{"id":10911,"date":"2021-12-05T23:19:12","date_gmt":"2021-12-05T23:19:12","guid":{"rendered":"https:\/\/nome.unak.is\/wordpress\/?p=10911"},"modified":"2022-01-16T23:44:41","modified_gmt":"2022-01-16T23:44:41","slug":"participation-sharing-and-cooperation-the-rights-of-indigenous-peoples-over-natural-resources-in-the-arctic","status":"publish","type":"post","link":"https:\/\/nome.unak.is\/wordpress\/volume-16-no-4b-2022\/participation-sharing-and-cooperation-the-rights-of-indigenous-peoples-over-natural-resources-in-the-arctic\/","title":{"rendered":"Participation, Sharing, and Cooperation: The rights of indigenous peoples over natural resources in the Arctic"},"content":{"rendered":"\n\n\n\t
\n\n\t\t<\/i><\/span> <\/a>\n\n\t<\/div>\n\n\n\n\n\n

Introduction<\/strong><\/p>\n

The indigenous population accounts for 5% of the global one. Despite its ephemeral population, indigenous communities manage 25% of the land and help preserve 80% of biodiversity and 40% of protected reserves. In Central America, this figure reaches up to 90%[1]<\/a>.<\/p>\n

The management of natural resources, living and non-living, contributes to the conservation of ecosystems and the maintenance of local customs and traditions. Inadequate application of environmental policies causes the loss of cultural diversity and Traditional Knowledge (TK). Right of access to information, participation, and justice are the three pillars of Environmental Justice[2]<\/a>.<\/strong> Environmental Justice refers to an equal sharing of environmental responsibilities, benefits, and burdens, which translates into unsafe food, poorer health outcomes, poor resource management, and environmental damage[3]<\/a>.<\/p>\n

The UNECE Convention[4]<\/a> gives people the right to get informed about what happens on their territory, and indeed, it finally raises the indigenous peoples as subjects of law[5]<\/a>. For this reason, environmental justice plays a functional role in social justice, as it not only supports the equitable distribution of benefits and burdens but also provides the groundwork for the guaranteed protection of interests in the legal system.<\/p>\n

The non-inclusion of traditional ecological knowledge (TEK) in the mitigation strategies of the effects of climate change has contributed to the complete exclusion of indigenous populations in decision-making processes. Although indigenous peoples are the greatest victims of environmental transformations, many green projects have allowed the violation of rights that have harmed indigenous territoriality. Many international agencies have finally recognized some powers of resolution of disputes in the ecological field alongside indigenous peoples[6]<\/a>.<\/p>\n

1. Historical Excursus: From nationalization of Indigenous Land to Indigenous People as subject to International Law<\/strong><\/p>\n

This research additionally aims to demonstrate how the development of the deliberative processes of indigenous communities promotes the sustainable development of communities that share a colonial experience. To this purpose, the discussion begins with a historical excursus on how indigenous lands have been gradually nationalized, and how colonization and decolonization have negatively affected the full self-determination of indigenous peoples.<\/p>\n

The inclusion of indigenous lands within national borders has centralized the management of natural resources, undermining the effectiveness of the self-determination principle.<\/p>\n

The emergence of this principle took place through international law treaties. Despite dynamic jurisprudential and doctrinal evolution, its application remains ambiguous especially based on the subject of reference. Some academics prefer to speak of the “subjectivity” of indigenous peoples rather than the “subject” under international law. This term would, in fact, underline the collective dimension of indigenous rights as had already been addressed in the choice between “people” and “peoples” during the drafting of the United Nations Declaration on the Rights of Indigenous People[7]<\/a>. The International Court of Justice has recognized the erga omnes<\/em> obligations of this principle, which are recognized as legally binding by all states.<\/p>\n

The international community has thus identified the principle of self-determination as ius cojens<\/em>, that is, a core of mandatory rules to protect fundamental values. Independence movements have made this principle take the form of a real “right to self-determination”, despite the already mentioned application problems. These applicative uncertainties unfold both from the subjective point of view and at the level of practice.<\/p>\n

Regarding the first point, neither doctrine nor practice has managed to identify the target groups of the law, while it is still debated whether this right can also be recognized outside the colonial factor and can lead to the creation of new states.<\/p>\n

In this regard, the United Nations General Assembly (UNGA) adopted two important resolutions: Resolution 1541 (XV) and Resolution 2625 (XXV). Resolution XV crystallized a generalized opinio juris<\/em>, followed by a subsequent practice that immediately recognizes the right to self-determination and leaves the people to decide on future relations with the administering state (association or integration).\u00a0Resolution 2625 (XXV) concerns the principles of international law in friendly relations between states. In this resolution, the right to self-determination also extends to those scenarios of political and economic subjection from another dominant state.<\/p>\n

This concept was also incorporated in Chapter II of the Helsinki Conference and in the Consultative Declaration of the Conference on Human Rights[8]<\/a>.\u00a0In 1962, the UNGA adopted Resolution 1803 which introduced the concept of the permanent sovereignty of peoples over natural resources[9]<\/a>.\u00a0The Resolution declared that people could enjoy their wealth without being influenced by the states\u2019 obligations due to international cooperation.<\/p>\n

Considering the non-binding legal nature of the Resolution, the concept was transferred to the first article of the two International Covenants on Human Rights, adopted by the UNGA on 16 December 1966 but entered into force in 1976. The Covenants reaffirm the right of peoples to self-determination and to autonomously manage their natural resources[10]<\/a>.\u00a0Applying a cosmopolitan perspective, nature, understood as environmental healthiness becomes a constitutive element of human rights. Environmental protection is linked to numerous human rights, including the right to life, the right to health, the right to water, the right to food, the right to family life, the right to information, the right to housing, and the right to an adequate standard of living[11]<\/a>.\u00a0Since the 1960s and 1970s, environmental movements have begun to include human rights within environmental law.<\/p>\n

The first official international instrument was the United Nations Conference on the Human Environment in Stockholm in 1972, which adopted a human rights approach to environmental protection. The right to information and expression began to enter the paradigm of environmental justice with the Universal Declaration of Human Rights (art.19), the Aarhus Convention, the International Pact on Civil and Political Rights (art.19) the European Convention for the Protection of Human Rights and Fundamental Freedoms (art.10 on freedom of expression, art.2 on the right to life and art.8 on the right to respect for one’s private and family life)). Finally, the African Charter also recognizes the right of the parties involved to have access to environmental information.<\/p>\n

At the European level, the Treaty on the Functioning of the European Union (Article 15) establishes the citizen’s right to access the documents of the EU institutions. Directive 90\/313 of 1990 strengthens the methods of accessing public environmental information. Art. 7 of Directive 2003\/4 outlines the obligation of the member state to provide information on the general state of the environment. Furthermore, Directive 2008\/1 grants access to information on installations and programs to mitigate the negative effects of pollution.<\/p>\n

2. Environmental Justice as a boost for Indigenous Rights protection <\/strong><\/p>\n

In the evolution of the Environmental Justice principle, it became clear that social groups did not have the same procedural means and the same rights regarding access to natural resources. Indigenous voices, for example, still struggle to play a determining role in political decisions and often do not have the right of veto during the licensing process of activities that concern the exploitation of the natural resources of their territories.<\/p>\n

This situation is more complicated if a government fails to ratify important conventions, invalidating most of the effectiveness of other international instruments on the protection of indigenous land rights. The jeopardized implementation of international legal norms among the Nordic countries causes partial and inequitable protection of indigenous rights in the Arctic, even among similar ethnic groups (Sami community).<\/p>\n

The multitude of parties involved, and the multidisciplinary nature of the matter has promoted the adoption of different approaches to define the concept of environmental justice. Holifield, Chakrabotyr and Walker envisaged four different approaches[12]<\/a>:<\/p>\n\n\n\n\n\n\n
Distributive environmental justice:<\/strong> This approach concerns the allocation scheme of natural resources between the parties.<\/td>\n<\/tr>\n
Procedural environmental justice:<\/strong> Concerns the degree of fairness in the decision-making processes. An interesting analysis by Cesur and Altunel, analyzed the concept through the principle of public interest (benefit principle). There are cases in which the court has assessed the right to access information regarding the problem of pollution as a human right (Oneryildiz v. Turkey) (Mladenov; Avramovic).<\/td>\n<\/tr>\n
Environmental justice of recognition:<\/strong> As an inclusion of the cultures and values \u200b\u200bof the stakeholders.<\/td>\n<\/tr>\n
Capability Environmental Justice:<\/strong> Analysis of the actual tools and opportunities that the parties involved enjoy accessing justice systems.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

In particular, the Capability Environmental Justice approach is well suited to the needs of indigenous peoples. Above all, this definition analyzes the concrete means of these communities to defend their territory and the rights related to it, namely participation, information and ownership rights.<\/p>\n

Considering the various dimensions of environmental justice, it is unsurprising that this concept can be a promoter of indigenous rights by outlining the standards of social justice, and hence non-discrimination, in the face of natural law.<\/p>\n

Defining indigenous environmental rights, it is necessary to build a legal framework that includes the major international sources, which are divided into soft law instruments (such as the United Nations Declaration on the Rights of Indigenous Peoples) and legally binding sources (such as ILO n. 169). Among the most cited, environmental conventions such as the Convention on Biological Diversity stand out, but also the conventions on fundamental freedoms such as The African Charter on Human and Peoples’ Rights, certainly play an essential role in the balance and inclusion of human rights and environmental health.<\/p>\n

The analysis of these sources provides us with a primitive framework for reading on the definition of indigenous rights, in which consent is the basis of cooperation between the government and the indigenous community, and represents the principle of self-determination, definitively overcoming the colonial approach between the state and cultural minorities.<\/p>\n

3. Consultation and Participation interplay<\/strong><\/p>\n

Defining consent is, therefore, important to allow adequate discernment between true participation and tokenistic mere consultation. Consensus is important in decision-making processes because indigenous peoples must be able to consciously accept the risks due to mega-projects, such as mines and forestry developments, which concern the exploitation of natural resources for reasons of public utility.\u00a0By consenting, interested parties can agree on benefits and opportunities but also compensations, possible relocations, and land transfers in case of damage[13]<\/a>.<\/p>\n

Consent is only possible with the fair participation of the interested parties. According to Pretty’s analysis, deliberative democracy has different forms. It goes from passive and merely informative participation to more interactive or self-mobilization through political representative bodies or UN institutions[14]<\/a>.\u00a0ILO Convention No. 169 also defines the elements of consent, specifying the importance that consent must be free, prior, and informed, but above all, it must be obtained through appropriate means.<\/p>\n

Active participation can be done in various ways. Can be conducted: polls, hearings, publications, rules negotiation, and citizens’ committees[15]<\/a>. In citizens’ committees, people who do not hold leadership positions are also given the opportunity to participate and ask for further information.<\/p>\n

4. Legal aspects and best practices<\/strong><\/p>\n

Establishing a single legal system in the Arctic is a difficult undertaking and the mere thought that there could be an approved legal practice for natural resources borders on pure utopia. Natural resources represent a decisive vector for the self-determination of the indigenous peoples of the Arctic, as they represent a good engine for sustainable development.\u00a0Sustainable development poses various challenges to states which are called to adapt to the evolution of international law, especially in the field of indigenous participatory rights.<\/p>\n

The 2007 UNDRIP offered a new vision of indigenous participatory rights. If previously they were subject to the domestic legal fabric, UNDRIP has embarked on a difficult path for its legal recognition. With the emergence of new international instruments, UNDRIP has been qualified as international customary law and as a general principle of international law[16]<\/a>.<\/p>\n

The inhomogeneity in the matter is given by a multitude of variables concerning the recognition of the different needs of the region, different legal systems, different relationships of interconnection and communication with indigenous peoples. The latter point must be analyzed under the lens of the economic and social advantages that are distinguished between the different Arctic communities. Many communities welcome the economic development resulting from energy exploitation, while others hardly support the impact that mining activities have on traditional activities.\u00a0These variables determine the diversity of the most appropriate forms for consultation processes and influence the choice of best practices for promoting sustainability.<\/p>\n

Below, the national legal instruments for each Arctic state are reported together with the consultative forms provided for by domestic legislation.<\/p>\n

\"\"<\/a><\/p>\n

Table 1: Arctic states’ strategies on Consultative rights\u00a0<\/em><\/strong>(click on the table to enlarge it)<\/p>\n

As Table 1<\/strong> shows, each Arctic state has adopted a different strategy with respect to its own legal order.<\/p>\n

Alaska, part of the United States of America, provides for both the Alaska Native Claims Settlement Act, signed by President Nixon, and specific environmental statutes closer to local needs.<\/p>\n

The Alaska National Interest Lands Conservation Act (ANILCA) was signed into law in 1980(Public Law 96-487, 94 Stat. 2371) and designates wilderness areas and activities such as subsistence management, transportation in and through parks, the use of cabins, mines, archaeological sites, scientific research studies. It still does not provide for legally binding consultation obligations[17]<\/a>.\u00a0The Outer Continental Shelf Lands Act (OCSLA) created on August 7, 1953, defines the OCS as all submerged lands that lie off state coastal waters (3 miles offshore) that are under the jurisdiction of the United States. Under the OCSLA, the Secretary grants leases and provides guidelines for the implementation of an OCS oil and gas exploration and development program[18]<\/a>. Over the years, the Government of Alaska has promoted the development of districts with administrative powers capable of supporting regionalized consultation policies. These solutions are periodically evaluated by the EPA (Environmental Protection Agency), which assesses the degree of need for public hearings.<\/p>\n

On the contrary, Canada alongside modern land claims agreements provides also constitutional provisions (Sec. 35\/1982).\u00a0The Canadian Arctic is divided into three territories: Nunavut, Northwest Territories (NWT) and Yukon. Each territory boasts one or more agreements with the government. In 1990, the Umbrella Final Agreement was signed, a non-legal document that groups together the various previous agreements and created a system for monitoring and receiving disputes that include land claims, compensation in money, and self-government[19]<\/a>.<\/p>\n

Further east, Greenland gained full jurisdiction after the constitutional revision of 2009, which made self-government on the island possible. The first division of competencies between Denmark and Greenland had already been hypothesized in 1979, in which the Home Rule Act raised the right to natural resources for residents to a fundamental right (Section 8).<\/p>\n

In practice, supremacy over the management of natural resources is severely limited by the residual competencies that the Danish government still holds. Indeed, Denmark retains the reins on foreign policy and the power to extend or limit the effects of international treaties to the two detached regions, unless these directly affect Greenlandic interests. The main source of Greenlandic legislation is the Mineral Resource Act of 2009 which designates the licensing structure and civil liability of mining companies[20]<\/a>.\u00a0The major diatribes are still directed at the uranium mine in southern Greenland, but the newly elected government seems to support the definitive ban on mining in that particular region of the country.<\/p>\n

A more pragmatic situation exists in mainland Scandinavia, where the Sami population still feels excluded from major decision-making centers. Norway, Sweden, and Finland present a partially similar legal framework, but they offer a different picture in the area of Sami rights.<\/p>\n

The region of Lapland, where the Sami population resides, stretches from the Kola Peninsula to Norway, crossing the northern coast of the three Nordic states. While in Russia the Sami Parliament is not legally recognized, in Norway the rights of the Sami are well established. In 2005, Norway adopted the Finmark Act which established the following:<\/p>\n