The Yasuni-ITT Initiative: a New Model to Implement Human Rights and Biological Diversity Conventions and Frameworks?

Exploring the Right to Diversity in Conservation Law, Policy, and Practice

The Yasuni-ITT Initiative: A New Model to Implement Human Rights and Biological Diversity Conventions and Frameworks?

Lavinia Warnars1 Abstract

Ecuador has proposed a unique initiative: to refrain from oil extraction in three oil blocks, Ispingo-Tiputini- Timbochacha (ITT), in Yasuni, one of the most biologically diverse areas of the world and home to four Indigenous groups. Lost revenues from forgone oil extraction are to be offset through an international fund to be invested in different sustainable development projects. Although the initial development of the initiative lacks participation of Indigenous peoples, the Initiative may function as a model for developing countries containing biologically diverse areas with fossil fuels to implement provisions under the United Nations Declaration of the Rights for Indigenous Peoples (UNDRIP), the International Labour Organization’s Indigenous and Tribal Peoples Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169), the Convention on Biological Diversity (CBD), and the United Nations Educational, Scientific and Cultural Organization Man and Biosphere Reserve Programme (UNESCO MAB). Accordingly, the Initiative could resolve conflicts between resource extraction activities, nature conservation, and Indigenous peoples’ interests.

Ecuador is a small, developing country in South America that is rich in biological and cultural diversity. Although it has remained dependent on petroleum exports since the 1970s, it has not enjoyed significant economic growth or diversification or reduction in inequalities. The petroleum industry has also had profound negative environmental, social, and health impacts.2 For these reasons, and due to global issues of climate change and biodiversity loss, the government proposes to refrain indefinitely from extracting almost one billion barrels of petroleum from three oil blocks – Ispingo-Tiputini- Timbochacha (ITT) – located in Yasuni National Park (see Figure 1), a proposal referred to as the Yasuni-ITT Initiative. The Yasuni National Park is a biologically diverse hotspot and is home to four Indigenous groups, two of which are living in voluntary isolation. The government is willing to forgo oil extraction in ITT if the international community contributes at least half of the revenues otherwise earned (3.6 billion USD), to be invested in nature conservation, renewable energy, and social development projects.3 On August 3, 2010, a Trust Fund agreement for the The Yasuni-ITT Initiative Initiative was signed between the United Nations Development Programme (UNDP), which is serving as the holder of Trust Fund, and Ecuador4. The country aims to receive aims to address global the first contributions before 2011.5 warming, biodiversity loss, Indigenous peoples’ The Yasuni-ITT Initiative simultaneously aims to address global warming, biodiversity loss, Indigenous peoples’ rights, and sustainable development. According to several national rights, and sustainable and international human rights and biodiversity laws, conventions, and agreements, the development. protection of Yasuni and its inhabitants is the responsibility of the State. However, the government of Ecuador faces challenges to complying with international conventions and national laws due to several factors, including the reliance on the oil industry. The Yasuni-ITT Initiative may be a mechanism for the country to implement such international agreements and conventions more effectively and may provide lessons for application of similar initiatives in other countries. This article reviews the national context, explores the Initiative’s relation to key human rights and biological diversity instruments, and examines the implications of the Initiative for the addressing tensions between Indigenous peoples’ rights, conservation, and resource extraction activities. 1 The author would like to thank the Policy Matters editorial board for their work and critique, as well as those who shared information for this article. 2 Larrea, C., and L. Warnars, 2009. “Ecuador’s Yasuni-ITT Initiative: Avoiding emissions by keeping petroleum underground”. Energy for Sustainable Development, International Energy Initiative. 13(3): 219-223. 3 Larrea and Warnars, 2009. 4 Larrea and Warnars, 2009. 5 See Government of Ecuador. Ministerio Coordinator de Patriomonio. “Yasuni ITT: Ecuador’s proposal for changing its History”. Bulletin No. 106 (Quito), August 3, 2010; and Falconí, F., personal communication via presentation and interview with the author, August 25, 2010.

55 Policy Matters 17, 2010 Theme I: Initiatives of Duty-bearers

A Profile of Ecuador and the Yasuni National Park

Ecuador is ranked 89th on the Human Table 1. Species richness, threatened species, and regional endemics of Yasuní Development Index, with a per capita income National Park (threatened species are those listed as Critically Endangered, 6 Endangered, or Vulnerable in the 2008 IUCN Red List). © Adapted from just above half of the regional average. Ninety Bass et al., 2008 percent of Ecuador’s economy is based on the export of primary products and petroleum is the single most important product. Although oil exports initially (from 1972) stimulated economic growth and social development, since 1982, growth has been insubstantial and the negative environmental, political, economic, and social impacts of the industry have been severe. It was difficult for Ecuador to resist the short-term profits of extracting new petroleum Yasuni conservation value in terms of conserving Amazonian Table 2. fields due to the increased foreign debt (by 2003, species. © Adapted from Bass et al., 2008 16.5 billion USD), despite its awareness of the low quality of the oil, the negative impacts of the industry, and the limits of Ecuador’s total oil reserves (it is estimated that oil production will cease in the next thirty years).7 The further expansion and exploitation of new reserves of heavy crude led to the construction of pipelines and exploration of “pristine” forest (current- day blocks 16 and 31 in the Yasuni National Park; see Figures 1 and 2).8 While the country Table 3. Threatened and near-threatened species totals for Yasuni National possesses sufficient renewable energy resources, Park. © Adapted from Bass et al., 2008 Ecuador has been unable to invest in it due to dependency on natural resource extraction, institutional and governance shortcomings, and lack of financial resources, among other things.9

Ecuador is one of the most biological and culturally diverse countries in the world and home to 27 Indigenous peoples. In 1989, the United Nations Educational, Scientific and Cultural Organization (UNESCO) declared the 928 000-hectare Yasuni, a unique, well-conserved, and highly culturally and biologically diverse park situated in the western Ecuadorian Amazon, a UNESCO Man and Biosphere Reserve.10 Yasuni contains around 67 threatened species and 243 regional endemic species, including “world record” numbers of tree, amphibian, reptile, and bat diversity (see Tables 1, 2, and 3).11 Furthermore, the region holds one fourth of Amazonian freshwater due to the Napo River, as well as water basins that host 562 fish species. The high biodiversity of Yasuni is mainly due to its unique location, stable and humid climate, and proximity to the Equator.12

6 UNDP, 2007. Human Development Report, 2007-2008: Fighting Climate Change: Human solidarity in a divided world. Palgrave Macmillan: Hampshire and New York. 7 Rival, L., forthcoming. “Planning Development Futures in the Ecuadorian Amazon: The Expanding Oil Frontier and the Yasuní-ITT Initiative”, Part 3 in Bebbington, A. (ed.), Extractive Economies, Socio-Environmental Conflicts and Territorial Transformations in the Andean Region. 8 Rival, 2010, page 3. 9 Larrea and Warnars, 2009. 10 Bass, M., M. Finer, C. N. �J��enkins��, H. �K��reft, D. F. Cisneros-Heredia, S. F. McCracken, N. C. A. Pitman, P. H. English, �K��. Swing, and G. �V��illa, 2008 (unpublished manuscript). “Global Conservation Significance of Ecuador’s Yasuni National Park”. Published with revisions in 2010, PLoS ONE 5(1). Last accessed August 30, 2010, at: http://www.plosone.org/article/info:doi/10.1371/journal.pone.0008767. 11 �B��ass et al., 2008, page 1. 12 According to �B��ass et al., 2008, 70% of the rain within the Amazon is caused by evapo-transportation: the roots of plants absorb water out of the air (rain/humidity), which evaporates later into the air through the leaves, causing clouds and rain. In addition, some scientists argue that Yasuni

56 Exploring the Right to Diversity in Conservation Law, Policy, and Practice

Fifty percent of the park belongs to the Waorani, Quechua, Tagaeri, and Taromenane Indigenous peoples.13 Due to the complicated nature of the arrival and continued presence of the oil industry and foreigners in the Amazon, the Tagaeri and Taromenane decided to live in voluntary isolation in Yasuni. Relations have sometimes been tense due to the forced shifting of boundaries of Indigenous territories for oil companies to extract within the park. In January, 2007, through Presidential Decree, several petroleum blocks were banned or minimized in the Amazon Relations between to establish an Intangible Zone of 758 000 hectares for the two isolated groups, effectively granting the communities legal titles to the territory (see Figure 2, orange area).14 In practice, Indigenous peoples and however, the status offers minimal protection from extractive activities, loggers, other illegal oil companies are tense, economic actors, and contact with ‘outsiders’.15 particularly due to issues The biological and cultural diversity of the Yasuni faces many interrelated threats that are around land tenure. mainly caused by the petroleum industry, including habitat fragmentation due to roads (such as the Maxus road in Figure 2), air, water, and soil pollution, deforestation, illegal logging, biodiversity loss, and agriculture. Indigenous peoples are affected by the compensations and employers of the oil industry (for example, through inappropriate housing, alcohol, drugs, and violence), tourism, and the increase of diseases related to pollution.16 The Amazon also faces desertification and drought due to climate change and deforestation. However, with the comparatively moderate projected temperature rise in the park due to climate change, the region is “strategically important for the future conservation of species.”17

The Government aims to resolve the threats posed by petroleum extraction through the new constitution adopted in 2008, which prohibits future extractive activities in protected areas, except when the president gives consent with the full backing of the parliament.18 Additionally, the new constitution recognizes the Rights of Nature and aims at promoting social development.19 However, lack of resources, governance shortcomings, contradicting policies, and efficiency constraints complicate the enforcement and implementation of this new constitution.20 The Yasuní-ITT Initiative arguably has the potential to implement the new constitution and resolve the contradictions between, on the one hand, nature conservation, climate change, equity, social development, and Indigenous Ecuador’s president calls peoples’ rights and, on the other hand, oil extraction. on the international The Yasuni-ITT Initiative community to be “co- responsible” for protecting Ecuadorian President Rafael Correa announced to the United Nations in New York in Yasuni’s biological and September, 2007, that Ecuador will refrain from exploiting the ITT crude oil blocks21 in Yasuni if the international community donates at least half of the revenues (3.6 billion cultural diversity. USD) that the State would have otherwise received from extraction.22 The country argues that the international community is “co-responsible” for the protection of Yasuni due to its global biodiversity and cultural value.23 The contributions will be invested in renewable energy projects and energy savings through a capital fund. A certain percentage of those projects will be put into a revenue fund to be invested in sustainable forest management, watershed management, nature conservation and regeneration, social development, and Indigenous peoples’ protection. It is noted that the other oil blocks within Yasuni (blocks 16 and 31) are not included in the Initiative.

functioned as a refuge for species during the Pleistocene era when glaciers drastically cooled the planet, transforming the majority of the Amazon into savannah and/or grassland except for areas such as Yasuni. 13 Larrea,��rea, C., N. Greene, L. Rival, E. Sevilla, and L. Warnars, 2009. Ecuador. Towards a new development model. Yasuni-ITT. An initiative to change history, edited by A. Adoum; translated by R. Huber. Global Business: Quito, Ecuador. 14 Larrea et al., 2009; Rival, 2010, page 9. 15 Rival, 2010, page 11. 16 BassBass et al., 2008. 17 Larrea and Warnars, 2009. 18 Acosta, A., and E. Martínez, 2009. Derechos de la Naturaleza. El futuro es ahora. Ediciones Abaya Yala: Ecuador. 19 Acosta and Martínez, 2009. 20 Larrea and Warnars, 2009; Rival, 2010. 21 According to Larrea et al., 2009, the ITT oil blocks account for 20% of Ecuador’s total oil reserves to be extracted over 13 years, holding 846 million barrels of heavy crude. 22 Correa,�� R., 2007. Speech given at High Level Meeting on Climate Change at the United Nations General Assembly in New York, September 25, 2007. Last accessed August 30, 2010, at: http://www.ecuador.org/bulletin_board/relative_docs/letter_climatechange.pdf. 23 Falconí, pers. comm., August 25, 2010.

57 Policy Matters 17, 2010 Theme I: Initiatives of Duty-bearers

Figure 1. Nature parks in Ecuador. © Sangay Touring Figure 2. Oil blocks, roads, and protected areas in Ecuador. © SosYasuni

Contributions can come from governments, multilateral organizations, civil society organizations, companies, and individuals. Though still under consideration, the other 50% of the fund may be provided by the State through its own contributions, private investments, and anticipated climate change funding mechanisms for developing countries through the future post-Kyoto protocol. Ecuador does not intend to integrate the Yasuni-ITT Initiative into (post-) Kyoto Protocol mechanisms such as the Clean Development Mechanism and Reducing Emissions from Deforestation and Degradation in Developing Countries (REDD).24 Overall, the Initiative aims to achieve the following results25:

• Reduce/avoid CO2 emissions by (in total around 12 million metric tonnes) preventing the burning and release of carbon reserves through non-extraction of underground petroleum, avoided deforestation, reforestation and afforestation26 and by reducing the use of petroleum in energy generation and industrial productions by replacing these with carbon free technologies for industries and households and by energy saving programs; • Protect biodiversity and Indigenous peoples’ territories by guaranteeing the protection and sustainable management of 38% of the Ecuadorian natural territory and the full protection of the territories of the isolated Indigenous peoples (Taromenane and Tagaeri) against projects that would otherwise intrude on their lands. The Waorani and Quechua residing in Yasuni will be supported by projects of sustainable forest management, sustainable tourism, education, and poverty eradication; and • Promote social development by investing in education, eco-tourism, poverty eradication, training, health, technical assistance, and job creation in sustainable activities such as agroforestry and protection of ecosystem services. These will target the poorest and most marginalized sectors and contribute to sustainable employment.

These goals address new sustainable development projects such as renewable energies and coincide with the Millennium Development Goals.27 Contributions made towards the fund will be held by the Multi Donor Trust Fund office of UNDP and administered by a steering committee, which will be chaired by a representative of the Ecuadorian government and will include two other Ecuadorian government representatives, two representatives from contributing governments, and an

24 Larrea�� and Warnars, 2009. 25 Larrea et al., 2009.

26 Forests absorb carbon dioxide (CO2). Forestation projects increase CO2 absorption and lower total CO2 amounts in the atmosphere. 27 Larrea et al., 2009.

58 Exploring the Right to Diversity in Conservation Law, Policy, and Practice

Ecuadorian civil society representative.28 The amount of the fund (3.6 billion USD) is based on the carbon market price of

407 million metric tonnes of avoided carbon dioxide (CO2) emissions related to the 846 million barrels of ITT as of May, 2009.29 This calculation will be updated each year to account for market fluctuations and to reduce the incentives of future governments to refund the money and extract the resource.30

Ecuador will issue Yasuni Certificates of Guarantee for the nominal value of the contributions, which can be up to a total 31 of 407 million tonnes of CO2. In the future, if the Yasuni Certificates of Guarantee are accepted as Emission Permits within the carbon market, the country may sell the certificates to private and/or public entities.32 If future Ecuadorian governments decide to exploit ITT, the Yasuni Certificates of Guarantee would become redeemable; the Trust Fund would return contributions to the donors and suspend capital investment in energy projects and the payment of yields to Ecuador.33 This system may contain a high risk of non-repayment due to different arguments, including that the government may invest the funds accordingly into various Yasuni-ITT projects. However, the government may jeopardize its credibility and harm its sustainable development potential if it decides to extract ITT after all.

The implementation of Yasuni-ITT can serve as a pilot project, the model of which can be replicated by other developing countries containing significant fossil fuel reserves in highly biologically and culturally sensitive areas such asBolivia, Colombia, Peru, and the Philippines.34 Ecuador argues that the Initiative is solely applicable to developing countries intending to develop sustainably, without the dependency of fossil fuel extraction, and to develop in an equal way in comparison with developed countries. The model should also be adjusted to local and national situations, as each country contains unique aspects.

Plan B: Extracting ITT

If the Yasuni-ITT Initiative receives insufficient funding and political support or if the implementation of the different projects is not effective, the government may decide to extract ITT by using off-shore techniques to minimize the negative environmental and social impacts (hereafter referred to as Plan B). However, Plan B can only be implemented with the full support of the parliament in accordance with the 2008 Constitution. Some petroleum companies already utilize off-shore techniques in the Ecuadorian Amazon, yet the success of these techniques is questionable, given current examples such as the ongoing class action law suit of Ecuadorian plaintiffs against Texaco-Chevron due to its polluting activities from 1970- 1992.35 Petroleum companies, mainly Petroecuador (the State company), have already explored extraction options for ITT and promise subsequent economic development to the State and Indigenous peoples.36

The Ecuadorian Government ultimately decides what happens with the Yasuni-ITT Initiative, but much is at stake and there are many challenges, including the fact that it is a pilot project based on a new concept, many different stakeholders are involved, donations are forthcoming, and there are political barriers within the government system.37

Yasuni-ITT and Human Rights

The Yasuni-ITT Initiative not only aims to address climate change and sustainable development, but may also address provisions for Indigenous peoples under international, regional, and domestic human rights instruments. Under the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)38, a set of standards is defined to protect and address the rights and cultures of Indigenous peoples. In its Preamble, UNDRIP recognizes the “urgent need to respect 28 UNDP, 2010. “Ecuador Yasuni-ITT Trust Fund”. Last accessed August 25, 2010, at: http://mdtf.undp.org/yasuni. 29 The amount is similar to the amount of the oil price related to the 846 barrels of ITT. 30 Larrea�� and Warnars, 2009. 31 Larrea and Warnars, 2009. 32 Rival,�� 2010; UNDP, 2010. 33 Larrea�� et al., 2009, page 19. 34 Larrea et al., 2009, page 20. 35 Larrea-Maldonado, C., 2006. Hacia una historica ecológica del Ecuador. Propuestas para el debate. Universidad Andina Simón Bolívar and Corporación Editora Nacional EcoCiencia: Ecuador. 36 El Dario Hoy, April 4, 2010a. “Plan B del ITT va a paso firme”.��Last ��accessed April 6, 2010, at: http://www.hoy.com.ec/noticias-ecuador/plan-b- del-itt-va-a-paso-firme-400868.html; El Comercio, April 4, 2010. “Las sombras se extienden sobre el ITT”. Last accessed August 30, 2010, at: http:// www.maippa.org/%C3%9Altimas-noticias/ecuador-las-sombras-se-extienden-sobre-el-itt.html. 37 For instance, in early �J��anuary, 2010, President Correa condemned the Trust Fund as a form of neo-colonialism threatening national sovereignty and interests, causing the resignation of the Yasuni-ITT commission, including the Minister of Foreign Affairs, Fander Falconí. 38 United Nations Declaration on the Rights of Indigenous Peoples, 2007. UN�� Doc A/RES/61/295 (opened for signature September 13, 2007).

59 Policy Matters 17, 2010 Theme I: Initiatives of Duty-bearers and promote the inherent rights of Indigenous peoples,” including rights to their lands, territories, and resources, and recognizes and reaffirms that Indigenous peoples “possess collective rights which are indispensable for their existence, well-being and integral development as peoples”. The Preamble also recognizes that “respect for Indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment”. Furthermore, UNDRIP emphasizes that Indigenous peoples have the right to provide or deny free (non- influenced), prior and informed consent regarding governmental approval of projects affecting them and their territories. It is noted that possessing legal title to their territories is often a prerequisite for Indigenous peoples to provide free, prior and informed consent.39

In addition to UNDRIP, the 1989 International Labour Organization’s Indigenous and Tribal Peoples Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169)40 contains several key provisions related to Indigenous peoples (see Box 141). Parties (including Ecuador) are legally bound to implement the described provisions, even if a company is extracting resources within the lands of the concerned groups. However, companies should comply with the national legislation that enacts the Convention and should consult and compensate the groups for the activities in forms of, for example, royalty payments, employment development, and provision of services.42 Although participation and consultation are among the key provisions of the Convention, “this does not mean that Indigenous peoples’ communities have a right to veto projects that affect them.”43

While instruments such as UNDRIP and ILO 169 set important standards and mandates, domestic legislation and regional commissions give legal weight to international provisions. For example, the Inter-American Commission granted precautionary measures in favour of the Tagaeri and Taromenane peoples with respect to petroleum extraction and illegal logging in 2006 by calling upon the Ecuadorian Government to prohibit the entry of ‘third persons’ into their territories44. In accordance, Ecuador’s 2008 constitution states, “The territories of peoples in voluntary isolation are ancestral homelands, irreducible and untouchable, and they will be off-limits to all extractive activities. The State will adopt measures to guarantee their lives, respect their self-determination and will to remain in voluntary isolation, and Regional and domestic ensure that their rights are respected. The violation of these rights will constitute the crime of ethnocide, and should be dealt with by the law”.45 Additionally, according to instruments give legal the 2007 Presidential Decree explained above, an Intangible Zone was set aside for these weight to international groups to inhabit. provisions under The stated provisions enshrined in international, regional, and domestic instruments UNDRIP and ILO 169. indicate that Indigenous peoples’ lives and territories must be protected and they must be consulted with regards to activities within their territories. However, as history has shown, Ecuador’s high economic dependency on the petroleum industry, institutional and governance shortcomings (including corruption), and limited financial resources pose challenges to the proper implementation of these provisions.46 Studies have shown that current extractive activities have violated and threatened human rights recognized in UNDRIP and ILO 169 in the Amazon, including in the Yasuni.47 As such, if Plan B occurs, it will likely be executed without respecting internationally and nationally recognized human and Indigenous rights. Certain petroleum companies provide some platform for consultation on ITT by discussing the possibilities of extraction with the Indigenous peoples and offering them so-called royalty payments, including economic benefits, education, supplies (often alcohol and drugs), and sanitation facilities. However, these payments are often perceived as threats to Indigenous cultures and companies have used the payments simply to avoid conflict and to be able to claim that they are recognizing human rights.48 39 Colchester, M., and M. Farhan Ferrari, 2007. Making Free, Prior and Informed Consent (FPIC) Work: Challenges and Prospects for Indigenous Peoples. Forest Peoples Programme: Moreton-in-Marsh. 40 ILO 169, opened for signature �June�� 27, 1989, 28 ILM 1382 (entered into force September�� 5, 1991). 41 International Finance Corporation, 2007. ILO Convention 169 and the Private Sector. Questions and answers for IFC Clients. World Bank Group, pages 3-6. 42 International Finance Corporation, 2007. 43 International Finance Corporation, 2007, page 6. 44 Finer,��, M., C. N. �J��enkins��, S. L. Pimm, B. �K��eane��, and C. Ross, 2008. Petroleum and Gas Projects in the Western Amazon: Threats to Wilderness, Biodiversity, and Indigenous Peoples. Forrest C. and Frances H. Lattner Foundation Inc.: USA. 45 Government of Ecuador, 2008. National Policy towards peoples in voluntary isolation, Ecuador. 46 Larrea and Warnars, 2009. 47 �B��ass et al., 2008; Finer et al. 2008; Finding Species, 2010. “Finding Species: Giving a Face to Biodiversity”. Last accessed August 30, 2010, at: http://www.findingspecies.org; Orta Martinez, M., 2010. Oil frontiers in the Peruvian Amazon. Impacts of oil extraction for the Achuar of Río Corrientes, PhD thesis. Institut de Ciencia i Technologia Ambientals, Universitat Autonomia Barcelona: Spain. 48 El Dario hoy, April 4, 2010b. “Indígenas desconocen sobre el proyecto Yasuni-ITT”. Last accessed August 30, 2010, at: http://www.hoy.com.

60 Exploring the Right to Diversity in Conservation Law, Policy, and Practice

Although the Yasuni-ITT Initiative does not explicitly include Box 1. K ey provisions of ILO 169. provisions of UNDRIP and ILO 169, if its objectives are well- • Governments shall develop coordinated and systematic implemented, it could arguably be one response to conflicts between and barriers to Indigenous peoples’ interests, nature action to protect the rights of Indigenous and tribal 49 peoples. conservation, and resource extraction projects. The success • Governments shall consult these peoples through of the Initiative, however, depends greatly on the realization appropriate procedures and representative institutions of the right to free, prior and informed consent, as well as the when applying the Convention’s provisions and ensure development of trust between the implementing institutions their participation in the process of development. and Indigenous peoples. To date, the development of the • Governments shall ensure that Indigenous and tribal Initiative proposal has included neither the active participation peoples have the right to decide their own priorities for nor the real consent of Indigenous peoples. Various the process of development. Indigenous people are disappointed about this and some have even protested against the general lack of participation with • Governments shall respect Indigenous and tribal 50 peoples’ special relationship with lands, which includes governmental policies. territories both occupied and used. • Governments shall recognize the rights of ownership Yasuni-ITT and Biological Diversity and possession over lands traditionally occupied and take steps to identify these peoples’ lands and establish Arguably, the Yasuni-ITT Initiative also has the potential to procedures to resolve land claims. realize aspects of the Convention on Biological Diversity • Governments shall safeguard their rights to natural (CBD) and the UNESCO Man and Biosphere Reserve Programme (MAB). To begin with, the objectives of the resources on lands and territories, including the right to 51 participate in the use, management, and conservation CBD are the conservation of biological diversity, the of resources. sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic • Where the State retains ownership of mineral and 52 subsurface resources, Indigenous and tribal peoples resources. Parties are mandated to consider several cross- shall be consulted prior to programmes of exploration cutting issues such as sustainable management, traditional or exploitation of resources and wherever possible, knowledge, protection of threatened species and biological participate in the benefits of exploitation and receive diversity, financial mechanisms, technology and information compensation for damage resulting from exploitation. sharing, and raising of awareness. Under Article 8 (In-Situ • Indigenous and tribal peoples shall not be removed Conservation), Parties are obliged to establish “a system of protected areas or areas where special measures need to be from lands except where necessary as an exceptional 53 measure and with their free and informed consent. If taken to conserve biological diversity”. Furthermore, the consent cannot be obtained, relocation should only Convention mandates developed country Parties to “provide occur in compliance with due legal process. new and additional financial resources” to developing country • Whenever possible, Indigenous and tribal peoples shall Parties” and fully accounts for the fact that “economic and social development and eradication of poverty are the first have the right to return to traditional lands or to receive 54 compensation if return is not possible. and overriding priorities of the developing country Parties”. However, some critics feel that that the CBD principles have not been effectively implemented either in Ecuador or internationally.55

With more specific focus on Yasuni, a UNESCO MAB is not intended to be strictly protected; it needs to include sustainable management practices. Biosphere reserves are zoned into core areas, buffer zones, and transition zones. The core requires legal protection and has the highest biological and protection value. Yasuni’s core is not yet declared, as the whole area contains the high levels of biological diversity and it is thus difficult to decide which part is most diverse. The ec/noticias-ecuador/indigenas-desconocen-sobre-el-proyecto-yasuni-itt-400869.html. 49 Larrea et al., 2009. 50 Warnars, L., 2010. The Yasuní-ITT Initiative: An international environmental equity mechanism? MSc Thesis. School of Management, Radboud University Nijmegen: the Netherlands; El Dario hoy, April 4, 2010b. 51 United Nations Convention on Biological Diversity (CBD), opened for signature �June�� 5, 1992, 1760 UNTS 79 (entered into force December 29, 1993). 52 Article 1, CBD. 53 Article 8, CBD. 54 Article 20, CBD. 55 �Val��é�rie�� Biosvert, personal communication via presentation and interview with the author, August 23, 2010.

61 Policy Matters 17, 2010 Theme I: Initiatives of Duty-bearers

core should be surrounded by a buffer zone which can support some activities such as tourism, research, and sustainable use and extraction of resources by local inhabitants, according to tradition and local utilization. The transition zone needs to include people (such as in small towns) who practice sustainable development and conservation.56 Thus, the extractive activities in Yasuni’s buffer or transition areas are arguably not only in accordance with its MAB status, but could also be harnessed to support sustainable development of the local communities in other parts of the biosphere reserve.57

According to Gregory Thaler of UNESCO MAB, “The Yasuni-ITT Initiative offers a creative mechanism for recognizing the value of a portion of the biosphere reserve’s core area and ensuring its protection, and this pioneering proposal exemplifies the function of a biosphere reserve as a site for innovation and learning for sustainable development”.58 The Initiative thus aims to properly implement provisions under the CBD and UNESCO MAB guidelines. The Initiative may even go beyond the MAB guidelines by preventing extractive activities. Moreover, as the CBD is not well-implemented by the Parties, including through the lack of sufficient financial flows from developed to developing countries, the Initiative may be seen as improving the realization of CBD-mandated financial The success of the flows not only from CBD Parties, but also frp, other governments, organizations, enterprises, Initiative depends on and individuals.59 funding, compliance Conclusion with legal obligations, governance capacity, Although the Ecuadorian Government argues that the international community is co-responsible for protecting Yasuni due to its global biodiversity and cultural value, one could argue that it and trust between lies in the hands of the national State to protect Yasuni and its inhabitants properly and in stakeholders. accordance with international and national law from activities such as oil extraction. However, Ecuador, like many other developing countries, highly depends on the (oil) extraction economy, lacks financial resources, and faces governance shortcomings to properly implement international and national legal obligations.60 Moreover, international agreements such as the CBD are not well-implemented. Indigenous peoples and nature have suffered from the oil extraction industry since 1970s and an alternative economic income seems to be necessary to address these problems.

The Yasuni-ITT Initiative arguably may function as a model for other developing countries containing biologically diverse areas with fossil fuel reserves to not only properly implement human rights and environmental instruments, but also to resolve conflicts between resource extraction, nature conservation, and Indigenous peoples’ rights and interests. Although further research is needed to fully understand the Initiative’s implications and functioning, it is clear that the success of the Initiative depends on the forthcoming of the funds, the implementation of the Initiative in accordance with international, regional, and domestic obligations, institutional and governance capacity, and trust within and between the Ecuadorian government and the different stakeholders involved, particularly Indigenous peoples.

Lavinia Warnars ([email protected]), MA, wrote her Master’s thesis on the Yasuni-ITT Initiative in relation to environmental and climate equity. She plans to undertake PhD research on the Initiative as well.

56 David Romo (University of San Francisco, Ecuador), personal communication via interview with the author, �June��,�� 2009. 57 Gregory Thaler (UNESCO MAB), personal communication via email with the author, May, 2010. 58 Thaler, May 2010. 59 Larrea and Warnars, 2009. 60 Larrea�� and Warnars, 2010; Rival, 2010.

62 Exploring the Right to Diversity in Conservation Law, Policy, and Practice

Proposing a Rights-based Landscape History Approach to Conservation Sarah Hitchner, Rebecca Witter, and J. Peter Brosius

Increasing Recognition of Human Rights in International Conservation Policy

In the early 1970s, recognition of the links between a healthy environment and human rights began to shape the international human rights agenda1. As articulated in the Convention on Biological Diversity (1992)2, Draft Declaration of Principles on Human Rights and the Environment (1994), United Nations Millennium Declaration (2000), and World Summit on Sustainable Development (2002), among other initiatives3, the environment has emerged as a key component of many human rights instruments. In recent decades, conservation initiatives have contributed to the realization of human rights by striving to maintain and enhance the long-term benefits of nature for all, including future generations. However, to the extent that some of these same initiatives have diminished the resource control and decision-making of Indigenous peoples and other vulnerable communities, conservation has also undermined human rights4.

While major conservation organizations were initially slow to develop a human rights agenda5, this now appears to be changing with a series of more coordinated efforts. Motions passed at the 3rd World Conservation Congress in Bangkok in 20046, the 5th World Parks Congress in Durban in 20057, and the 4th World Conservation Congress in Barcelona in 20088 expanded protections for the rights of Indigenous peoples and local communities to their land, territories, and livelihoods. In 2007, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples, which contains provisions for the protection of peoples’ substantive rights to Indigenous lands (Articles 10, 25-27) and resources (Articles 23, 26), as well for the procedural rights of prior informed consent (Article 19) and participation (Article 18)9. Indicating further momentum on this front, following the 4th World Conservation Congress in 2008, the International Union for Conservation of Nature (IUCN) produced a step-by-step guide to implementing rights-based approaches to conservation10. That same year, a consortium of international conservation non-governmental

1 This recognition was articulated in, among other agreements, the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment. See Campese, J., G. Borrini-Feyerabend, A. Guigner, and G. Oviedo, 2007. “‘Just’ conservation? What can human rights do for conservation…and vice versa?” Policy Matters, 15: 6-9; and Perrez, F., 2004. “Key questions concerning the human rights and environment debate: An introduction,” pages 4-6 in United Nations Environment Programme, 2004. Human Rights and the Environment: Proceedings of a Geneva Environment Network Roundtable. UNEP: Geneva. 2 At the 4th Convention of Parties of the Convention on Biological Diversity in 1998, Article 8(j), which recognizes the importance of traditional knowledge in conservation, was mandated for implementation through a working group and the importance of in situ conservation was articulated in the Malawi Principles on the Ecosystem Approach. 3 Campese, J., and A. Guignier, 2007. “Human rights: a brief introduction to key concepts”. Policy Matters: 15: 10-26. 4 Campese et al., 2007. 5 Colchester, M., M. F. Ferrari, J. Nelson, C. Kidd, P. Zaninka, M. Venant, L. Regpala, G. T. Balawag, B. Martin, and B. Lasimbang, 2008. Conservation and Indigenous Peoples: Assessing the Progress since Durban. Forest Peoples Programme: Moreton-in-Marsh, England. 6 Resolutions 3.015 (“Conserving Nature and Reducing Poverty by Linking Human Rights and the Environment”), 3.018 (“Mobile Peoples and Conservation”), 3.055 (“Indigenous Peoples, Protected Areas and the CBD Programme of Work”), and 3.065 (“Landscape/Seascape Approach to Conservation”). 7 The Durban Accord urges commitment to “ensuring that people who benefit from or are impacted by protected areas have the opportunity to participate in relevant decision making on a fair and equitable basis in full respect of their human and social rights.” Also, see Recommendations V.9 (“Integrated Landscape Management to Support Protected Areas”), V.21 (The World Heritage Convention”), V.13 (“Cultural and Spiritual Values of Protected Areas”), V.24 (“Indigenous Peoples and Protected Areas”), V.25 (“Co-management of Protected Areas”), and V.27 (“Mobile Indigenous Peoples and Conservation”). 8 Resolutions 4.056 (“Rights-based Approaches to Conservation”), 4.052 (“Implementing the UN Declaration on the Rights of Indigenous Peoples”), 4.048 (“Indigenous Peoples, Protected Areas and Implementation of the Durban Accord”), 4.053 (“Mobile Indigenous Peoples and Biodiversity Conservation”), and 4.049 (“Supporting Indigenous Conservation Territories”). See IUCN, 2009. Resolutions and Recommendations: World Conservation Congress, Barcelona 5-14 October 2008. IUCN: Gland, Switzerland. 9 Article 29 also states that, specific to conservation projects, “indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources.” Also see Campese, J., T. Sunderland, T. Greiber, and G. Oviedo., 2009. Rights-based Approaches: Exploring Issues and Opportunities for Conservation. CIFOR and IUCN: Bogor, Indonesia. 10 Greiber, T. (ed.), 2009. Conservation with Justice: A Rights-based Approach, IUCN Environmental Law and Policy Paper No. 71. IUCN: Gland, Switzerland.

63 Policy Matters 17, 2010 Theme I: Initiatives of Duty-bearers organizations (NGOs)11 developed a common framework for addressing human rights and conservation. In 2009, they established the Conservation Initiative on Human Rights12.

Proposing a Landscape History Approach to Operationalize Rights-Based Conservation

Notable progress in integrating human rights and conservation is being made; as representatives from Indigenous peoples and local communities, academia, and conservation organizations continue to contend, however, this work has arguably not gone far enough to achieve conservation policies and practices that address biocultural diversity and the plurality of meanings that different groups have for rights. Among other concerns, there is a need to reconcile the incommensurabilities between rights that are recognized by international law and the diversity of customary practices, laws, norms, and relations that determine environmental decision-making and management in local communities around the world13. In support of the legacy of efforts now mobilizing toward the goal of turning human rights principles into conservation practice, a landscape history approach is proposed here as one means of not only acknowledging, but also prioritizing the multiplicity of histories, types of knowledge, resource management strategies, and methods of making territorial Figure 1. Tony Paran (right) and Stephen Litah take claims that shape human-environment interactions worldwide. a GPS point at a former longhouse site in the forests surrounding Pa’ Lungan village in the Kelabit Highlands A landscape history approach to rights-based conservation draws of Sarawak, Malaysia, as part of a community mapping from the assertion that within conservation, “most attention should project to document the cultural heritage and history be paid to building a constituency of local support for conservation, embedded in this landscape in 2009. © Sarah Hitchner by researching and then emphasizing ways in which human action has already, in some circumstances, served to enhance biodiversity”14. In recent decades, scholars have revealed how “much, if not all” of the biosphere, previously assumed to be untouched, has been shaped by humans15 and how humans have often enriched rather than diminished biodiversity16. As climate change continues to intensify concerns regarding food and water sovereignty and as tolerance for exclusionary conservation practices wanes, recognition by Indigenous peoples and local communities, academics, conservation practitioners, and policy-makers of the conservation value of human-occupied landscapes is increasing.

This approach draws from and incorporates conservation initiatives that already recognize the contributions of Indigenous peoples and local communities to in situ conservation, including co-management and adaptive governance strategies, community mapping projects, agrobiodiversity conservation, internationally recognized cultural landscapes, and community conserved areas17. Each of these mechanisms works towards contextualized and collaborative conservation strategies, recognition of substantive and procedural rights, a notion of conservation that expands beyond exclusionary

11 BirdLife International, Conservation International, Fauna �&�� Flora International, IUCN, The Nature Conservancy, Wetlands International, the Wildlife Conservation Society, and the World Wide Fund for Nature/World Wildlife Fund. 12 Conservation Initiative on Human Rights, 2010. Last�� accessed August 13, 2010, at: http://cms.iucn.org/about/work/programmes/social��_ policy/scpl_cihr. 13 Peluso, N. L., and P. Vandergeest, 2001. “Genealogies of the political forest and customary rights in Indonesia, Malaysia, and Thailand”. The Journal of Asian Studies, 60: 761-812; Ribot, J. C., and N. L. Peluso, 2003. “A theory of access”. Rural Sociology, 68: 153-181; Zerner, C., 2003. Culture and the Question of Rights: Forests, Coasts, and Seas in Southeast Asia. Duke University Press: Durham. 14 Guyer, J., and P. Richards, 1996. “The invention of biodiversity: Social perspectives on the management of biological variety in Africa”. Africa: Journal of the International African Institute, 66(1): 1-13. 15 Bal�é��e, W. L., 1998. Advances in Historical Ecology. Columbia University Press: New York, page 14. 16 Bal�ée, W. L., 1992. “People of the fallow: a historical ecology of foraging in lowland South America”, pages 35-57 in Redford, K. H., and C. Padoch (eds.), Conservation of Neotropical Forests: Working with Traditional Resource Use. Columbia University Press: New York; Fairhead, J., and M. Leach, 1996. Misreading the African Landscape: Society and Ecology in a Forest-Savanna Mosaic, African Studies Series. Cambridge University Press: Cambridge, New York; Guyer and Richards, 1996. 17 UNESCO, 2002. Cultural landscapes: The challenges of conservation… shared legacy, common responsibility, World Heritage Papers 7, Associated workshops, November 11-12, 2002, Ferrara, Italy. UNESCO World Heritage Centre: Paris.

64 Exploring the Right to Diversity in Conservation Law, Policy, and Practice

protected areas, and more nuanced understandings of the links between cultural A landscape history and biological diversity18. A rights-based landscape history approach to conservation approach ensures local differentiates itself from these initiatives by using diverse historical data to translate integrity by focusing on between customary resource relations that determine environmental governance in social and cultural histories specific places and the rights that are recognized by international law. and diverse mechanisms In anthropology, art, ecology, geography, and history, among other disciplines, the term for articulating rights. “landscape” has taken on multiple meanings. An anthropological perspective proposes an explicitly anthropocentric sense of the term that highlights human-environment interactions through time, as experienced by the people who live or who have lived in these places. This does not negate other landscape approaches. In fact, ideally, an integrated landscape approach to conservation planning would incorporate landscape history into the full understanding of long-term, landscape-scale change. Finally, a landscape history approach ensures local integrity by taking as its starting point the social and cultural histories of specific landscapes and the diverse mechanisms for articulating rights, for example, through dream maps19, song20, memory21, and practices associated with naming22, representing and symbolizing23, hunting24, and planting25.

Challenges to a Rights-Based Landscape History Approach to Conservation

There are several distinct challenges inherent in using landscape history to operationalize rights-based conservation. First, as with any genuinely collaborative approach, this approach far exceeds the capabilities of rapid appraisal techniques and does not produce immediate deliverables to donors and others who expect quick and measurable results. Second, in places of extreme poverty, the anticipated economic benefits associated with the potential for tourism in conventional protected areas may take precedence over other, less lucrative conservation alternatives. Addressing these challenges will require new thinking, perhaps drawing from adaptive management models, in how to manage these landscapes not as cultural sites frozen in time, but as living and changing environments. Figure 2. Residents from the village of Makandezulu However, these challenges are also opportunities for the creativity and B await resettlement from Mozambique’s Limpopo collaboration that a rights-based landscape approach to conservation National Park. By sharing stories about their links engenders. Such opportunities could lead to the discovery of what to the ancestors here and their daily resource use “an ethical, sustainable, honorable human place in nature might actually practices, these women not only contribute to orating look like”26. the history of this land, but also legitimize their rights (and those of their children) to make decisions over Given both the proliferation of global environmental concerns such resources here in the future. © Rebecca Witter as declining ocean health and climate change, as well as the shift in

18 Brosius, J. P., and S. L. Hitchner, 2010 (forthcoming). “Cultural diversity and conservation”. International Social Science Journal, 199. 19 Brody, H., 1982. Maps and Dreams. Pantheon Books: New York. 20 Roseman, M., 1998. “Singers of the landscape: song, history, and property rights in the Malaysian rain forest”. American Anthropologist, 100: 106- 121; West, P., 2005. “Translation, value, and space: theorizing an ethnographic and engaged environmental anthropology”. American Anthropologist, 107: 632-642. 21 Moore, D. S., 1993. “Contesting terrain in Zimbabwe’s eastern highlands: political ecology, ethnography, and peasant resource struggles”. Economic Geography, 69: 380-401. 22 Feld, S., 1996. “Waterfalls of song: an acoustemology of place resounding in Bosavi, Papua New Guinea,” pages 91-136 in Feld, S., and K. H. Basso (eds.), Senses of Place. School of American Research Press: Santa Fe; Gengenbach, H., 2000. “Naming the past in a ‘scattered’ land: memory and the powers of women’s naming practices in southern Mozambique.” International Journal of African Historical Studies, 33(3): 523-542. 23 Vel�á��squez Runk, J., 2009. “Social and river networks for the trees: Wounaan’s riverine rhizomic cosmos and arboreal conservation”. American Anthropologist, 111: 456-467. 24 Brody, 1982; West, 2005. 25 Dewees, P. A., 1995. “Trees and farm boundaries: farm forestry, land-tenure and reform in Kenya”. Africa, 65: 217-235; Peluso, N.L., 1996. “Fruit trees and family trees in an anthropogenic forest: ethics of access, property zones, and environmental change in Indonesia”. Comparative Studies in Society and History, 38: 510-548; Schroeder, R. A., 1993. “Shady practice: gender and the political ecology of resource stabilization in Gambian garden orchards”. Economic Geography, 69: 349-365. 26 Cronon, W., 1995. “The Trouble with Wilderness; or, Getting Back to the Wrong Nature”, pages 69-90 in Cronon, W. (ed.), Uncommon Ground: Rethinking the Human Place in Nature. W. W. Norton & Co.: New York, page 81, emphasis added.

65 Policy Matters 17, 2010 Theme I: Initiatives of Duty-bearers

conservation practices from place-based to market-based approaches, it is clear that the links between conservation and human rights are changing in both policy and practice. A rights-based landscape history approach to conservation is not a panacea; instead, it is one part of a much larger effort to genuinely respect human rights in conservation processes.

Sarah Hitchner ([email protected]) is a post-doctoral research associate at the Center for Integrative Conservation Research (CICR) at the University of Georgia. Her dissertation fieldwork in Sarawak, Malaysia, focused on collaboratively documenting the landscape history of the anthropogenic rain forest of the Kelabit Highlands. Rebecca Witter ([email protected]) is a post-doctoral research associate at the CICR. Her dissertation field research tracked the complex relationship between human mobility, displacement, and resource access in the current context of impending resettlement from Mozambique’s Limpopo National Park. J. Peter Brosius (pete.brosius@gmail. com) is a professor of anthropology at the University of Georgia and the director of the CICR. He is a member of the coordinating committee of the Advancing Conservation in a Social Context research initiative and focuses on global conservation and the politics of scale.

Legal Expression of Indigenous Peoples’ Worldviews: An Analysis of the Proposed Universal Declaration on the Rights of Mother Earth

Mary Munson Abstract A proposal to create rights for Mother Earth has been submitted to the United Nations. Its basic premise, that nature has inherent rights similar to those of humans, has arisen before in legal discourse, but has never been widely accepted. The sponsors of the proposal claim that it reflects an indigenous people’s worldview, which often includes a spiritual connection to nature and respect for nature’s intrinsic value as a source of life. Emerging norms in international law arguably support Mother Earth rights as an expression of indigenous people’s recognized social and cultural rights. However, international support for the United Nations proposal might be weakened because the concepts are new and emerging, its terms are not well- defined, it challenges underlying assumptions of Western legal systems, and statements made by some of its supporters associate it with controversial political positions. Despite the obstacles, the proposal should be discussed and refined so can be given fair consideration by the international community.

In April 2010, Bolivian President Evo Morales Ayma hosted the first World People’s Conference on Climate Change and the Rights of Mother Earth (“World People’s Conference”). Indigenous groups and their supporters from about 140 countries attended what President Morales described as “bringing together the indigenous voices that had been left out of international discussions about strategies to address global climate change.”1 The World People’s Conference produced a draft Universal Declaration on the Rights of Mother Earth (Universal Declaration), which specifies that “Mother Earth

1 Morales, E., 2010. “Combating climate change: lessons from the world’s indigenous peoples”. The Los Angeles Times online edition. Last accessed on August 26, 2010, at: http://articles.latimes.com/2010/apr/23/opinion/la-oew-0423-morales-20100423.

66 Exploring the Right to Diversity in Conservation Law, Policy, and Practice

and all beings of which she is composed” have 10 “inherent” rights Box 1. The inherent rights of Mother Earth and all beings 2 of which she is composed. (see Box 1 ).

• The right to life and to exist; Article 3 describes obligations to Mother Earth held by all humans, • The right to be respected; including a duty to “respect, protect, conserve and, where necessary, • The right to regenerate its bio-capacity and to restore the integrity of the vital ecological cycles, processes and 3 continue its vital cycles and processes free from balances of Mother Earth.” It includes the obligation to “guarantee human disruptions; peace and eliminate nuclear, chemical and biological weapons,” and • The right to maintain its identity and integrity as “promote economic systems that are in harmony with Mother Earth 4 a distinct, self-regulating, and interrelated being; and in accordance with the rights recognized in this Declaration.” • The right to water as a source of life; The proposal was submitted to the Ad Hoc Working Group on Long- • The right to clean air; Term Cooperative Action under the United Nations Framework 5 • The right to integral health; Convention on Climate Change on May 7, 2010. • The right to be free from contamination, pollution, and toxic or radioactive waste; Establishing rights of Mother Earth represents a departure from 6 • The right to not have its genetic structure the standard way that rights are often viewed. Rights are generally modified or disrupted in a manner that threatens applied in an anthropocentric way – primarily belonging to human 7 it integrity or vital and healthy functioning; and beings, not trees, rocks, or animals. This article will examine how the • The right to full and prompt restoration of the unconventional view of rights enshrined in the Universal Declaration violated rights recognized in this Declaration of the Rights of Mother Earth might be supported by international caused by human activities. law and existing theories. This will be followed by a survey of obstacles to the Declaration’s adoption at the United Nations, concluding with a brief comment about whether the concept merits further consideration by the international community.

How the Human Rights Movement Justifies Mother Earth Rights

An area of emerging international law recognizing rights of Indigenous peoples8 offers a justification for granting rights for Mother Earth. Indigenous peoples’ rights are considered to be third generation rights alongside the right to a decent environment and other economic, social, and cultural rights.9 Indigenous peoples’ rights grew out of the legacy of the colonial era, which resulted in the political, cultural, economic, and religious dispossession of vast numbers of Indigenous peoples.10 Arguably one of the most devastating effects of colonization was a widespread loss of rights to inhabit and use

2 Proposal: Universal Declaration of the Rights of Mother Earth, April 24, 2010. Last accessed August 26, 2010, at: http://pwccc.wordpress. com/2010/04/24/proposal-universal-declaration-of-the-rights-of-mother-earth/. 3 Universal Declaration of the Rights of Mother Earth, Article 3(2)b, d-g. 4 Universal Declaration of the Rights of Mother Earth, Article 3(2)k, l. 5 1992 United Nations Framework Convention on Climate Change, United Nations Doc. A/AC.237/18 (Part II)/Add.1. 6 Mother Earth, a term used by Indigenous peoples, implies a relational component to humans that reflects the Earth’s maternal role as the “source of life, nourishment and learning” (Proposal: Universal Declaration of the Rights of Mother Earth, Preamble). Nature is a more general term and lacks the relational element. For purposes of this article, “Mother Earth rights” and “rights for nature” are treated as the same legal concepts. Although their exact definitions may differ, both refer to rights vested in non-human entities. 7 In many countries, there are laws that protect animals from mistreatment, to that extent there is a body of animal rights law. See Singer, P., 1989. “All Animals Are Equal,” pages 148-162 in Regan, T., and P. Singer (eds.), Animal Rights and Human Obligations. Prentice Hall: New Jersey. 8 There is no universally accepted definition of “Indigenous peoples”, but in general, it refers to tribal or aboriginal peoples whose social, cultural, and economic conditions distinguish them from other sections of the national community; whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; who can trace descent from the populations which inhabited the country or region at the time of conquest or colonization; and who retain some or all of their own social, economic, cultural, and political institutions. See Inter-Agency Support Group on Indigenous Issues, 2008. United National Development Group Guidelines on Indigenous Peoples’ Issues. Last accessed August 26, 2010, at: http://www.ohchr.org/Documents/Publications/UNDG_training_16EN.pdf. 9 See Brownlie, I., 2008. Principles of Public International Law, 7th Edition. Oxford University Press: Oxford, United Kingdom, pages 566-567. The right to a decent environment is related to Mother Earth rights only in that both protect the environment; the former protects it by defining rights for humans to protected them from risks caused by a polluted environment, but so far the discourse on this right has not expanded towards endowing nature itself with an intrinsic right to be protected. See Atapattu, S., 2002. “The Right to a Healthy Life or the Right to Die Polluted? The Emergence of a Human Right to a Healthy Environment under International Law”. Tulane Environmental Law Journal, 16: 65-126; Rosencranz, A., 2003. “The Origins and Emergence of International Environmental Norms”. Hastings International & Comparative Law Review, 26: 309; Pederson, O. W., 2008. “European Environmental Human Rights and Environmental Rights: A Long Time Coming?” Georgetown International Environmental Law Review, 21: 73. 10 Wiessner, S., 1999. “Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis”. Harvard Human Rights Journal, 12: 57-128.

67 Policy Matters 17, 2010 Theme I: Initiatives of Duty-bearers traditional lands and natural resources. Colonial powers justified their dominion over territories inhabited by Indigenous peoples by claiming a right under international law to acquire lands they had conquered, occupied, or found to be ‘empty’, based on the ill-conceived notion that Indigenous societies were not capable of exercising sovereignty.11 In this way, international law, especially the rules that governed title to territory, legally sanctioned the colonization and subjugation of Indigenous territories.12

As Indigenous peoples became subjects of colonial rule, they began demanding recognition of their right to restore collective and individual ownership of land.13 By the early 19th century, Indigenous leaders frustrated by their treatment under unfair laws began to seek redress in the newly created League of Nations and the International Labour Organization (ILO).14 The result was the adoption of two ILO Conventions on Indigenous and Tribal Populations and, after the creation of the United Nations, establishment of commissions and working groups to attempt to address their concerns.15 These and other actions resulted in acceptance of the principle of self-determination, which recognizes that Indigenous peoples hold rights independent of those granted by the state in which they happen to live.16

Recently adopted treaties and declarations have further expanded these rights to include Indigenous peoples Indigenous people’s right to sustain and practice their culture, including language, religious have gained ceremonies, and traditional lifestyles.17 This recently recognized right allows for the argument significant ground that if respect for the Earth as a being with intrinsic rights is an important expression of an under international Indigenous culture, then granting rights to Mother Earth might be required under that right, at least on Indigenous lands. The issue is then whether such respect for Mother Earth is an law, but still expression of culture. There is substantial evidence to answer that question in the affirmative, grapple with the at least for some Indigenous groups. In many cases, Indigenous culture is closely connected colonial legacy of to ancestral lands and a spiritually-based relationship with nature.18 As the Secretariat of the Convention on Biological Diversity (CBD) asserts, most Indigenous peoples “used biological dispossession. diversity in a sustainable way for thousands of years and their cultures and knowledge are deeply rooted in the environment on which they depend.”19 Other sources assert that the relationships between Indigenous peoples often consist of mutual respect and deep spiritual connection.20 Consequently, an expanding number of treaties, declarations, and associated organizations explicitly recognize the link between an Indigenous community’s ability to practice and sustain its culture (in essence, to access its cultural rights) and the protection of the local environment and ecosystem.21 The 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)22 recognizes the “right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied lands, territories, waters and coastal seas and other resources”.23 These and other provisions establish that in order to protect Indigenous peoples’ traditions and cultures, their traditional relationship to the land must also be respected.

The United Nations Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing

11 Gilbert, J., 2006. Indigenous Peoples’ Land Rights Under International Law: From Victims to Actors. Transnational Pub.: Ardsley, New York, pages 3-40. Under the doctrine of terres nullius, a territory was considered “empty” or vacant if it had no so-called “civilized” peoples or recognized government. 12 Gilbert, 2006, page 1. 13 Gilbert, 2006, page 88. 14 Singel, W. T., 2009. “New Directions for International Law and Indigenous Peoples”. Idaho Law Review, 45: 509. 15 Singel, 2009. 16 Wiessner, S., 2009. “Indigenous Sovereignty: A Reassessment in Light of the United Nations Declaration on the Rights of Indigenous Peoples”. Vanderbilt Journal of Transnational Law, 41(4): 1149-1159. 17 Rampersad, E. R., 2009. “Indigenous adaptation to climate change: preserving sustainable relationships through an environmental stewardship claim & trust fund remedy”. Georgetown International Environmental Law Review, 21: 595-596. 18 Pasqualucci, J. M., 2009. “International Indigenous Land Rights: A Critique of the Jurisprudence of the Inter-American Court of Human Rights In Light of the United Nations Declaration on the Rights of Indigenous Peoples”. Wisconsin International Law Journal, 27(1): 51. 19 Secretariat of the Convention on Biological Diversity, 2004. Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities Montreal, CBD Guidelines Series. SCBD: Montreal, page 1. 20 Whitt, L. A., M. Roberts, W. Norman, and �V��. Griev��es, 2001. “Belonging to land: indigenous knowledge systems and the natural world”. Oklahoma City University Law Review, 26: 701. 21 Rampersad, 2009. 22 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), United Nations Doc. A/RES/61/295 (Sept. 13, 2007). Last accessed August 26, 2010 at: http://www.un.org/esa/socdev/unpfii/en/drip.html. 23 UNDRIP, Article 25, emphasis added.

68 Exploring the Right to Diversity in Conservation Law, Policy, and Practice

Countries (REDD)24 provides an example of an international agreement that recognizes Indigenous people’s rights to culture. REDD is designed to help developing countries design, fund and implement strategies to protect their forests under the auspices of the Food and Agriculture Organization of the United Nations (FAO), the United Nations Development Programme (UNDP), and the United Nations Environment Programme (UNEP).25 These bodies are now requiring participation of Indigenous groups in planning and decision-making to ensure that national strategies supported by REDD respect Indigenous rights.26 As a result, many Indigenous peoples who live within or depend upon forests are actively taking part in designing projects and controlling decisions related to their lands.27 For example, the Centro para la Autonomía y Desarollo de los Pueblos Indígenas (Center for Indigenous Peoples’ Autonomy and Development) in Nicaragua has helped design REDD projects and Figure 1. The view of Cochabamba, Bolivia, where the first World People’s Conference on Climate the Aliansi Masyarakat Adat Nusantara (Indigenous Peoples Alliance Change and the Rights of Mother Earth was held of the Archipelago) is working with the Indonesian Government to from April 11-14, 2010. © Patricia Siemen reform its forest policy to recognize Indigenous peoples’ rights over their traditional forests.28

Another example is the recognition in 2009 by the Ad Hoc Working Group on Long-term Cooperative Action (AWG-LTC) under the United Nations Framework Convention on Climate Change (FCCC) that “effective participation of women and Indigenous peoples are important for effective action on all aspects of climate change,” as well as of the need to have “respect for the knowledge and rights of indigenous peoples” in protecting forests.29

Furthermore, the CBD contains four provisions to protect the interests of Indigenous communities, including a section that requires Parties to maintain and promote the application of “knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.”30 Parties to the Convention have also adopted voluntary guidelines for assessing proposals to take place or which are likely to impact on sacred sites and on lands and waters traditionally occupied or used by Indigenous and local communities, in order to help prevent their potential adverse impacts on these communities.31 These guidelines clearly acknowledge that the protection of biological diversity is connected with protecting the cultures of many Indigenous peoples.

The above examples from the REDD, AWG-LTC, and CBD do not endow nature with rights. However, they illustrate the growing recognition that Indigenous peoples have rights to protect their natural resources in their own manner and to maintain control over decisions affecting their traditional lands. This should be viewed in combination with the recognition of the collective right to maintain Indigenous cultures, often expressed through practices reflecting a spiritual and respectful relationship with the land. It logically follows that where Indigenous peoples traditionally make decisions about land or natural resource use based upon an the assumption that nature has rights, and where these land practices are

24 The United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (UN-REDD) is a collaborative framework for coordinating interventions, both among the participating United Nations organizations and with other partners (including international financing and grant-making institutions) to promote national action to protect forests delivered through Joint Programmes, and supporting measures at regional and global levels. See UN-REDD, 2009. “The United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries”. Last accessed August 26, 2010, at: http://www.un-redd. org/AboutUNREDDProgramme/tabid/583/Default.aspx. 25 UN-REDD, 2009. 26 Rai, M., 2009. “REDD and the rights of Indigenous Peoples: Ensuring equity and participation in World Bank funds”. Last accessed August 28, 2010, at: http://brettonwoodsproject.org/art.shtml?x=564322. 27 Johnston, S., and �V.�� Tauli-Corpuz,�� 2010. The Road Ahead: What next for Indigenous People in the climate change negotiations?, Traditional Knowledge Bulletin – Topical Issues Series. United Nations University Institute of Advanced Studies online. Last accessed August 26, 2010, at: http://www. unutki.org/default.php?doc_id=172. 28 Johnston and Tauli-Corpuz, 2010, page 3. 29 Secretariat of the Framework Convention on Climate Change, 2009. Report of the Ad Hoc Working Group on Long-term Cooperative Action under the United Nations Framework Convention on Climate Change on its eighth session (FCCC/AWGLCA/2009/17). 30 Convention on Biological Diversity of the United Nations Conference on the Environment and Development, open for signature June 5, 1992, U.N. Doc. DPI/1307, Article 8(j). 31 Secretariat of the Convention on Biological Diversity, 2004.

69 Policy Matters 17, 2010 Theme I: Initiatives of Duty-bearers considered central to their cultural identity, then a legal system that includes a system of Earth rights is justified under a human rights framework. Others have acknowledged that the mandate to protect Indigenous peoples’ culture can be used to protect the Earth and its beings, indicating that the methods used to protect the Earth and its beings are part of the culture as well.32 The conclusion is that where Indigenous peoples consider Mother Earth rights as an expression of how they treat their lands and how they practice their culture and traditions, the emerging third generation human rights require the legal system affecting those lands to incorporate some form of rights for Mother Earth33 or rights for nature regime.

Rights for Nature as a Parallel to Mother Earth Rights

In a process outside of the Indigenous rights movement, a separate but similar movement to grant rights to nature emerged in the Western hemisphere in the early 1970s.34 In 1972, United Figure 2. The stage at the World People’s Conference in States law professor Christopher Stone published an influential Cochabamba, Bolivia. © Arthur Girling article asserting that natural objects such as trees should be able to seek legal protection.35 Around the same time, the ‘Deep Ecology’ movement emerged, linking a diverse, flourishing environment to humans’ spiritual and physical well-being and calling for “biospherical egalitarianism”36 that reflected a recognition of nature’s intrinsic value.37 The arguments in favor of legal rights for nature primarily focused on the moral and ethical considerations, with some writers claiming that it is a central issue in environmental philosophy.38 Many writers compared the arguments for nature’s rights similar to the human civil rights arguments According to some against slavery and the subjugation of women.39 In recent years, cultural philosopher Thomas Berry argued that the Earth’s very survival depended on a new legal system that endows every philosophers, Earth’s component of the Earth community with rights.40 The topic of rights for nature continues to be very survival depends discussed in academic journals, usually centering on its moral, ethical, and religious justifications on a fundamentally and the need to find effective solutions to unprecedented environmental crises.41 Adopting different legal system. Mother Earth rights would be consistent with these justifications and provides some support for considering the adoption of the Universal Declaration.

32 Kastrup, J. P., 1997. “The Internationalization of Indigenous Rights from the Environmental and Human Rights Perspective”. Texas International Law Journal, 32: 97. 33 The term “Mother Earth” is not completely foreign to international instruments; the United Nations Human Rights Council recognized the “importance” of respecting Mother Earth, its ecosystems and all its natural beings, but did not go further and propose any enforceable rights. See UN Human Rights Council Resolution 10/4, in UN Human Rights Council, Draft Report of the Human Rights Council on its Tenth Session 13, at 15, UN Doc. A/HRC/10/L.11 (March 31, 2009). 34 The movement drew upon some inspiration from Indigenous peoples, feminist philosophies, Eastern spiritual traditions, Christian writings, the pastoral/naturalist literary tradition, and others. See Devall, B., and G. Sessions, 1983. Deep Ecology: Living as if Nature Mattered. Gibbs M. Smith: Layton, Utah, pages 80-91. 35 Stone, C. D., 1972. “Should trees have standing? Toward legal rights for natural objects”. Southern California Law Review, 45: 450. This article was cited by a United States Supreme Court judge who argued that an environmental group could bring claims on behalf of a natural area. While ultimately the Supreme Court refused to recognize the natural area as a plaintiff, this dissenting opinion gained widespread attention. See Sierra Club v. Morton, 405 U.S. 727, 742-743 (1972) (Douglas, L., dissenting). 36 Naess, A., 1995. “The Shallow and the Deep, Long Range Ecology Movement: A Summary”, pages 3-10 in Drengson, A., and Y. Inoue (eds.), The Deep Ecology Movement: An Introductory Anthology. North Atlantic Books: Berkeley, California, page 4. 37 See Devall and Sessions, 1983. For a good overview of the principles of deep ecology, see Mccullough, E. R., 1995. “Through the Eye of a Needle: The Earth’s Hard Passage Back to Health”. Journal of Environmental Law & Litigation, 10(389): 416-420. 38 Fox, W., 1990. Towards a Transpersonal Ecology: Developing New Foundations for Environmentalism. Shambala: Boston, Massachusetts. 39 Nash, R. F., 1989. The Rights of Nature: A History of Environmental Ethics. University of Wisconsin Press: Madison, Wisconsin; Plass, S. A., 2010. “Exploring Animal Rights as an Imperative for Human Welfare”. West Virginia Law Review, 112: 403; Fox, 1990. 40 Berry, T., 2006. Evening Thoughts: Reflecting in Earth as Sacred Community. Sierra Club Books: San Francisco, California, page 110. 41 See, for example, Miller, C., 1998. Environmental Rights: Critical Perspectives. Routledge: London; Tolan, P., 2008. “Ecocentric Perspectives on Global Warming: Towards an Earth Jurisprudence”. The Global Studies Journal, 1(4): 39-50; Rolston III, H., 2010. “Saving creation: faith shaping environmental policy”. Harvard Law and Policy Review, 4(1): 121-148.

70 Exploring the Right to Diversity in Conservation Law, Policy, and Practice

However compelling the arguments may be, the concept of rights for nature has yet to gain widespread acceptance or significant judicial recognition worldwide. The reasons are debatable. One possible explanation is that its association with deep ecology and other somewhat extreme environmental movements may have made it seem too ‘radical’ for many people. As one law professor wrote, [T]hose who embrace [deep ecology’s] teachings have a suspicion or disdain for government and cannot envision any lasting solution to environmental problems that would not entail a fundamental restructuring of society as well as a shift in the objects of human desire … The tenets of deep ecology evidently prescribe large-scale social change as the only meaningful way to fulfill the dogma of this quasi-religious worldview, essentially calling for an de-industrial revolution.42

The association with a ‘radical’ movement might have made the movement too politically controversial, preventing the concept from gaining the widespread support it needed for wider acceptance. There are additional reasons for its lack of support, including the possibility that it poses a challenge to the underlying assumptions of many legal systems (discussed below). As demonstrated by the World People’s Conference, however, the concept has gained widespread support in some circles.

Obstacles to Adoption of the Universal Declaration

A resolution to adopt the Universal Declaration would require a simple majority of the United Nations General Assembly. There are several reasons why achieving this majority would be difficult. One obstacle is that many of the principles have not achieved much global recognition or customary use. One provision (calling on humans to “establish precautionary and restrictive measures to prevent human activities from causing species extinction … or the disruption of ecological cycles”)43 is approaching the sort of widespread use or recognition that might be considered an emerging international norm.44 However, other principles have not reached international acceptance, probably the most notable being the overall concept of rights for nature or Mother Earth. As discussed above, rights for nature has yet to gain widespread acceptance. Whatever the reason, a majority of United Nations members would need to be convinced to agree with the Universal Declaration despite its lack of universal practice or acceptance.

A second obstacle to adoption is that the terms and concepts are not well-defined, arguably making it too vague and ambiguous to receive support. For example, the meaning of a being’s right to ‘life’ and to ‘exist’ is unclear, raising questions such as where a line should be drawn between violating a right and legitimately killing another being, and whether or not it is a violation when one being eats another for food. The Universal Declaration attempts to clarify this by stating that the rights are “specific to their species… and appropriate for their role and function,” and that the “rights of each being are limited by the rights of other beings.”45 However, it is unclear who defines those roles and in what context. For example, something a human or wolf might consider food or prey species likely wouldn’t view its own role in that way. Other uncertainties abound; for example, what is the substance of a “right to be respected”? And if everyone is obligated to “promote economic systems that are in harmony with Mother Earth,” who would identify those systems and what would promoters of other economic systems be expected to do? The Universal Declaration does not include standards for determining different species’ rights, which beings’ rights take precedence in a conflict, and who will make those determinations. Granted, declarations are meant to express broad principles and vague terms can be defined by enforcement bodies such as international courts.46 However, broad political support is unlikely unless United Nations members understand the terms and the meaning of the concepts.

A third obstacle to the adoption of the Universal Declaration is its association with controversial political positions. Just as the rights for nature may have been dismissed because of its association with a ‘radical’ political movement, similar

42 Fritsvold, E. D., 2009. “Under the law: legal consciousness and radical environmental activism”. Law & Social Inquiry, 34(799): 806-807. 43 Universal Declaration of the Rights of Mother Earth, Article 3(2)(i). 44 Many legal instruments have adopted these so-called “precautionary approaches,” thus it could be considered an emerging norm. Examples are the 1992 Rio Declaration on Environment and Development, UN Doc. A/Confl51/5/ Rev.1, 31 I.L.M. 874, 879, Principle 15 (“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities”) and the 1992 United Nations Framework Convention on Climate Change, UN Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM 849 (1992), Article 3(3) (“The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects”). Also see, Kannan, P. M., 2007. “The Precautionary Principle: More Than a Cameo Appearance in U.S. Environmental Law?” William & Mary Environmental Law & Policy Review, 31: 409. 45 Universal Declaration of the Rights of Mother Earth, Articles 1(6), 1(7). 46 Ruebner, R., 2005. “The evolving nature of the crime of genocide”. John Marshall Law Review, 38 (1): 1236.

71 Policy Matters 17, 2010 Theme I: Initiatives of Duty-bearers dynamics may negatively affect the prospects for adoption of the Universal Declaration. As host of the World People’s Conference that launched the Universal Declaration, President Morales used that platform to denounce the current world power structure and capitalist system.47 Likewise, the closing speech by Venezuelan president Hugo Chávez condemned “imperialist capitalism,” insisting that the only solution to climate change was socialism.48 Combined with its Preamble, which states that the capitalist system is one of the causes of destruction, degradation, and disruption of Mother Earth,49 the Declaration’s ensuing message is that support for Mother Earth rights also means rejecting capitalism, a mainstay of the economic systems of countries in much of the developed world. It is unlikely that officials from those countries would support a document that is associated with dismantling their own economies. If the focus had instead been on some of the addressable problems or alleged destructive practices of capitalist countries, there may have been room for constructive discourse and exchange of ideas, but the rhetoric against capitalist economies is clear and direct. Anticipation of those political messages is probably the reason that the United States and other developed countries did not send official delegations to the World People’s Conference. This lack of attendance in turn could explain why the conference recommendations, including the Universal Declaration, received little media coverage in the developed countries.

A further obstacle to adoption by the United Nations is that Mother Earth rights embrace a concept that challenges some Figure 3. Bolivian President Evo Morales greets supporters of the assumptions underlying Western legal systems, thus at the World People’s Conference on Climate Change and the making it more difficult to gain acceptance. Indeed, the Universal Rights of Mother Earth held in Cochabamba, Bolivia, from Declaration has been portrayed by its promoters as “essentially April 11-14, 2010. © Mari Margil expressing an entirely new worldview, particularly arising from an Indigenous perspective, in legal language which is understandable by essentially another culture.”50 The new legal system based on Indigenous peoples’ worldviews is characterized as contrasting with the “Western belief systems … [that have] led industrialized, consumer-based societies to believe they can achieve lasting human well-being by exploiting and damaging Earth.”51 What is this ‘Western belief system’ that so contrasts with the Indigenous worldview that embraces rights for nature? Arguably, the foundations of many Western legal systems52 rest upon the assumptions that it is acceptable for humans to dominate and control nature and that protection of private property interests are fundamental to the rule of law.

Much of present-day Western legal philosophies originated from ancient Greek and Roman philosophies that maintained that humanity is vested intrinsically – often thought by God – with certain inalienable rights.53 The uniting principle was that the world has a rational order with values and purpose built into its very nature.54 As Aristotle claimed, “there is in nature a common principle of the just and unjust that all people in some way divine” and they were recognized as immutable, fixed,

47 World People’s Conference on Climate Change and the Rights of Mother Earth, April 28, 2010. “Peoples’ Agreement”. Last accessed August 26, 2010, at: http://pwccc.wordpress.com/support. 48 Girling, A., 2010. “Rights for Mother Earth: Peoples’ Summit on Climate Change”. Last accessed August 26, 2010, at: http://www. theargentimes.com/feature/rights-for-mother-earth-peoples-summit-on-climate-change-/. 49 “… recognizing that the capitalist system and all forms of depredation, exploitation, abuse and contamination have caused great destruction, degradation and disruption of Mother Earth.” Universal Declaration of the Rights of Mother Earth, Preamble. 50 Goodman, A., 2010. “Bolivia Climate Conference Moves to Establish Universal Declaration of the Rights of Mother Earth: Democracy Now�!� Transcript of interview with Cormac Cullinen”. Last accessed August 26, 2010, at: http://www.democracynow.org/2010/4/22/bolivia_climate_ conference_moves_to_establish. 51 Solon, P., and C. Cullinen, 2009. “We must support a universal declaration of the rights of Mother Earth”. Commentary, The Huffington Post. Last accessed August 26, 2010, at http://www.huffingtonpost.com/pablo-erick-solon-romero-oroza/why-even-a-successful-agr_b_406547.html. 52 The term “Western” refers to the Western hemisphere, but in this context describes the more developed countries, most of which were colonial powers located in the Western hemisphere. This is in contrast to so-called developing countries, which are often in the Southern hemisphere. However, Indigenous peoples live in both developed and developing countries. 53 Heinze, E., 2007. “The Status of Classical Natural Law: Plato and the Parochialism of Modern Theory”. Canadian Journal of Law & Jurisprudence, 20: 323-325. 54 Rachels, J., 2003. The Elements of Moral Philosophy, 4th ed. McGraw-Hill: Boston, Massachusetts, page 53.

72 Exploring the Right to Diversity in Conservation Law, Policy, and Practice

and universal.55 The legal system grew out of attempts to grasp the laws that flowed from this all-knowing but unknowable source.

The all-knowing source that instilled this higher wisdom was defined by Christianity, which is understandable given the strong connections between the Christian ecclesiastical powers and the secular legal systems.56 Deeply rooted within the early Christian traditions was the belief that God created nature for man’s use and desires. This concept that can be traced back to a passage in Genesis I of the Bible, which holds With historical roots in that humanity has “dominion” over the rest of creation and directs humans to “subdue Christianity, Western the earth.”57 There were alternative Christian theologians such as St. Francis of Assisi who argued that the Earth should be respected as part of God’s creation, but these voices legal systems are based on remained in the minority.58 Even as Western legal systems became more secular, these the notion that humanity philosophies of domination over Earth – a legacy of history – remained part of the has ‘dominion’ over the underlying beliefs and assumptions. Earth and that all was As secular legal systems emerged and matured in the West, private property rights also created for man’s desires. became an important fundamental underpinning. As the influential 17th-century English philosopher John Locke wrote, a major purpose of government was to protect man’s right to own property, with property defined as anything that man has removed from the common state of nature through his own labours.59 This right to property was formalized in law and has become a fundamental “right” underlying the legal systems of many states that became the colonial world powers.

This history explains why the concept of Mother Earth rights may seem alien in Western or developed countries, since legal traditions in these nations emerged from religion-based beliefs based on perceptions that humans are superior to all other beings and that the Earth was made for human domination and ownership. Mother Earth rights emerged from completely different religious traditions – the spirituality-based beliefs of many Indigenous peoples that humans are not superior to other beings and that the Earth should be respected and not dominated. The result is contrasting worldviews and a consequent barrier to the acceptance of Mother Earth rights by countries with legal systems influenced by Western philosophies.

Conclusion

There are several reasons why the Universal Declaration may not get the votes it needs for adoption at the United Nations. This should not mean that Mother Earth rights, or rights for nature, should be rejected. Mother Earth rights originated within the traditional legal systems of Indigenous peoples. These systems were destroyed during the colonial era, when Indigenous peoples were subjected to Western legal systems without their consent. Now that they are regaining their sovereignty and rights, it is fair and just to support proposals made to restore their traditional practices and relationships to the land. In fact, UNDRIP seems to require nations to consider Mother Earth rights in at least Figure 4. The vibrant and diverse crowd in attendance some circumstances, for example, where these Mother Earth rights at the World People’s Conference in Cochabamba, allow Indigenous peoples to carry on their cultures. UNDRIP states where the Universal Declaration on the Rights of that “Indigenous groups have the right to maintain and strengthen Mother Earth was written. © Patricia Siemen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands [and] territories” (Article 25), with 55 Hayman, R. L., N. Levit, and R. Delgado, 2002. Jurisprudence Classical and Contemporary: From Natural Law to Postmodernism, 2nd Ed. West Group: St. Paul, Minnesota, page 1. 56 Berman, H. J., 1983. Law and Revolution: The Formation of the Western Legal Tradition. Harvard University Press: Cambridge, Massachusetts, pages 120-23 and 253-54. Medieval Christian philosopher Thomas Aquinas posited that there is a “natural law,” defined as that which “God instilled.” See Brewbaker III, W. S., 2007. “Thomas Aquinas and the Metaphysics of Law”. Alabama Law Review, 58(3): 575-614. 57 French, W. C., 2008. “Stewardship and Environmental Law, Natural Law and Ecological Responsibility: Drawing on the Thomistic Tradition”. University of St. Thomas Law Journal, 5: 12; Rolston III, 2010. 58 Illyn, P., 2009. “Belly-Button Christianity”. North Dakota Journal of Law, Ethics and Public Policy, 23: 605. 59 Locke, J., 1690. Two Treatises of Government, Book II. Last accessed August 5, 2010, at http://www.lonang.com/exlibris/locke/loc-205.htm.

73 Policy Matters 17, 2010 Theme I: Initiatives of Duty-bearers

states “giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems” (Article 27).60 If implementing a legal system with Mother Earth rights accomplishes this restoration, it deserves consideration, at least regarding its application to nature and resources within traditional Indigenous lands or territories.

The remaining question is whether Mother Earth rights should be considered for adoption universally, beyond traditional lands associated with Indigenous peoples who respect Mother Earth rights. This can only be answered if the international community objectively and seriously considers the proposal and engages in discussions to refine the concepts and consider its implications. It may challenge assumptions of many existing legal systems and may offer worthwhile ideas. As one writer puts it, “listening to the wisdom of indigenous peoples could lead to innovative systems of governance, or new approaches to law that better support sustainability and healthy communities.”61 There is no guarantee that this wisdom will indeed produce the desired results, but the global need to ensure justice for Indigenous peoples and the possibility that their ideas could lead to positive legal innovations justify giving Mother Earth rights further consideration.

Mary Munson ([email protected]), JD, LLM, MA, MP, is an Adjunct Professor of Law and the Executive Director of the LLM Program in Environmental Sustainability at St. Thomas University Law School in Florida. She has worked as an attorney, lobbyist, and campaigner for a variety of environmental organizations such as Defenders of Wildlife and the National Parks Conservation Association.

60 ��UNDR�I�P��, Ar��ticles 2�5�� and 27. 61 �C��ullinen, �C��., 200�3��. Wild Law: A Manifesto for Earth Justice. Green Books/Gaia Foundation: Totnes, United Kingdom.

Policy for Biocultural Diversity: Where Are We Now? Luisa Maffi

Since it was first affirmed in the 1988 Declaration of Belém1, the idea of an inextricable link between biological and cultural diversity has given rise to a whole field of research and practice that has become known as biocultural diversity.2 The central tenets of this field are that the diversity of life is diversity in both nature and culture and that the two diversities are co- evolved and interdependent.

Recognition of this link has significant implications for conservation practice and for the policies that regulate access to and use, management, and protection of biodiversity and natural resources. Conservation discourse and policies are moving away from certain preservationist and exclusionary approaches3 toward ones that increasingly promote the full and effective participation of Indigenous peoples and local communities.4 A biocultural approach provides an integrative

1 International Society of Ethnobiology, 1988. “Declaration of Belém”. Last accessed August 13, 2010, at: http://www.ethnobiology.net/global_ coalition/declaration.php. 2 Maffi, L. (ed.), 2001.On Biocultural Diversity: Linking Language, Knowledge, and the Environment. Smithsonian Institution Press: Washington, D.C.; Maffi, L., and E. Woodley, 2010.Biocultural Diversity Conservation: A Global Sourcebook. Earthscan: London and Washington, D.C. 3 Such top-down approaches include those that advocate for protected areas that involve displacement, exclusion, or loss of access for Indigenous peoples and local communities. See Agrawal, A., and K. Redford, 2009. “Conservation and Displacement: An Overview”. Conservation and Society, 7(1): 1-10; Lele, S., P. Wilshusen, D. Brockington, R. Seidler, and K. Bawa, 2010. “Beyond exclusion: alternative approaches to biodiversity conservation in the developing tropics”. Current Opinion in Environmental Sustainability, 2: 1-7. 4 See, for example, Element 2 of the Convention on Biological Diversity’s Programme of Work on Protected Areas. Last accessed August 20, 74 Exploring the Right to Diversity in Conservation Law, Policy, and Practice

framework that further strengthens and motivates this shift. A new focus is becoming apparent in the statements of principle and, in some instances, the programmes of work of various international organizations that make specific reference to the importance of cultural diversity and traditional knowledge in relation to biodiversity (see Box 15).

Box 1. Examples of biocultural diversity in international policy. From Principles to Policies

• The fourth Global Environment Outlook report of the For real progress to be made in mainstreaming a United Nations Environment Programme defines biodiversity biocultural approach to conservation, statements as including “human cultural diversity, which can be affected of principles and objectives must be translated into by the same drivers as biodiversity, and which has impacts on actionable policies. The following review of two the diversity of genes, other species, and ecosystems”; cases in which efforts are underway to incorporate a • The 2009-2012 programme of work of the International biocultural perspective in the policies and programmes Union for Conservation of Nature (IUCN) recognizes the of work of major international organizations serve to importance of both cultural values in relation to nature illustrate current progress and remaining challenges. and cultural diversity as “an important safeguard for both ecosystems and social systems”. It also identifies the cultures The first example concerns the adoption ofa of Indigenous and traditional peoples as “vivid examples of biocultural approach within the International Union the profound and lasting connections between cultural and for Conservation of Nature (IUCN). In 2008, at the th biological diversity”; and 4 World Conservation Congress in Barcelona, Spain, • The vision of IUCN’s Commission on Environmental, the theme of the links between biological and cultural Economic and Social Policy (CEESP) includes “a world diversity was highlighted in “Biocultural Diversity where cultural diversity is intertwined with biological diversity and Indigenous Peoples’ Journey”, which was held and both generate abundant livelihoods opportunities”. One during the Congress Forum and included dozens of of the key objectives of CEESP’s mandate for 2009-2012 bioculturally-oriented events. Against this backdrop, is promoting biocultural diversity and reducing negative IUCN approved Resolution 4.055 (“Integrating impacts on it. In addition, one of CEESP’s key themes is culture and cultural diversity into IUCN’s policy and the Theme on Culture and Conservation, which focuses on programme”) by an overwhelming majority vote of 6 improving “knowledge, policy and practice through linking its Members’ Assembly. The resolution called for cultural and biological diversity, their common threats and by the establishment of “appropriate mechanisms to… strengthening opportunities”. develop policies to generate improved understanding of the relations between culture, cultural diversity and biological diversity”. Taking into account the diversity of cultural values, knowledge, and practices related to the natural environment, it also called for “the development of a clear policy on understanding and incorporating diverse cultural values and practices into the planning, design and implementation of programmes to conserve the integrity and diversity of nature and to ensure that any use of natural resources is equitable and ecologically sustainable”.

In the follow-up to the World Conservation Congress, the sponsors of Resolution 4.055 addressed a letter to IUCN’s Director General to request that she take action to implement the resolution.7 However, notwithstanding the statements of principle in the 2009-2012 programme of work, the IUCN Council did not include this resolution among those that were prioritized for implementation. In her response to the sponsors’ letter, the Director General indicated that the reason for this decision was that Resolution 4.055 had been deemed to be among those “including actions and issues outside the scope of the 2009-2012 Programme”.8 This meant that it “would necessarily require additional resources for implementation”

2010, at: http://www.cbd.int/protected/pow/learnmore/intro/?prog=p2. 5 Bullet 1: UNEP, 2007. Global Environment Outlook: Environment for Development. UNEP: Nairobi, page 160. Bullet 2: IUCN, 2010. “Shaping a Sustainable future… The IUCN Programme 2009-2012”. Last accessed August 13, 2010, at: http://www.iucn.org/about/work/global_programme. Bullet 3: CEESP, 2008. “CEESP’s 2009-2012 mandate”. Last accessed August 13, 2010, at: http://cmsdata.iucn.org/downloads/ceesp_ mandate_2009_2012.pdf; See CEESP, 2010. “Theme on Culture and Conservation”. Last accessed August 13, 2010, at: http://www.iucn.org/ about/union/commissions/ceesp/wg/tcc. 6 Resolution 4.055 was co-sponsored by the Center for Biodiversity and Conservation of the American Museum of Natural History, Terralingua, and Macquarie University’s Centre for Environmental Law. Last accessed August 13, 2010, at: http://www.iucn.org/congress_08/assembly/ policy/. Among government members, the voting record was 81 (97.59%) for, two (2.41%) against, and 18 abstentions. Among non-governmental organization members, the voting record was 194 (99.49%) for, one (0.51%) against, and 38 abstentions. 7 The letter, dated March 9, 2009, and submitted by Terralingua on behalf of the other sponsors, was endorsed by 18 other researchers and professionals. 8 Form letter from IUCN’s Director General to Terralingua concerning the results of prioritization of Resolutions and Recommendations from

75 Policy Matters 17, 2010 Theme I: Initiatives of Duty-bearers and was not considered a priority for additional fundraising.

In spite of this setback, the issue of cultural diversity in relation to biodiversity remains on the agenda within IUCN. In a recent Science editorial, IUCN’s Director General highlighted the maintenance of traditional cultures as one of the aspects of well-being provided by biodiversity.9 Furthermore, the Inter-Commission Task Force on Culture and Conservation was recently formed within IUCN, which should provide concrete Biological and cultural avenues for the continued promotion of a biocultural perspective among IUCN’s members and partners and, therefore, for the future establishment of the types of policies advocated diversity are co-evolved by Resolution 4.055. Given IUCN’s prominent position within the conservation community, and interdependent. the organization remains a key arena for the mainstreaming of a biocultural approach at the international level.

Another major arena for the inclusion of biocultural diversity in international policies and programmes opened recently through efforts undertaken by the Secretariat of the United Nations Convention on Biological Diversity (CBD) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) to develop a joint programme of work on the links between biological and cultural diversity. The programme of work was drafted at the International Conference on Biological and Cultural Diversity: Diversity for Development – Development for Diversity that was held from June 8-10, 2010, in Montreal, Canada, in the context of the International Year of Biodiversity. The draft programme of work is to be submitted for adoption by the 10th Conference of the Parties (COP 10) of the CBD in October, 2010. The vision of the draft joint programme of work is “a world in which the global community sustains biological and cultural diversity for present and future generations.” Its mission is to “strengthen the linkages between biological and cultural diversity initiatives, and enhance synergies between interlinked provisions of conventions and programmes dealing with biological and cultural diversity at relevant scales.”10

The draft joint programme of work specifically aims to not only contribute to further building the knowledge base about biological and cultural diversity and a framework for addressing the links therein, but also to help build bridges between the legal instruments of the CBD and UNESCO that are concerned with biological and cultural diversity and to “mainstream considerations of the interdependence between biological and cultural diversity” within the two organizations and at national and sub-national levels. To accomplish these goals, it calls for awareness-raising, education, and an extensive set of actions. Significantly, the implementation of the draft joint programme of work calls for the participation of all relevant actors, including Indigenous peoples, local communities, minorities, the scientific community, and civil society.

It remains to be seen whether this programme of work will be adopted at the upcoming CBD COP 10 and, if so, how effectively Figure 1. Policy-makers and practitioners alike are it will be implemented. While the development of the draft taking biocultural diversity conservation into their own programme saw limited input from these various actors during the hands. © Cristina Mittermeier Montreal conference, it is critical for the process of adoption of the programme at the COP and, if adopted, of the programme implementation itself to be as inclusive of the relevant actors as the draft text envisions. In principle, the draft joint programme of work represents an important institutional step forward, particularly insofar as it stresses the relevance of mainstreaming biocultural diversity at national and sub-national levels. If this “mainstreaming” will include the promotion of binding national policies that support and sustain the links between biological and cultural diversity, this will represent a fundamental arena for concretely advancing the biocultural agenda and ensuring the implementation of a biocultural approach to conservation of diversity in nature and culture. the 4th World Conservation Congress, dated April (no date), 2009. 9 Marton-Lefèvre, J., 2010. “Biodiversity is our life”. Science, 327(5970): 1179. 10 At the time of press, the draft joint programme of work is a draft document of the Secretariat of the �C�B�D�� for internal circulation only. By the time of the 10th Conference of the Parties in October, the document should be available. Secretariat of the CBD, 2010. “Meeting Documents: International Conference on Biological and Cultural Diversity”. Last accessed August 30, 2010, at: http://www.cbd.int/doc/?meeting=ICBCD.

76 Exploring the Right to Diversity in Conservation Law, Policy, and Practice

For the time being, it is apparent that advances in mainstreaming biocultural diversity in policy have so far been greater in the realm of statements of principle than at the level of implementation. This is not to underestimate these advances, as new ideas always take time to break through established ways of thinking; it is not unusual for this process to take several decades. It is unquestionably significant to see the importance of the links Mainstreaming biocultural between biological and cultural diversity affirmed in the programmes of work of major organizations such as IUCN, the CBD, UNEP, and UNESCO and to witness the possible diversity in policy has so far emergence of joint programmes of work on biocultural diversity. This does indicate been greater in statements progress over past policies of conservation organizations that were strictly limited to of principle than at the biodiversity and ecosystems, while issues of cultural (including linguistic) diversity were left to cultural institutions and advocacy groups; the latter also did not generally consider level of implementation. biodiversity issues as linked to the protection and promotion of cultural and linguistic diversity.

However, existing intellectual and institutional frameworks pose barriers to greater and more concrete progress towards adopting a biocultural perspective in policy and practice. Some conservation organizations are not yet wholly sensitive to people-centered conservation. This presents obstacles to the implementation of an integrative approach that incorporates an understanding of cultural dynamics, as well as the full and equal participation of Indigenous peoples and local communities in conservation decisions that affect them. As yet, there is even greater reluctance to accept the idea of Indigenous peoples and local communities as stewards of the biodiversity and ecosystems of their territories. In turn, cultural institutions have tended to remain rather insular, instead of seeking meaningful connections and collaborations with conservation organizations. Funding limitations preventing more integrative work are also reason for organizations in the respective realms of nature and culture not to “stray” into the others’ institutional territory. Finally, policy-makers (especially at the national level) tend not to act on an issue unless there is a groundswell of support for it.

It is arguably critical for advocates of biocultural diversity to continue to rise to the challenge and strive for concrete steps forward at the international and national levels that can, in turn, support and be influenced by local initiatives for biocultural diversity conservation. Recent developments in international policy indicate that this positive feedback loop has been set in motion. At the beginning of the third decade since the Declaration of Belém, education is one of the key aspects of affirming the multiplicity of values and roles that a biocultural perspective can play. Creating a groundswell of support for biocultural diversity involves in-depth work to educate the public, professionals, policy-makers, and funders about the value of biocultural diversity as the “true web of life” and that sustaining life on Figure 2. Rarámuri of the Sierra Tarahumara, Mexico. © David Rapport earth means sustaining biocultural diversity.

Luisa Maffi ([email protected]), PhD, is a linguist and anthropologist and one of the originators of the field of biocultural diversity. She is co-founder and Director of the international NGO Terralingua.

77 Policy Matters 17, 2010