The Role of the Legal Profession in Supporting Indigenous Peoples’ Rights
The International Day of Indigenous Peoples (9 August) serves as a poignant reminder of the existence of approximately 476 million Indigenous Peoples residing in distinct communities across the globe, shedding light on their ways of life and the challenges they face. Despite increasing public awareness of the diverse range of cultures and traditions of these communities, Indigenous Peoples continue to be among the most disadvantaged and threatened groups worldwide. The United Nations (UN) has taken substantial strides to affirm the status and rights of Indigenous Peoples through the Declaration of Rights (2006), which mandates nation states to ensure the respect, protection, and advancement of cultural diversity and languages of Indigenous Peoples. However, despite 17 years since the adoption of these rights by the UN General Assembly, progress remains necessary to fully acknowledge and address the multifaceted barriers faced by Indigenous Peoples as part of the 2030 Agenda for Sustainable Development.
Indigenous Peoples around the world maintain distinctive relationships with the lands they have inhabited for generations, preceding the emergence of problematic legal doctrines such as conquest, occupation, and colonisation, and possess ways of life distinct to the dominant population. While conventional perspectives on land have often centred around commodification and trade, many Indigenous Peoples have inherited and developed unique knowledge and belief systems that have enabled them to practice sustainable living for centuries. The belief systems of these communities are intricately intertwined with their environments, and they share collective ancestral ties to the lands and natural world they call home.
Throughout history, Indigenous ways of life have been threatened by efforts to control and exploit natural resources in the name of colonisation and modernisation. However, as we strive to reverse centuries of environmental degradation and grapple with the impacts of climate change, it is imperative for the global community to recognise Indigenous Peoples as leaders in sustainability and to safeguard their ways of life from the detrimental impacts of climate change and loss of biodiversity. Integrating the perspectives and participation of Indigenous Peoples in the formulation and execution of the Sustainable Development Agenda is therefore paramount.
Indigenous Perspectives on the Environment
The legal community plays a pivotal role in ensuring that Indigenous Peoples are integral to the global fight against climate change and loss of biodiversity, particularly within the framework of the Sustainable Development Goals (SDGs). The law should provide all individuals with a secure means to challenge governments and corporations in the pursuit of human and environmental well-being.
The depletion of biodiversity poses one of the most significant threats to human existence; biodiversity is our strongest defence against climate change and is essential for food, water, medicine, and livelihoods. Despite the rapid decline of global biodiversity due to human activities, Indigenous lands remain among the most biodiverse areas. With 80% of the world’s remaining biodiversity located in territories inhabited by Indigenous Peoples, it is evident that the global community can learn valuable conservation techniques from these communities, which have been practised for generations.
Indigenous environmental stewardship has been instrumental in worldwide conservation efforts, leading to greater inclusion of Indigenous voices in shaping policy decisions. However, this acknowledgement has been hard-won, and legal professionals play an essential role in recognising Indigenous Peoples’ rights to active involvement in modern environmental management. These legal protections can take many forms, often developed as innovative, bespoke legal solutions that challenge existing legal frameworks. Advancing Indigenous Peoples’ rights involves establishing legal frameworks that increase participation in environmental management, thereby embedding Indigenous perspectives in decision-making processes concerning environmental preservation. A prime example is the legal recognition of the Whanganui River in New Zealand, where local Indigenous communities have been empowered to co-govern the river alongside public authorities through legislatively enshrined co-governance arrangements.
Participatory rights can also be advanced by facilitating meaningful engagement with Indigenous Peoples in planning processes. Such participatory rights align with Articles 18, 19, 26 and 27 of the UN Declaration of Rights of the Indigenous People. This includes addressing the safety concerns of environmental defenders, as evidenced by the sobering fact that 35% of the documented 1700 environmental defenders killed globally between 2012 and 2021 were Indigenous People. Legal professionals have a role to play in creating secure spaces for environmental defenders and in formulating and implementing formal legal safeguards such as the Escazu Agreement, designed to safeguard these participatory rights across Latin America and the Caribbean.
Additionally, legal safeguards for Indigenous Peoples can be reinforced through constitutional recognition of their environmental rights. This form of constitutional recognition not only protects environmental defenders but also paves the way for meaningful and inclusive participation of Indigenous Peoples in matters of conservation and environmental concern. Reflecting a growing trend in which environmental rights are enshrined within constitutional law, the Khoe-San people of Southern Africa have advocated for such legislative provisions. In 2008 Ecuador enshrined legal rights of nature (Pachamama) in its national constitution, and Bolivia has incorporated the legal rights of nature and eco-centric Buen Vivir philosophy into its constitution signalling a commitment to environmentally responsible governance.
Cases related to human rights and Indigenous rights have also gained strength in directing more effective action on climate change. The UN Human Rights Committee found that the Australian government violated the rights of Torres Strait Islanders by failing to protect them from the impacts of climate change. Legal action against the Canadian government by the Wet’suwet’en’ tribe, led to the Canadian government announcing plans to reduce emissions by up to 45% by 2030, and renewing commitments to working with Indigenous communities to address climate change.
Land Rights for Indigenous Peoples
Despite the growing movement of environmental legal challenges, Indigenous Peoples often find that their cases are dismissed in court due to a lack of formal land ownership. The relationship between Indigenous Peoples and their lands is symbiotic where the land embodies the identities, cultures, and livelihoods of Indigenous Peoples, shaping their interactions with and care for the environment. The ontologies of numerous Indigenous communities are deeply rooted in the land they inhabit, often viewing natural resources as ancestral entities that provide life. Disrupting this relationship can have catastrophic consequences for both the land and its people.
Historically, state powers and commercial endeavours have resulted in the dispossession of Indigenous communities without proper consultation or fair compensation. Until recently, governments often disregarded the collective ownership practices of Indigenous cultures, viewing natural resources as commodities subject to ownership. In the wake of the Australian High Court overturning the erroneous notion of terra nullius (land belonging to no one) during colonial times, the Australian Parliament introduced the Native Title Act in 1993. This legislation recognises the claims of Aboriginal and Torres Strait Islander peoples to land and water according to their traditional laws and customs.
Land title laws acknowledge the intricate legal systems that Indigenous Peoples upheld before the era of colonialism or conquest. These laws safeguard their rights to camp, hunt, use water, convene meetings, and perform ceremonies on their ancestral lands. Lands under such protection cannot be freely bought, sold, or transferred. However, the nuances of these laws vary by region and community. Progressive legislation does not always translate into tangible change; in Cambodia and the Philippines, for instance, the State acknowledges the collective rights of Indigenous Peoples to the land and territories they historically occupied. Nonetheless, the legal procedures for claiming such rights are often deemed protracted and unwieldy, with actual implementation lagging. This underscores the vital role lawyers play in advocating for Indigenous communities’ claims to land and resources.
While Aboriginal Australians and Torres Strait Islanders legally own 20% of Australian land under Native Title Law, Indigenous groups in other countries continue to struggle for legal recognition. Without such recognition, many Indigenous Peoples confront forced displacement as governments allocate their lands for corporate development. When relocated, Indigenous Peoples often struggle to adjust to their new environments, reporting infertile land, and insubstantial government-aid. A resettlement town for Indigenous People in Peru, for instance witnessed struggles with ‘meaningful work and a loss of traditions’, leading to high rates of alcoholism and suicide. Anthropologists in Canada and Brazil have observed high trends in suicide rates in Indigenous communities that have lost their ancestral lands.
Furthermore, studies show that in Asia, home to two-thirds of the world’s documented Indigenous population, the majority of Indigenous Peoples’ livelihoods are directly linked to their access to land and natural resources. Countries like Malaysia and Indonesia have recognised customary rights to land and natural resources through court decisions, safeguarding the ways of life of these Indigenous communities. Moreover, granting land and resources rights has been shown to contribute to the socioeconomic advancement of Indigenous communities, encouraging entrepreneurship and business development by Indigenous Peoples for Indigenous Peoples.
Advocating for Indigenous land ownership is essential for dismantling systems that perpetuate displacement and suffering, including death, among Indigenous Peoples due to commercial interests.
Policy Recommendations
Indigenous Peoples continue to endure the injustices perpetrated upon them in the name of development and conquest. Lawyers play a paramount role in achieving justice for Indigenous Peoples through advocacy and legal representation. There are several ways lawyers can contribute to safeguarding and advancing the rights of this vulnerable group, and by doing so securing a sustainable future for all:
- Champion collective land rights for Indigenous Peoples, whether through Land Title Laws or pre-existing land ownership laws within a legal framework.
- Assist in challenging developments that encroach upon Indigenous ways of life and well-being by representing these cases pro bono.
- Ensure the participation of Indigenous voices in decisions related to environmental management and climate change, giving prominence to Indigenous perspectives on biodiversity agendas.
- Uphold Indigenous Peoples’ right to avoid forced displacement or relocation without free, prior, and informed consent. This includes advocating for fair compensation and ensuring that Indigenous Peoples are fully aware of the legal and social ramifications of their decisions.
While the 2030 SDG Agenda pledges ‘to leave no one behind’, it currently lacks explicit mention of collective rights for Indigenous Peoples concerning land, territories, or resources. To effectively address the concerns of Indigenous Peoples, the 2030 Agenda should incorporate indicators that explicitly encompass ‘secure and collective land rights’.
So, to conclude, by drawing inspiration from Indigenous ownership practices, these policy recommendations provide today’s legal professionals with a roadmap for effectively advocating for the environment. Lawyers must harness innovative legal approaches to support and amplify Indigenous advocates, ensuring that no one is excluded from the pursuit of the 203O SDG Agenda.
