforestation has been linked to irreversible loss of biodiversity.[2] It also causes an intensification of the effects of climate change: the Amazon’s ability to absorb CO2 is reduced as the forest cover dwindles, and the forest fires that follow the felling of trees increase the presence of CO2 in the atmosphere.[3] The widespread destruction of nature has also been linked with the increase in animal to human transmission of diseases, as wildlife lose their natural habitats – increasing the likelihood of more pandemics.[4]
With the frightening prospect of losing the Amazon and the rest of the planet’s forest cover on the horizon, the FAO report shows that indigenous peoples are holding the line against aggressive deforestation. While 28% of the Amazon Basin are indigenous territories, they only account for 2.6% of the region’s carbon emissions. Indigenous peoples occupy 237 million hectares of forested land in the Amazon Basin – an area larger than France, Great Britain, Germany, Italy, Norway, and Spain combined. These forests have been much better protected than other forests in the region. While intact forests are declining worldwide, those managed by indigenous peoples have declined at a lower rate – 4.9% compared to 11.2%.[5]
While several factors contribute to the efficacy of indigenous peoples’ management of forests (such as traditional knowledge and the employment by some governments of incentive schemes), the FAO report found that indigenous peoples whose collective rights to their lands had strong legal and structural support were best placed to provide better forest protection. Formal recognition helps prevent encroachment by external groups both through direct government support and through the “legitimising” effect that legal recognition gives, empowering indigenous peoples’ efforts in demarcating their territories and confronting trespassers.[6]
Thus, it appears that in pursuit of the “common good” – humankind’s survival – indigenous peoples’ rights over their lands and territories must be better protected. Among the FAO report’s key recommendations is greater support for indigenous peoples’ collective territorial rights through the legal recognition and protection of customary rights over lands. This involves government investment in mapping, titling, and provision of legal remedies to ensure that third parties respect these rights.[7]
States are already required by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)[8] to provide such legal recognition and protection,[9] but this mandate has not effectively stood against state prerogatives involving the exploration, development, and utilisation of natural resources – extractive activities that are also undertaken, at least ostensibly, in the pursuit of the “common good.”
The “common good” has animated many development projects around the Amazon for many years. For instance, the Itaipu hydroelectric dam, which was built in the 1970s, provides 10.8% of the energy consumed in Brazil and 88.5% of the energy consumed in Paraguay[10] – a “common good” shared by two countries. The construction of the Itaipu dam, however, displaced up to 38 indigenous communities from their ancestral lands on the Paraguay side of the Paraná river,[11] many of whom are fighting to regain access to their ancestral territories.[12]
Similar “common good” objectives animated the construction of the Belo Monte dam, which was just completed in 2019. With its impressive theoretical maximum output of 11,233 megawatts,[13] the Brazilian government claimed that the Belo Monte dam would be crucial “to achieve some of the fundamental objectives pursued by the Brazilian Federal Constitution, such as the promotion of human dignity, national development, eradication of extreme poverty, and the reduction of social and regional inequalities.”[14] The resulting blocking of the Xingu river, however, as well as the deviation of up to 80% of its flow through two canals cutting through the Amazon forest, will significantly affect the indigenous peoples’ customary way of life. The water supply of at least two indigenous communities living in the downstream region known as the Volta Grande (Big Bend) is in jeopardy. Moreover, such a radical diversion of water would profoundly impact the survival of indigenous aquatic and terrestrial flora and fauna – which in turn will affect the hunting and fishing prospects of indigenous peoples.[15]
Indigenous peoples’ collective territorial rights are intrinsically linked not only to their physical survival but also to the survival of their cultures and ethnic identities.[16] The implementation and enforcement of these rights are in the hands of states themselves – particularly the right of indigenous peoples to have their customary land ownership be given legal recognition and protection. States can choose (and have chosen) to neglect or violate these rights, and such neglect and violation have been justified in the past as being for the “common good,” in the name of “the public interest,” or in pursuit of “national development goals.” These justifications are not meaningless – they are often premised on the right of individuals and peoples to development, as well as the prerogative of a state to invoke its permanent sovereignty over natural resources for the benefit of its entire population. Indigenous peoples’ rights already have to compete with international legal norms such as these, and states often relegate their rights to the back burner.[17] These normative tensions are at play whenever indigenous peoples’ rights are linked to their contribution to the general welfare and, in particular, to their role in environmental conservation. If it appears that no “common good” is obtained in the protection of indigenous peoples, are states justified in subordinating their rights (and very existence) to other priorities? For many years, the answer that states have given to this question has all too often been “yes.”
It is high time that indigenous peoples’ vital role in mitigating climate change and conserving biodiversity be recognised and supported. We must do everything we can to stem the tide of a climate crisis – including providing structural support to indigenous peoples’ management of their territories. But we must be careful not to condition our support of indigenous peoples’ rights to whatever collective benefit we gain from their actions. The concept of the “common good” has been employed against indigenous peoples before, and it could very easily be turned against them again. While the threats to the world’s forests pose a danger to all the inhabitants of the planet, these threats imperil the very survival of indigenous peoples right now. We should protect indigenous peoples and their territories not primarily on some notion of a “common good,” but because of our common humanity.
Suggested citation: Armi Beatriz E. Bayot, Indigenous Peoples’ Rights and the “Common Good,” Int’l J. Const. L. Blog, Apr. 14, 2021, at: http://www.iconnectblog.com/2021/04/indigenous-peoples-rights-and-the-common-good/
[1] FAO and FILAC, Forest Governance by Indigenous and Tribal People. An Opportunity for Climate Action in Latin America and the Caribbean (FAO 2021) available at <http://www.fao.org/documents/card/en/c/cb2953en> accessed 12 April 2021
[2] See for instance Worldwide Fund for Nature, ‘Deforestation and Forest Degradation’ (Threats, 2021) available at <https://www.worldwildlife.org/threats/deforestation-and-forest-degradation> accessed 12 April 2021
[3] See for instance Anna Jean Kaiser, ‘AP Explains: Role of the Amazon in global climate change’ (AP Explains, 27 August 2019) available at <https://apnews.com/article/384fdb5ee7654667b53ddb49efce8023> accessed 12 April 2021
[4] Damian Carrington, ‘Inaction leads world playing ‘Russian roulette’ with pandemics, say experts (Wildlife, 9 March 2021) available at <https://www.theguardian.com/environment/2021/mar/09/inaction-leaves-world-playing-russian-roulette-pandemics-experts> accessed on 12 April 2021
[5] FAO and FILAC (n 1)
[6] ibid
[7] ibid
[8] United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), UNGA Resolution 61/295, UN Doc. A/RES/47/1 (2007), adopted on 13 September 2007. The UNDRIP affirms ‘the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources’ and aims to have these rights recognised in binding legal instruments. While UN declarations are generally not binding, it has been argued that the adoption of the UNDRIP by an overwhelming majority of states at the UN General Assembly (as well as its subsequent acceptance by States that voted against its adoption) and its widespread use by national and international courts in cases concerning indigenous peoples’ rights affirm its legal significance and indicate that its contents might be on the way of acquiring the status of customary international law. See Sylvanus Gbendazhi Barnabas, ‘The Legal Status of the United Nations Declaration on the Rights of Indigenous Peoples (2007) in Contemporary International Human Rights Law’ (2017) 6 International Human Rights Law Review 242.
[9] UNDRIPArticle 26
[10] Itaipu Binacional, ‘FAQ’ (Itaipu Binacional, 2021) available at <https://www.itaipu.gov.br/en/press-office/faq> accessed on 12 April 2021
[11] By one account, around 688 families, see William Costa, ‘An indigenous community versus the giant hydro-electric company’ (Democraciaabierta, 5 August 2019) available at <https://www.opendemocracy.net/en/democraciaabierta/desplazamiento-y-hidroeléctricos-en-el-r%C3%ADo-paraná-de-paraguay-en/> accessed on 12 April 2021
[12] Fernando Ferreira and Kurtural, ‘An indigenous community in Paraguay faces one of the biggest hydroelectric dams in the world’ (29 December 2017) available at <https://intercontinentalcry.org/indigenous-community-paraguay-faces-one-biggest-hydroelectric-dams-world/> accessed on 12 April 2021
[13] The Rights and Wrongs of Belo Monte’ The Economist (4 May 2013) available at <http://www.economist.com/news/americas/21577073-having-spent-heavily-make-worlds-third-biggest-hydroelectric-project-greener-brazil> accessed on 12 April 2021
[14] Vinodh Jaichand and Alexandre Andrade Sampaio, ‘Dam and Be Damned: The Adverse Impacts of Belo Monte on Indigenous Peoples in Brazil’ (2013) 35 Human Rights Quarterly 408
[15] ibid.For current water levels and effect on flora and fauna, see Tiffany Higgins, ‘Amazon’s Belo Monte dam cuts Xingu River flow 85%; a crime, Indigenous say’ (Amazon Conservation, 8 March 2021) available at <https://news.mongabay.com/2021/03/amazons-belo-monte-dam-cuts-xingu-river-flow-85-a-crime-indigenous-say/> accessed on 12 April 2021
[16] See for instance UNDRIP Article 8.
[17] For a discussion on how indigenous peoples’ rights compete with other international legal norms See Armi Beatriz E. Bayot, ‘Free, Prior, and Informed Consent in the Philippines: A Fourth World Critique’ in I. Feichtner et al. (eds), Human Rights in the Extractive Industries, Interdisciplinary Studies in Human Rights 3 (Springer 2019)
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