“It is the way we live that conserves”: Legal models for rights-based conservation*

Issororo River, Guyana

Issororo River, Guyana

By
Tom Griffiths

“It is the way we live that conserves”: Legal models for rights-based conservation*

For many, the idea of a national park is still one of a wilderness free of human presence in the Yellowstone model: an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain in the words of the 1964 US Wilderness Act[i]. The Shoshone, Niimíipu, Absaroka and others who used and lived in and around Yellowstone for thousands of years would probably not have thought of themselves as mere visitors and would have seen a landscape rich with cultural meaning and human presence.[ii] Public perceptions have arguably not shifted much in 150 years from that ‘fortress conservation’ model first conceived in the 1870s and subsequently exported across the globe with colonialism invariably providing the means of replication. This is evident from the prevalence of fortress conservation across all the world’s continents.

International law relating to people and conservation has been one of the heralds of a paradigm shift towards a rights-based conservation model. International human rights law[iii], backed by international environmental law[iv], provides that indigenous peoples and similarly land-connected communities have a right to collectively own and effectively control the lands and natural resources that they have traditionally occupied, possessed, used or acquired, including a right to restitution of lands from which they have been evicted or excluded in order to create protected areas for environmental conservation.

In the recent judgment of the African Court of Human and Peoples’ Rights in the case of the Ogiek of the Mau forest complex in Kenya, the Court re-stated that any ‘interference with the rights and freedoms guaranteed in the Charter shall be necessary and proportional to the legitimate interest sought to be attained by such interference’[v]. It went on to find that the Kenyan state had not substantiated its claim that the Ogiek population was ‘inimical to the environment’, and found that ‘the purported reason of preserving the natural environment cannot constitute a legitimate justification for the [Kenyan state’s] interference with the Ogieks’ exercise of their cultural rights’.[vi] Far from being inimical, conservation science has demonstrated that environmental outcomes in areas protected by their traditional inhabitants are often better than those for protected areas where all human presence has been excluded.[vii]

Demonstrating that a rights-based approach to conservation is workable, not just the right thing to do, is one step in winning the political argument and making progress in practice, not just in policy and rhetoric. The rest of this article therefore seeks to provide a whistle-stop tour of the legal models of more rights-based conservation tried and tested in Australia, Tanzania, Guyana, Brazil and Canada.[viii]

One model tried in Australia has combined recognition of Aboriginal ownership of land, overlain by a co-management arrangement with the state.[ix] One such example is the Garig Gunak Barlu National Park (GGBNP) in Australia’s Northern Territory, comprising the ancestral lands of the Iwaidja people. The GGBNP is managed by a board with equal numbers of both traditional Aboriginal owners and representatives of the government of the Northern Territory[x], although the Aboriginal owners have the casting vote because the chairperson must be Aboriginal[xi]. A variation of this example is the Uluru-Kata Tjuta and Kakadu National Parks, whose freehold title is held by the Anangu traditional owners in return for a lease back to the Australian government who in principle manage the park in collaboration with the Anangu. Concerns have been raised that unequal power relations and heavy bureaucratic demands have in practice meant that the state dominates co-management arrangements in Australia to the detriment of Aboriginal self-determination. One example is the issue of tourists being allowed to climb Uluru rock despite Aboriginal requests not to do so[xii].

In Africa, Tanzania has become a landmark example of community land ownership and forest management, following years of community empowerment and the ratification of the Land Act and the Village Land Act in 1999. Nearly 70% of Tanzania is now comprised of village land, whose customary land rights are recognised (regardless of official registration[xiii]).[xiv] This has allowed for the protection of multiple different ecosystems, including common land areas of forests and marshlands which can be designated within Village Land Areas. [xv] Tanzanian forests managed by communities have been found by both independent researchers and government experts to grow better and exhibit lower levels of disturbance than non-community managed forest.[xvi] Ownership of village lands helps prevent land incursions by, for example, extractive industries and empowers communities to develop their own sustainable use systems.[xvii] There have however been cases of communities being pressured into surrendering land rights because of investor interest.[xviii]  

In Guyana, FPP’s long-term work with the Wapichan supported the community to comprehensively map their lands and put together a plan for the sustainable use and management of their territory.[xix] The Wapichan are currently engaged in formal talks with the Guyanese government with the aim of securing legal titles covering their collective territory and creating an extensive Community Conserved Forest over old growth rainforest in the Upper Essequibo basin, using the legislative framework provided by the 2006 Amerindian Act.[xx] Since title negotiations for the Wapichan are unresolved, the Konashen Community-Owned Conservation Area (COCA), belonging to the Wai Wai Amerindian people, provides an example of an Amerindian Protected Area already in existence.[xxi] However, important lessons can be drawn from the Konashen COCA’s formation and management. The Wai Wai have expressed complaints about the rules governing the management of the COCA on the grounds that they were created by external conservation NGOs without effective and culturally appropriate processes for free, prior and informed consent (FPIC) over the management regime for the protected area.[xxii]  

The first indigenous territory in Brazil is the Xingu Indigenous Park (“Xingu”) which was designated in 1961[xxiii] as a national park before being renamed as an indigenous park. Fourteen distinct indigenous peoples, including the Kayapo, live in Xingu. Scientific analysis of the degree of deforestation in different areas of the Brazilian Amazon found that Xingu National Park was particularly effective at inhibiting deforestation and that indigenous lands were most effective overall at preventing deforestation.[xxiv] In the 1990s, the indigenous peoples of Xingu created the Xingu Indigenous Land Association (ATIX) to act as their representative in discussions with the government as part of a move towards greater autonomy. Today, the indigenous groups are working together and attempting to bridge differences by creating a consensus-built Territorial Management Plan for their future cultural and economic survival and the protection of their territories’ environment.

Despite the positive aspects of this precedent, an indicator of the serious deficiencies in Brazil’s laws and their application is the Belo Monte Dam which, when complete, will have wide-ranging impacts on Xingu National Park and its peoples. Conflict over the dam has led to a number of activists being killed.[xxv] While the Constitution officially recognises indigenous peoples’ rights to use and possession of their lands, ownership is retained by the state, the only real safeguard against incursion is a weakly implemented[xxvi] right to consultation, which falls well short of the international human rights law requirement for free, prior and informed consent (FPIC). Alarming colonialist attitudes to indigenous peoples remain part of Brazils’ legal framework with the Indigenous Statue from 1973 still in force, which describes indigenous peoples as ‘minors’ who are ‘relatively incapable’ of exercising their rights.

Satellite image of Kayapó lands

Satellite image of Kayapó lands and most of the Xingu Indigenous Park (to the south) showing plumes of smoke rising from burning of primary forest remnants outside of the Indigenous Territories. Dark green areas are indigenous lands and light brown areas are ranch and agricultural land.

 

One challenge many indigenous peoples face is the effective exclusion they experience while their land claim is being fought for; an exclusion that can fatally compromise the survival of their culture whatever the outcome of the land claim. In Canada there are a large number of unresolved land claims by first nations, some of which relate to lands whose national park status was designated without their consent. Despite this fact, some first nations have been able to successfully negotiate agreements that provide for their continued use of, and travel and shelter within, the parks for livelihood and cultural activities, by means of signed interim management agreements with the State.

One such example is the Nahanni National Park Reserve (NNPR) in Canada’s Northwest Territories (established in 1976), which is the traditional territory of the Dehcho First Nation. Another is the Thaidene Nëné National Park Reserve (TNNPR) expected to be established shortly following agreements between the Łutsël K’e Dene First Nation (ŁKDFN), the Northwest Territories Métis Nation (NTMN) and Parks Canada. One key advantage for the ŁKDFN is that they have managed to raise a Can$30 million trust fund to support training and community monitoring and for the development of ecotourism[xxviii], which has arguably significantly improved the bargaining power of the ŁKDFN in its ongoing relationship with Parks Canada and the Federal Government.

Broadly speaking, the models discussed above can be divided into two types: (1) community ownership plus a co-management arrangement, or (2) community ownership and management, regulated by national law. A full analysis of these examples is beyond the scope of this article, but some broad lessons can be drawn. Firstly, a co-management arrangement all too easily results in community ownership at the expense of self-determination. Tilting the balance of power in favour of the community requires significant effort to remove the barriers to effective exercise of community self-determination. None of the examples outlined above have achieved this, with the potential exception of the Thaidene Nëné National Park Reserve case. Regulated ownership sounds better in theory as it leaves both ownership and management to the community, but self-determination can still be rendered illusory by imposed rules and regulations as in the Konashen COCA example from Guyana. That does not mean state regulation should be removed altogether;  the Tanzanian example illustrates how state regulation can include safeguards to address, as in this example, discrimination against women.[xxix]

Whether via a co-management arrangement, or a regulated community management arrangement, the management rules or regulations should:

  1. be the least restrictive necessary;
  2. maximise the scope for communities to set rules of their own that are culturally rooted and accommodate the legal plurality entailed by the presence of customary laws;
  3. be developed with the meaningful participation and FPIC of the communities concerned;
  4. address issues of individual discrimination, e.g. against women

None of these examples is perfect, but they do demonstrate that a path towards more rights-based conservation is a realistic and preferable alternative because it entails mutually sustaining biodiversity and cultural survival.

 

 

Notes

* The quote in the title comes from a statement by a member of the Mt. Elgon Ogiek community, and rather than being individually attributed should properly be interpreted as a manifestation of the cultural consensus held in common by the Mt. Elgon Ogiek indigenous people.

** Tom Lomax is a lawyer and Coordinator of the Forest Peoples’ Programme (FPP) Legal and Human Rights Programme, and Athene Dilke is a lawyer and independent consultant and formally an intern with FPP.

[i]      Per Section 2(c) definition of ‘Wilderness’.

[ii]     The Niimíipu and Absaroka are the autonyms for the Nez Perce and Crow peoples respectively.

[iii]    Xákmok Kásek Indigenous Community v. Paraguay, Inter American Court of Human Rights (IACtHR), Judgment of August 24, 2010. Series C No. 214; Kaliña and Lokono Peoples v. Suriname IACtHR Judgment of November 25, 2015. Series C No. 309; Centre for Minority Rights Development and Minority Rights Group International (on Behalf of the Endorois Welfare Council) v Kenya, Communication 276/2003, ACHPR (2010); African Commission on Human and Peoples’ Rights v. Republic of Kenya, ACtHPR Judgment 26 May 2017, Application No. 006/2012 – hereafter referred to as ACHPR (Ogiek v. Kenya). The issue has also been dealt with by various UN Treaty bodies, including in the Concluding observations of the Committee on the Elimination of Racial Discrimination: Botswana. 23/08/2002. UN Doc. A/57/18, paras.292-314; Ethiopia. 20/06/2007. UN Doc. CERD/C/ETH/CO/15, at para 22; Sri Lanka. 14/09/2001. UN Doc. A/56/18, paras. 321-342; Namibia. 19/08/2008. UN Doc. CERD/C/NAM/CO/1; Botswana. 4/04/2006. UN Doc. CERD/C/BWA/CO/16, at para 12; Congo. 23/03/2009. UN Doc. CERD/C/COG/CO/9, at 13; as well as by the Human Rights Committee, see for example the Concluding observations of the Human Rights Committee: Australia 28/07/2000. UN Doc. CCPR/CO/69/AUS, at paras. 10 and 11. The issue has been dealt with at length recently in the Report of the Special Rapporteur of the Human Rights Council on the rights of indigenous peoples, Victoria Tauli-Corpuz, in relation to Indigenous Peoples and Conservation, 29 July 2016, UN Doc. A/71/229.

[iv]   The world’s cornerstone international treaty on environmental law, the UN Convention on Biological Diversity (CBD), via its articles (notably Article 8(j) and 10(c) and decisions of its regular ‘Conference of the Parties’ (“COP”) recognises the valuable contribution to conservation from indigenous peoples’ and local communities’ ways of life and requiring state parties to protect and integrate the rights and way of life of indigenous peoples and local communities into biological conservation measures. See inter alia Decision VII/28 on Protected Areas, adopted by the COP 7 (2004), at para 22; Decision X/31 ‘Protected Areas’ of COP 10 (2010) at paras 31 and 32(c).

[v]     ACHPR (Ogiek v. Kenya), at para 188

[vi]    Ibid, 189.

[vii]    See for example the following research: Chhatre, A. and Agrawal, A. (2009), Trade-offs and synergies between carbon storage and livelihood benefits from forest commons, PNAS vol. 106 no. 42, pp.17667-17670; Nelson A, Chomitz KM (2011) Effectiveness of Strict vs. Multiple Use Protected Areas in Reducing Tropical Forest Fires: A Global Analysis Using Matching Methods PLoS ONE 6(8): e22722. doi: 10.1371/journal.pone.0022722; and Porter-Bolland et al (2011) Community managed forests and forest protected areas: An assessment of their conservation effectiveness across the tropics, Forest Ecology and Management, Forest Ecol. Manage., doi:10.1016/j.foreco.2011.05.034; Seymour, F., La Vina, T., Hite, K., (2014) Evidence linking community-level tenure and forest condition: An annotated bibliography, Climate and Land Use Alliance (CLUA).

[viii]   It is important to note that this is only a summary of these various models compiled in order to give a sense of the kinds of models that have been tried and lessons that can be taken from those cases. The experience and perceptions of the communities concerned are not captured as would be necessary to fully evaluate their success.

[ix]    Removed in the 1950s, they were able to return to their lands further to the Cobourg Peninsula Land and Sanctuary Act 1981. Jennifer Carter, ‘Thinking Outside the Framework: Equitable Research Partnerships for Environmental Research in Australia, Carter’ (March 2008) 174(1) ‘The Geographical Journal’, 63, 66. Australian Government Department of the Environment and Energy, ‘Cobourg Peninsula and Indigenous Australians’ (Australian Government) <http://www.environment.gov.au/water/wetlands/coburg-peninsula-indigenous-australians> accessed 13 June 2017. 

[x]     Toni Bauman, Chris Haynes and Gabrielle Lauder, ‘Pathways to the co-management of protected areas and native title in Australia’ (May 2013) (32) AIATSIS Research Discussion Paper, 23.

[xi]    Vanessa Dekoninck, ‘Deconstructing the stakeholder: A case study from Garig Gunak Barlu National Park, Australia’, (2007) 3(2) International Journal of Biodiversity Science and Management, 77 < http://www.tandfonline.com/doi/pdf/10.1080/17451590709618164&gt; accessed 17 July 2017, 81.

[xii]    Ibid, 101.

[xiii]   Liz Alden Wily, Rights to Resources in Crisis: Reviewing the Fate of Customary Tenure in Africa. Five Briefs, 2012, 61-62.

[xiv]   Liz Alden Wily, ‘The Fate of Res Communis in Africa: Unfinished Business’ in Kameri Obote P. & Collins Odote (eds.) The Gallant Academic: Essays in Honour of Professor Okoth-Ogendo, (University of Nairobi Press forthcoming 2017), 111.  

[xv]    Ibid, at 113.

[xvi]   Ministry of Natural Resources and Tourism, Participatory Forest Management in Tanzania: Facts and Figures (2012), 3-4.  Community-run Forest Reserves have added 2.3 million hectares of land to Tanzania’s protected area sector (Liz Alden Wily, ‘The Fate of Res Communis in Africa: Unfinished Business’, 2017, p. 113) Tom Blomley, Lessons Learned from Community Forestry in Africa and their Relevance for REDD+, 2013, 6.

[xvii]  Liz Alden Wily, ‘The Fate of Res Communis in Africa: Unfinished Business’, 2017, 114.

[xviii]  Liz Alden Wily, ‘The Fate of Res Communis in Africa: Unfinished Business’, 2017, 114; Liz Alden Wily, Rights to Resources in Crisis: Reviewing the Fate of Customary Tenure in Africa. Five Briefs, 2012, 60.

[xix]   Forest Peoples Programme, ‘Press Release: Wapichan people in Guyana showcase community proposal to save tropical forests on their traditional lands’, 7 February 2012,  http://www.forestpeoples.org/topics/environmental-governance/news/2012/02/press-release-wapichan-people-guyana-showcase-community, accessed 5 May 2017. 

[xx]    Cymraeg isod, ‘Government of Guyana to open land-rights talks with Wapichan thanks to Welsh support’ (Size of Wales, 2016) http://sizeofwales.tumblr.com/post/142629322842/government-of-guyana-to-open-land-rights-talks, accessed 5 May 2017.

[xxi]   ‘Amerindian Tribes of Guyana’ (Guyana Chronicle, 17 September 2010) https://guyanachronicle.com/2010/09/17/amerindian-tribes-of-guyana, accessed 13 July 2017. The Amerindian Act 2006 (Section 58(1)) provides for Amerindian protected areas to be established.

[xxii]  Pers. Comm., Dr. Tom Griffiths, Coordinator of the Responsible Finance Programme at Forest Peoples Programme (NGO); information provided during discussions with individuals from the Wai Wai in Guyana.

[xxiii]  Peoples and communities that reside in the Indigenous Territory of Xingu in conjunction with the following associations: Associação Terra Indígena Xingu (ATIX), Instituto de Pesquisa Etnoambiental do Xingu (IPEAX), Instituto Socioambiental (ISA), Coordenação Regional do Xingu (FUNAI). ‘Plano de Gestão de Território Indígena do Xingu’, 2017 (not yet released), 8.

[xxiv]  Soares-Filho, B. et al, ‘Role of Brazilian Amazon protected areas in climate change mitigation’ (2010) 107(24) ‘Proceedings of the National Academy of Sciences of the United States of America’, 10821, 10822. See Fig 1.

[xxv]  Jon Lee Anderson, ‘Murder in the Amazon’ (The New Yorker, 15 June 2011) http://www.newyorker.com/news/news-desk/murder-in-the-amazon, accessed 13 July 2017.

[xxvi]  Carmen Santana dos Santos, Broken Promises – Bleak Future; Are indigenous peoples and the Amazon paying the price for the world’s appetite for natural resources? (Society for Threatened Peoples) http://assets.gfbv.ch/downloads/endfassung_englisch.pdf, accessed 13 July 2017, 4. ‘Brazil’s Belo Monte Dam: Sacrificing the Amazon and its Peoples for Dirty Energy’ (Amazon Watch), see http://amazonwatch.org/work/belo-monte-dam, accessed 13 July 2017.

[xxviii]          Sheldon Alberts, ‘Protecting the “Land of the Ancestors”’ (Pew Trusts, 21 November 2014).

[xxix]  Where a Village Council managing community land applies customary law, it must be applied in line with the written law of the land and without discrimination to any group, including women. In addition, lands are presumed to be jointly held by spouses (Land Act 1999, (No. 4 of 1999), s.161), and spouses must consent to any transfer of land, allowing for greater protection of women’s land rights (as discussed in Liz Alden Wily, ‘The Fate of Res Communis in Africa: Unfinished Business’, 2017, 113-114.) In addition, women are explicitly granted the same rights to hold land as men in both the Land Act 1999 and the Village Land Act 1999 (as discussed in G. Sundet, ‘The 1999 Land Act and Village Land Act- A technical analysis of the practical implications of the act’ (Working Draft) FAO: 2005).