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10 Rev. Eur. Comp. & Int'l Envtl. L. 1 (2001)

handle is hein.journals/reel10 and id is 1 raw text is: RECIEL 10 (1) 2001. ISSN 0962 8797 Indigenous Peoples, International Law and Sustainability Benjamin J. Richardson INTRODUCTION: INDIGENOUS PEOPLES' ENVIRONMENTAL ASPIRATIONS IN A 'POST- COLONIAL' WORLD Over the past half century a large body of international environmental law and human rights law has mush- roomed which, until recently, said little regarding the position of indigenous peoples.' Emerging discussions about the environmental significance of indigenous peoples can be located within the broader, evolving interest in the human rights dimensions of environ- mental policy.2 One of the manifestations of this inter- est has been a focus on the concept of 'environmental justice', that is, equity in access to and use of environ- mental resources as well as arguments concerning the intrinsic value of nature.3 Environmental justice for indigenous peoples may be interpreted as requiring, at a minimum: the recognition of ownership of land and other resources traditionally utilized; allowing for their effective participation in resource management decision-making; and securing an equitable share of the benefits arising from the use of environmental resources. In respect of international law, the challenge for indigenous peoples has been to modify existing international treaties and instruments dealing with the 1 The question of defining indigenous peoples has dominated many academic and policy-making discussions. Without wishing to rehearse these lengthy debates, it is suggested that indigenous peoples are preferably defined as culturally distinct groups traditionally regarded, and self-defined, as descendants of the original inhabitants of areas which they share a strong spiritual and economic attachment: see further, United Nation's Working Group on Indigenous Peoples, Pre- liminary Report on the Study of the Problem of Discrimination Against Indigenous Populations, (UN Doc. E/CN.4/Sub.2/L.566, 1982). There are estimated to be over 250 million tribal or indigenous peoples worldwide spread over more than 70 countries: J. Burger, The Gaia Atlas of First Peoples: A Future for the Indigenous World (Doubleday, 1990), at 18-19, 180-185. 2See A.E. Boyle and M.R. Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon Press, 1996); D. Shelton, 'Human Rights, Environmental Rights, and the Right to Environment', 28 Stanford Journal of International Law (1991), 103. 3See K. Bosselmann and B.J. Richardson (eds), Environmental Jus- tice and Market Mechanisms (Kluwer, 1999); A. Sachs, Eco-justice: Linking Human Rights and the Environment (Worldwatch Institute, 1995). environment, or to devise new, more appropriate instruments that better secure the environmental objectives of their communities. Recent international standards for the treatment of indigenous peoples have converged on the concept of self-determination.4 The emphasis on indigenous self- determination in relation to the environment raises the problem of how special rights for one segment of society can be reconciled with overarching govern- mental responsibilities to maintain environmental pro- tection standards to ensure that development is sus- tainable. Whether indigenous self-determination and environmental protection are mutually reinforcing depends partly on what is meant by 'self-determination' and the nature of indigenous peoples' lifestyles and environmental practices. According to Cassese, only the entire population of an existing state constitutes a 'people' with a right of self-determination, and distinct populations within a state merely have the rights to 'internal' as against 'external' self-determination with- out any right of secession.5 Many groups, however, con- tinue to be engaged in anti-colonial struggles, such as the Tibetans, Kurds and Tamils, and generally only those entities that resemble the modern European nation-state have been able to successfully participate in the decolonization process.' Anaya rejects that self- determination should be equated with the decoloniz- ation process, asserting that it is a right of all people, capable of being exercised in a variety of contexts, that 4 See K. Bosselmann, 'The Right to Self-determination and Inter- national Environmental Law: An Integrative Approach', 1 New Zealand Journal of Environmental Law (1997), 1; D.B. Suagge and C.T. Ste- arns, 'Indigenous Self-government, Environmental Protection and the Consent of the Governed: A Tribal Environmental Review Process', 5 Colorado Journal of International Environmental Law and Policy (1994), 59; P. Thornberry, 'Self-determination, Minorities, Human Rights: A Review of International Instruments', 38:4 International and Comparative Law Quarterly (1989), 867; R.W. Williams, 'Encounters on the Frontiers of International Human Rights Law: Redefining The Terms of Indigenous Peoples' Survival in the World', Duke Law Jour- nal (1990), 660. 5A. Cassese, Self-determination of Peoples (Cambridge University Press, 1995), at 57-62. 6 D. Otto, 'Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference', 5 Society and Legal Studies (1996), 337, at 343. 0 Blackwell Publishers Ltd. 2001, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA. 1

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