Environmental Management: Principles and practice

Indigenous peoples and environmental law
IUCN (1997:27) estimates suggest there are over 250 million indigenous peoples
who interact with environmental law with respect to:
1
protection of natural environment together with indigenous people;
2
rights of indigenous people over natural resources;
3
rights over traditional knowledge—e.g. to prevent ethnobotany becoming
‘biopiracy’ (gathering indigenous knowledge which is patented and sold);
4
damages to indigenous people for past environmental wrongs by ‘outsiders’;
5
views of indigenous people which could be fed into environmental law making.
Indigenous people often retain knowledge, skills and beliefs that relate closely to the
natural environment. The protection of the environment is often vital to their physical
and cultural survival, and they have insight which may aid environmental management
and law making.
The rights of indigenous peoples are recognized by the UN Commission on
Economic Development (UNCED) 1992 Convention on Biological Diversity and by
the 1994 Draft UN Declaration of the Rights of Indigenous Peoples. Nevertheless,
indigenous people often still have no written land tenure, making them vulnerable to
abuse or resettlement if there are natural resources to be exploited.
In recent decades several countries have made changes to improve indigenous
peoples’ control of their environment and natural resources (see chapter 8). Whether
this will lead to better environmental management is debated. In Australia, New
Zealand, the USA, Canada and Amazonian Brazil aboriginal people have fought for
their sovereign rights to control and manage, or at least share in, resources (Dale,
1992; Shutkin, 1991). In Australia debate about aboriginal territorial rights has become
heated recently. The Australian High Court has ruled that Australia’s indigenous
people enjoy native title and access rights to land leased by Euro-Australian farmers,
which means two land-users should legally coexist. An Aboriginal claim to coastal
waters and the Great Barrier Reef, if awarded, would have considerable impact on
fishing and coastal resorts (The Times (UK), 30 December 1997:11).
A question increasingly asked is: who should bear the cost of rehabilitation
after resources exploitation? For example, the Pacific island of Nauru, now
independent, provided phosphates for some 90 years. Does it have any claim on past
colonial powers to remedy damage? Nauru claimed through the International Court
of Justice for damage done before its independence in 1967 (Anderson, 1992). Similar

---

CHAPTER THREE
50
retrospective actions have arisen in Australia and in other Pacific islands, over nuclear
weapons test sites, and in Papua New Guinea concerning mining.