Indigenous Peoples’ Rights and REDD: new briefing from Forest Peoples Programme

Forest Peoples Programme recently published a briefing, titled “Indigenous Peoples’ Rights and REDD: The Case of the Saramaka People v. Suriname”. The briefing asks the question: To what extent should or must REDD account for and respect Indigenous Peoples’ rights?

FPP’s conclusion is clear: “attention to indigenous peoples’ rights is not only desirable as a means to improve the effectiveness and sustainability of climate change mitigation measures, but, also, that these rights must be viewed as part of the applicable legal framework for conceiving and implementing such measures. Failure to do so undermines the rule of law and will expose REDD proponents and investors to a series of serious risks.”

The briefing is available here.

FPP’s briefing looks at a case decided by the Inter-American Court of Human Rights in November 2007, Saramaka People v. Suriname. The Saramaka are the descendents of African slaves who fought a war of liberation from slavery for nearly 100 years. They set up autonomous communities in the rainforest and in 1762 they won their freedom.

In 2000, the Association of Saramaka Authorities and 12 Saramaka captains presented a petition to the Inter-American Commission of Human Rights to protect their land rights. Under the November 2007 Court decision, the Saramaka were granted collective rights to the lands that they have traditionally occupied and used. These rights include rights to decide about “development or investment projects” on their lands, including logging and mining. The Saramaka were also granted compensation from the government for damages caused by logging concessions awarded to Chinese companies.

In its briefing, FPP explains why the Saramaka People case is relevant to REDD, using the example of Guyana to illustrate the point:

[T]he judgment reaffirms the Court’s and IACHR’s prior jurisprudence, which holds that indigenous and tribal peoples’ property rights do not depend on domestic law for their existence, but, rather, are grounded in and arise from customary laws and tenure.¹ This means that the property rights of indigenous peoples exist even if they do not hold titles to the ancestral territories they have historically used and occupied. These property rights include natural resources.² States have corresponding obligations to recognise, secure and protect indigenous and tribal peoples’ property rights, inter alia, through demarcation, delimitation and titling, conducted in accordance with the norms, values and customs of the indigenous peoples concerned, and must adopt or amend their domestic laws to this end where necessary.³ The Court has also held that indigenous peoples have a right to restitution of traditionally owned lands which have been taken or lost without their consent, including where title is presently vested in innocent third parties.⁴

Because indigenous and tribal property rights do not depend on domestic law for their existence, there may be a series of unresolved property rights issues that could pose major challenges for the implementation REDD, AD [avoided deforestation] or other mitigation schemes. This may ultimately require that those schemes be annulled after their establishment, including where title may have been vested in ‘innocent third parties’.⁵ In Guyana, for example, where the President has offered substantial areas of forest as a carbon store in return for payment, indigenous peoples not only own a large area of forest under domestic law (some 16 percent of the country by the government’s own estimate),⁶ they presently are asserting rights to almost three times as much land based on their traditional use and occupancy. Guyana’s laws pertaining to recognition of indigenous territories have been severely criticised by UN human rights bodies.⁷

Given that human rights laws are now incorporated into Guyana’s Constitution, investors in REDD schemes are subject to reputational as well as legal and commercial risks should they invest in a project on unregularised indigenous lands without first obtaining indigenous peoples’ consent.⁸ The IACHR and the Court have made it clear that this risk exists even with indigenous lands where the communities in question have yet to receive title from the State. Similar situations exist not only throughout the Americas but also in most forest regions of the world. States and intergovernmental organisations that pursue REDD, AD or other initiatives that do not account for and respect indigenous peoples’ rights also expose themselves to a number of similar risks. This includes states that are supporting such activities through development aid programmes. Irrespective of such risks, failure to account for and respect indigenous peoples’ rights is contrary to international legal norms and undermines the effectiveness and sustainability of climate mitigation measures.

1. See inter alia Mayagna (Sumo) Awas Tingni Community Case, Inter-American Court of Human Rights, August 31, 2001, Series C No 79 and; Moiwana Community Case, Inter-American Court of Human Rights, June 15, 2005. Series C No. 124.

2. Saramaka People v. Suriname, at para. 121. See also para, 122 (explaining that “the right to use and enjoy their territory would be meaningless in the context of indigenous and tribal communities if said right were not connected to the natural resources that lie on and within the land. That is, the demand for collective land ownership by members of indigenous and tribal peoples derives from the need to ensure the security and permanence of their control and use of the natural resources, which in turn maintains their very way of life”).

3. See inter alia id. at para. 115 (explaining that the Court’s jurisprudence holds that traditionally-owned Saramaka territory “must first be delimited and demarcated, in consultation with [the Saramaka] and other neighboring peoples,” and the Saramaka people’s “title must be recognized and respected, not only in practice, but also in law, in order to ensure its legal certainty”).

4. See Yakye Axa Indigenous Community Case, Inter-American Court of Human Rights, 17 June 2005, Series C No 125; and Sawhoyamaxa Indigenous Community Case, Inter-American Court of Human Rights, 29 March 2006, Series C No. 146.

5. Sawhoyamaxa Indigenous Community Case, id. para 128 (holding that indigenous peoples maintain their property rights in cases where they have been forced to leave or have otherwise lost possession of their traditional lands, including where their lands have been expropriated and transferred to third parties”).

6. Comments of the Government of Guyana on the concluding observations of the Committee on the Elimination of Racial Discrimination. UN Doc. CERD/C/GUY/CO/14/Add.1, 14 May 2008.

7. See Concluding observations of the Committee on the Elimination of Racial Discrimination: Guyana, 04/04/2006. UN Doc. CERD/C/GUY/CO/14; Letters of the Chair of the Committee on the Elimination of Racial Discrimination to the Permanent Mission of Guyana, Follow-Up Procedure, 24 August 2007 and 15 August 2008.

8. Guyana Const., as amended in 2001, Article 154A.