Taking stock: a rapid review and critical analysis of UNFCCC COP26 outcomes and potential implications for indigenous peoples’ rights

Indigenous peoples have long called for national and global actions to tackle the root causes of the climate and biodiversity crisis and associated rights abuses. They have additionally demanded that all international climate policies, funding, and initiatives must respect and protect their rights, cultures, and knowledge. They have insisted repeatedly that they be acknowledged and compensated as rights holders and as key actors in designing and implementing local, national, and global climate solutions. Yet, international climate policies and initiatives developed and implemented to date have often marginalised their communities and failed to uphold their rights.

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Did the 26th Conference of the Parties (COP26) to the UN Framework Convention on Climate Change (UNFCCC) change that? This policy paper builds on a paper published in the lead up to COP26 which critically reviewed indigenous peoples’ rights in international climate policies and finance. It seeks to take stock of and analyse some of the formal outcomes from the UNFCCC process, as well as government and private sector initiatives and pledges on the margins of COP26, and preliminarily assess some possible implications for indigenous peoples. It finds that despite unprecedented visibility of indigenous peoples at COP26, as well as a growing attention paid to the importance of indigenous knowledge, effective protections and guarantees for their rights in COP26 outcomes remain limited. While the remaining gaps potentially pose major potential threats to indigenous peoples, there are also opportunities to be explored.

Threats and challenges at a glance

Official UNFCCC outcome documents from COP26, such as the Glasgow Climate Pact and the rulebook for new global regulated carbon markets (article 6 rulebook), do contain general references to indigenous peoples’ rights. However, no explicit protections for their rights to land or resources are included. Neither is the all-important principle of free, prior, and informed consent (FPIC) which, in accordance with international human rights law, is required for any actions that may affect indigenous peoples and their lands and territories. As a result, new and growing carbon and ecosystem markets pose significant potential risks of driving up land expropriation and land and forest enclosures in the name of green climate projects and offsets. Donor country pledges on the side-lines of COP26 contain more progressive commitments, including to recognise indigenous peoples’ rights and strengthen their participation.[1] However, possible avenues through which states are planning to implement these pledges currently fail to include effective human rights protections (e.g., FACT dialogue and proposals for statutory supply chain regulation). Pledges to halt deforestation in supply chains and portfolios and to mainstream nature in all financing made on the side-lines by agribusiness companies, institutional investors, and development finance institutions largely lack commitments to respect indigenous peoples’ rights. In general, respect for and protection of indigenous peoples’ rights in the implementation of climate policies and associated finance continues to rely primarily on the enforcement of national level laws, which in many countries do not provide internationally-agreed protections for indigenous peoples’ rights.[2],[3]

Opportunities at a glance

Within the UNFCCC process, the Local Communities and Indigenous Peoples Platform (LCIPP) and the continued elaboration of rules for the operationalisation of Article 6, represent openings through which indigenous peoples can continue to promote respect for their knowledge, roles and rights in international climate solutions and funding. Explicit language in a $1.7 billion donor pledge to strengthen land tenure and resource rights of indigenous peoples and local communities through support for national land and forest tenure reform processes may also open political space and assist indigenous advocates calling for alignment of national legal frameworks with international human rights law (albeit the funding pledge is particularly geared towards indigenous peoples who live in forests).[4] Commitments in the same pledge to partner with indigenous peoples in “the design and implementation of relevant programmes and finance instruments” are positive and represent an opportunity for indigenous rights holders and advocates to influence a shift towards more direct donor funding for their peoples and communities.

[1] See e.g. https://ukcop26.org/glasgow-leaders-declaration-on-forests-and-land-use/ and https://ukcop26.org/the-global-forest-finance-pledge/

[2] See here for case studies explaining the weaknesses of national laws when it comes to protecting indigenous peoples’ rights in a number of countries: https://www.forestpeoples.org/en/rights-land-natural-resources/briefing-paper/2022/preventing-human-rights-violations-associated

[3] In many countries, indigenous peoples are even experiencing that rights protections in national legal and policy frameworks are weakened in response to the Covid19 pandemic. See https://www.forestpeoples.org/sites/default/files/documents/Rolling%20Back%20Social%20and%20Environmental%20Safeguards%20-%20Global%20Report%20ENGLISH%20FINAL.pdf

[4] A number of the processes/initiatives reviewed in this paper – and the related threats and opportunities that are highlighted – have a specific focus on forests. It should be noted that indigenous peoples who do not live in forests also need funding and political support to defend their rights and protect the ecosystems they live in and depend on.