Indigenous Environmental Network

The promotion of REDD+ in Chiapas, which the government is doing without consulting us, is causing conflict between our peoples…By failing to consult us, our human rights are violated as well as international agreements such as the United Nations Declaration on the Rights of Indigenous Peoples.-Francisco Hernandez Maldonado of the Tseltal People1

By virtue of being indigenous and peoples, Indigenous Peoples have specific collective and individual rights that non-indigenous communities do not enjoy. Indigenous Peoples’ rights include the rights recognized and enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIPs)2 and Convention 169 of the ILO.3 The growing jurisprudence on Indigenous Peoples’ rights of United Nations Treaty Bodies4 is also important as well as that of regional human rights bodies such as the Organization of American States’ Inter-American Commission on Human Rights and Inter- American Court of Human Rights, the African Commission on Human and Peoples’ Rights, and various European Union human rights mechanisms. An increasing number of States have also incorporated the UN Declaration into their constitutions and systems of law.

Nonetheless, many States continue to patently disregard Indigenous Peoples’ rights. In addition, all too often journalists, project proponents, companies, governments, NGOs, consultants and even some United Nations documents and World Bank projects still do not identify Indigenous Peoples as such, but merely refer to them as “populations,” “communities,” “stakeholders,” “minorities,” “villagers,” “local residents,” “small-scale farmers,” “immigrants,” “workers,” “refugees,” “victims,” “neighbors,” “women,” “children” or “the poor”. “Vulnerable group” is also a much used favorite. Thus Indigenous Peoples are unwittingly or intentionally rendered invisible, their specific rights are not engaged and the existence or extent of rights violations ignored. This shortcoming is particularly evident in the case of emerging areas of violations of Indigenous Peoples’ rights such as carbon trading, the Clean Development Mechanism and the forest carbon offset scheme known as REDD (Reducing Emissions from Deforestation and Forest Degradation).

REDD is mostly being negotiated under the United Nations Framework Convention on Climate Change (UNFCCC). In the UNFCCC negotiations, many States and the United States argue that the United Nations Declaration on the Rights of Indigenous Peoples is only an “aspirational” statement and therefore not legally binding. This argument ignores UN Special Procedures reports and findings as well as international jurisprudence, which indicate that the rights of Indigenous Peoples as recognized in the UN Declaration are legally binding, including the right of Free, Prior and Informed Consent. Unfortunately, these same States and others also ignore legally binding international jurisprudence even when it is applied directly to them.

In addition to refusing to apply UNDRIPs to the climate change negotiations, some States try to avoid their human rights obligations by refusing to even recognize Indigenous Peoples within the State. Others recognize Indigenous Peoples only partially, recognizing some peoples and not recognizing others. One State is in the process of deleting all references to Indigenous Peoples from its constitution and law, and now declares that there are no Indigenous Peoples in that State. But States do not create Indigenous Peoples nor can they erase them. Rights apply and must be recognized, protected and implemented regardless of whether States formally recognize the existence of Indigenous Peoples or not. This is especially true in the case of REDD which many fear may result in the biggest land grab of all time and cause genocide.

In its first statement to the United Nations on REDD, the International Forum of Indigenous Peoples on Climate Change, the indigenous caucus to the United Nations Framework Convention on Climate Change, warned that:

REDD will not benefit Indigenous Peoples, but, in fact, it will result in more violations of Indigenous Peoples’ Rights. It will increase the violation of our Human Rights, our rights to our lands, territories and resources, steal our land, cause forced evictions, prevent access and threaten indigenous agriculture practices, destroy biodiversity and culture diversity and cause social conflicts. Under REDD, States and Carbon Traders will take more control over our forests.

The United Nations Declaration on the Rights of Indigenous Peoples consecrates fundamental rights of Indigenous peoples which are relevant to the REDD discussions especially Articles 10 [Right to Not be Forcibly Removed , Article 26 [Right to and, Territory and Resources , Article 27 [Right to and Tenure Recognition , Article 2 [Right to Redress, Restitution and Compensation , Article 29 [Right to Conservation and Protection of the Environment], Article 30 [Military Activities will not take place in lands or territories] and Article 32 [Right to Development and to determine priorities and strategies for development Right to Free, Prior and Informed Consent before the approval of any project affecting land, territory and resources].

In addition, other Indigenous Peoples’ rights which may be violated by REDD or REDD-type projects include: Article 18 – Right to Participate in Decision Making, Article 20 – Right to Own Means of Subsistence and Development, Article 2 – Right to be Free of Discrimination, Article 12 – Right to Spiritual Traditions and Sacred Sites, Article 24 – Right to Traditional Medicines, Article 25 – Right to Spiritual Relationship with Land, Territory and Resources, Article 4 – Right to Autonomy and Self-Government and, of course, the crosscutting Article 3 – Right to Self-Determination.

Some of the additional rights violated in the case of REDD-type projects in or near the lands and territories of Indigenous Peoples in Voluntary Isolation or highly vulnerable Indigenous Peoples include Article 7 – Right to Life and Liberty, Article 8 – Right to Not be subjected to Forced Assimilation or Cultural Destruction; Right to Not be Deprived of Integrity as People or Land, Territory or Resources; all of the provisions of the UN Draft Guidelines for the Protection of Indigenous Peoples in Voluntary Isolation6 as well as Article 2 (c) on “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;” of the Convention for the Prevention of Genocide.7

Mustering the commitment to fully research and report when Indigenous Peoples are affected by these carbon offset mechanisms is crucial. This quick reference guide is intended to provide a lens to combat the invisibility and cloaking of violations of Indigenous Peoples’ rights caused by REDD-type projects, to ensure that the full spectrum of those violations are identified and that the corresponding instruments, standards and remedies are applied.

List of UNDRIPs Articles Frequently violated by REDD- type Projects affecting Indigenous Peoples

Articles 10 [Right to Not be Forcibly Removed], Article 26 [Right to Land, Territory and Resources], Article 27 [Right to Land Tenure Recognition], Article 28 [Right to Redress, Restitution and Compensation], Article 29 [Right to Conservation and Protection of the Environment], Article 30 [Military Activities will not take place in lands or territories] and Article 32 [Right to Development and to determine priorities and strategies for Development; Right to Free, Prior and Informed Consent before the approval of any project affecting land, territory and resources], Article 18 – Right to Participate in Decision Making, Article 20 – Right to Own Means of Subsistence and Development, Article 2 – Right to be Free of Discrimination, Article 12 – Right to Spiritual Traditions and Sacred Sites, Article 24 – Right to Traditional Medicines, Article 25 – Right to Spiritual Relationship with Land, Territory and Resources, Article 4 – Right to Autonomy and Self-Government and the crosscutting Article 3 – Right to Self-Determination.

Additional Articles violated by REDD-type Projects af- fecting Indigenous Peoples in Voluntary Isolation or Highly Vulnerable Indigenous Peoples

Article 7 – Right to Life and Liberty, Article 8 – Right to Not be subjected to Forced Assimilation or Cultural Destruction; Right to Not be Deprived of Integrity as People or Land, Territory or Resources; all of the provisions of the UN Draft Guidelines for the Protection of Indigenous Peoples in Voluntary Isolation as well as Article 2 (c) on “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;” of the Convention for the Prevention of Genocide.

Guidelines:

http://www2.ohchr.org/english/issues/indigenous/ExpertMechanism/2nd/ docs/A HRC EMRI 2009 6.pdf
Convention for the Prevention of Genocide http://www.hrweb.org/legal/genocide.html

1

Francisco Hernández Maldonado, an indigenous Tzeltal Representative (Comisariado Ejidal) of the Community Amador Hernandez in the Lacandon Jungle of Chiapas, Mexico, submission to the California Air Resources Board http://climate-connections.org/2011/08/23/environmental-indigenous-peoples- and-human-rights-groups-reject-international-offsets-in-californias-global- warming-solutions-act/

2 http://www.un.org/esa/socdev/unp i/en/drip.html Also annexed to this document.

3 http://www.ilo.org/indigenous/Conventions/no169/lang–en/index.htm

4 For example, the International Covenant on Civil and Political Rights http://www2. ohchr.org/english/law/ccpr.htm International Covenant on Economic, Social and Cultural Rights http://www2.ohchr.org/english/law/cescr.htm Clearly, the International Convention on the Elimination of all forms of Racial Discrimination (CERD), http://www2.ohchr.org/english/law/cerd.htm the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) http://www. un.org/womenwatch/daw/cedaw/text/econvention.htm and the Convention on the Rights of the Child http://www2.ohchr.org/english/law/crc.htm are all also relevant.

5 International Forum of Indigenous Peoples on Climate Change, UNFCCC, COP13, December 2007, Bali, Indonesia, SBSTA 27, agenda item 5/REDD, International Alliance of Indigenous and Tribal Peoples on the Tropical Forests http://www.international-alliance.org/documents/IFIPCC%20Statement%20on%20 REDD.doc

6 See http://www2.ohchr.org/english/issues/indigenous/ExpertMechanism/2nd/ docs/A_HRC_EMRIP_2009_6.pdf

7 http://www.hrweb.org/legal/genocide.html