48933796 Envi Partnerships for Success in Protected Areas

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Partnerships for Success in Protected Areas: The Public Interest andLocal Community Rights to Prior Informed Consent (PIC)

I. INTRODUCTION

The protection of biodiversity by conservation organizations and governments increasingly centers on prohibiting or strictly regulating

human activities within designated "protected areas."1 Moreover, there is growing awareness of the need to expand the size of protected

areas.2 Often initiated by non-governmental or quasi-governmental organizations, the establishment of protected areas is facilitated and

approved by governments pursuant to their authority as sovereigns and ostensibly undertaken in the "public interest."

In developing countries, most highly biodiverse areas are inhabited by indigenous peoples and other local communities with strong

cultural and physical ties to natural resources. These populations are typically the most impacted by the establishment of protected

areas.3 Rarely, however, do any local people, whether or not indigenous, participate to any significant degree in decisions guiding the

design, establishment, and implementation of protected areas.

The failure to involve indigenous peoples and other local groups in state-sanctioned efforts related to biodiversity conservation raises

several concerns. Most important is the impact on human rights that are central to indigenous peoples and other local communities with

significant relationships to natural resources. Indigenous peoples' lack of full and informed involvement in decisionmaking processes

decreases significantly the likelihood that they will continue to have access to resources that are vital to their culture, livelihoods, and

security. Additionally, indigenous peoples' lack of involvement considerably diminishes the likelihood that their contribution to

protecting biodiversity will be recognized, supported, and fully utilized. This, in turn, means that the biodiversity objectives motivating

the establishment of protected areas will less likely be met.

What are the rights of indigenous peoples and other local communities to participate in decisions regarding lands and other natural

resources they use or occupy? How do these legal rights relate, in practice, to the rights of states? What are the roles and responsibilities

of NGOs in satisfying community rights? What can states, NGOs, and local communities do to implement these rights?

In recent times, many answers to the foregoing questions have revolved around the concept of "Prior Informed Consent" (PIC), whether

PIC is a legal right held by indigenous peoples and other local communities, and how PIC can be implemented. While the definition of

PIC varies by context, it generally is described as a consultative process whereby potentially affected communities engage in an open

and informed dialogue with outsiders interested in using areas occupied or traditionally used by the communities at issue.4 These

discussions should occur prior to, and continue throughout, the time the activity is conducted and communities have the right to give or

withhold consent at decision-making points during the project cycle.5 At no time should consent be coerced or anything other than

voluntary.

This Article will examine how the rights of indigenous peoples and other local communities to PIC relate to the efforts of states and non-

state actors to establish protected areas, as well as offer insights into, and recommendations for, how PIC can be implemented to secure

human rights and assist in achieving conservation objectives. More specifically, Section II of the Article will examine how the rights of

indigenous peoples and other local communities to manage natural resources, particularly their rights to PIC, relate legally and in

practice to the rights of states to manage natural resources. Section III will describe the role of non-state actors in the management of

natural resources and, in particular, in the establishment of protected areas. It will consider their responsibilities and review current

efforts to satisfy these responsibilities. Section IV will articulate how recognition and implementation of the rights of indigenous peoples

and other local communities to PIC can enhance the effectiveness of current approaches to establishing protected areas, especially with

respect to the "co-management" approach. Finally, Section V will offer recommendations for implementing PIC in the protected areas

context.

II. RIGHTS TO MANAGE NATURAL RESOURCES

This Section of the Article will examine: (1) the rights of indigenous peoples and other local communities to manage natural resources,

with a focus on their rights to PIC; (2) the right of states to manage natural resources; and (3) how the rights of communities relate to the

rights of states.


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A. RIGHTS OF INDIGENOUS PEOPLES AND OTHER LOCAL COMMUNITIES TO PARTICIPATE IN NATURAL RESOURCES

MANAGEMENT

Several international norms directly or indirectly recognize and support the relationship of indigenous peoples and other local

communities to land they use and occupy. Among the most significant of these include the following interrelated human rights,

articulated in various international treaties: the right to property; the right to culture; the right to be free from racial discrimination; and

the right to self-determination.6 As elaborated below, official interpretations indicate that effectuation of the right to property, the right to

culture, and the right to be free from racial discrimination require recognition and implementation of the rights of indigenous peoples and

other local communities to PIC.

Although international law largely ignores the rights and aspirations of rural constituencies in the Global South, indigenous peoples have

received much more attention than other local communities that have long resided on and used natural resources in specific locales.

Perhaps foremost among the reasons for this is that, by definition, indigenous peoples have resided in ancestral territories for longer

periods, for generations that date back even before the establishment of colonial regimes. Many indigenous peoples have also been

subjected to unique forms of oppression and discrimination by dominant groups who largely control regional and national laws and

institutions.

Notwithstanding these hardships and injustices, rights unique to indigenous peoples under international law provide greater support for

the recognition of their right to prior informed consent. The right of indigenous peoples and tribal communities to PIC before

resettlement is recognized explicitly in the Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries

(ILO 169).7

The Convention on Biological Diversity (CBD) recognizes the significance of the relationship of both indigenous peoples and other local

communities to the resources they use or occupy. The CBD embraces the need for approval of indigenous peoples and other local

communities in the contexts of (1) management of existing, and the establishment and management of new, protected areas; (2) use of

their traditional knowledge; and (3) environmental and social impact assessments.8

Parties to the CBD should promote "[f]ull and effective participation by 2008, of indigenous and local communities, in full respect of

their rights . . . consistent with . . . applicable international obligations" in the management of existing, and the establishment and

management of new, protected areas.9

Moreover, many non-binding international instruments address the significance of this relationship and the need for participation of

indigenous peoples and other local communities in decision-making related to resources. These instruments have been the subject of

much attention and activity by international institutions, such as the United Nations, Organization of American States (OAS), and the

World Bank Group, as well as indigenous organizations and other interest groups.10 In support of these international norms, many

countries' domestic laws recognize and secure this relationship.11 This evidence in support of prior informed consent of indigenous

peoples and other local communities suggests that PIC is not only central to enforce key rights, but is also emerging as a norm of

customary international law.

Finally, similar to community-based property rights, prior informed consent of communities can be viewed as a human right that derives

its authority from and is recognized not only by international law, but also natural law concepts; the existence of the rights of indigenous

peoples and other local communities to prior informed consent is not necessarily dependent on governments or any assumption of state

creation, grant or recognition.12

1. The Rights to Property and Culture

The rights to property and culture are directly rooted in the relationships of indigenous peoples and other local communities to the

natural resources they use and occupy. These rights have most often been interpreted by official bodies as requiring the consent of

communities or their effective participation in decision making.

The right to property is enshrined in numerous international and regional instruments, including the Universal Declaration of Human

Rights,13 the American Convention on Human Rights,14 the American Declaration of Human Rights,15 the African Charter on Human

and Peoples' Rights,16 the European Convention on Human Rights,17 and the U.N. Draft Declaration on the Rights of Indigenous

Peoples.18


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The Inter-American Human Rights System has been particularly explicit about the significance of the right to property for indigenous

peoples and in describing requirements for effectuating this right. In interpreting the right to property as articulated in the American

Convention on Human Rights, the Inter-American Court found in Mayagna (Sumo)Awas Tingni Community v. Nicaragua:

Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous

people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and

their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a

material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.19

Of particular note was the finding that, given the significance of this relationship, indigenous peoples' customary law is adequate to

support the finding of the existence of a property right even in the absence of state recognition of that right.20

More recently, the Inter-American Court in Moiwana Village v. Suriname recognized the significance of the right to property and PIC

for communities that are not indigenous to a given area, but have established significant physical, spiritual, and cultural ties to the

land.21

In this case, the Inter-American Court found that the Moiwana community members, N'djuka Maroons,

possess an 'all-encompassing relationship' to their traditional lands, and their concept of ownership regarding that territory is not centered

on the individual, but rather on the community as a whole. Thus, this Court's holding with regard to indigenous communities and their

communal rights to property under Article 21 of the Convention must also apply to the tribal Moiwana community members: their

traditional occupancy of Moiwana Village and its surrounding lands-which has been recognized and respected by neighboring N'djuka

clans and indigenous communities over the years ... -should suffice to obtain state recognition of their ownership. The precise boundaries

of that territory, however, may only be determined after due consultation with said neighboring communities.22

In the Moiwana case, the Inter-American Court explicitly recognized that local communities were entitled to prior informed consent. It

held that the state must adopt legislative, administrative, and other measures necessary to secure the property rights of the members of

the Moiwana community to the traditional territories from which they were expelled and enable the members' use and enjoyment of those

territories.23 These measures must include the creation of an effective mechanism for the delimitation, demarcation, and titling of their

traditional territories. It added that Suriname shall "take these measures with the participation and informed consent of the victims as

expressed through their representatives, the members of the other Cottica N'djuka villages and the neighboring indigenous communities,

including the community of Alfonsdorp"24 and,

[u]ntil the Moiwana community members' right to property with respect to their traditional territories is secured, Suriname shall refrain

from actions-either of State agents or third parties acting with State acquiescence or tolerance-that would affect the existence, value, use

or enjoyment of the property located in the geographical area where the Moiwana community members traditionally lived until the

events of November 29, 1986.25

These pronouncements are consistent with previous findings of the Court and decisions of the Inter-American Commission on Human

Rights relating to rights of indigenous peoples. The Inter-American Commission has noted, in response to development activities

impacting indigenous peoples, that the failure of the state to ensure that consent was obtained violated indigenous peoples' right to

property.26 Additionally, the Inter-American Court has held that securing the right to property requires the delimitation, demarcation,

and titling of the territory belonging to the community.27

The findings in this case suggest that, in the context of the right to property, the nature and context of specific rights to PIC varies,

particularly in regards to local communities that are not likely to be considered indigenous but nevertheless have long established

relationships to natural resources in a particular locale. Essentially, more established, developed, and longer relationships to natural

resources by non-indigenous communities, often including customary laws and collective arrangements, result in these communities

possessing clearer rights to property, and, therefore, to prior informed consent.28

The right to culture is enshrined in the International Covenant on Economic, Cultural and Social Rights (ICESCR) and the International

Covenant on Civil and Political Rights (ICCPR).29 The ICCPR mandates, for example:


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[I]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the

right, in community with the other members of their own group, to enjoy their own culture, to profess and practise their own religion, or

to use their own language.30

As noted by the Human Rights Committee, established to monitor implementation of the ICCPR:

[C]ulture manifests itself in many forms. These can include a particular way of life associated with the use of land resources, especially

in the case of indigenous peoples.... The enjoyment of those rights may require positive legal measures of protection and measures to

ensure the effective participation of members of minority communities in decisions which effect them.31

The right to property and the right to culture, are not absolute. For example, in regards to property, the holder of a right has a duty to be

accommodating towards other interests. The state, in particular, has a right to expropriate property, but only if it is "in the public

interest," "general interest," or "social interest"-obligations listed in various international instruments.32

Interpretations of the significance of the right to property and other rights for indigenous peoples and other local communities do not

directly address how the right to prior informed consent relates, in practice, to the right of the state to act in the public interest. The case

involving the Maya Indigenous communities in Belize, heard by the Inter-American Commission on Human Rights, involved, at least

partially, land that Belize designated "reservation" land pursuant to a national law that recognizes Belize's authority to expropriate land in

the public interest. Despite this action by Belize, the Commission determined that indigenous peoples occupying the area continued to

have rights to the land and were entitled to prior informed consent for its use. The Commission in this case did not question that the statehad the right to expropriate (or otherwise use) natural resources in the public interest. The Commission suggested by its actions,

however, that the state's right to act in this regard was not unqualified; the state was obligated to consider and, in some circumstances, to

defer action to establish a protected area in response to the relationship of indigenous peoples to the land and their right to PIC.33

It is clear that the right to property and the right to culture cannot, in all circumstances, prevent the state from acting to expropriate or

otherwise manage land in the public interest. However, as elaborated in Section II(C), securing these rights for indigenous peoples and

other local communities with a significant relationship to natural resources requires, at the very least, implementation of safeguards for

the rights and concerns of indigenous peoples and other local communities with significant ties to natural resources.34

2. The Right to be Free from Discrimination

International law prohibits all forms of racial discrimination. Discrimination against indigenous peoples that impacts natural resources

traditionally used and occupied by them has been of specific concern.35 For example, the Committee on the Elimination of RacialDiscrimination (CERD), which interprets the Convention on the Elimination of All Forms of Racial Discrimination, highlighted in its

Recommendation XXIII that indigenous peoples' loss of land and resources to "colonists, commercial companies, and State enterprises"

has created, and is still creating, discrimination against indigenous peoples, depriving them of their human rights and fundamental

freedoms.36 As noted by legal expert Claudio Grossman, "one of the greatest manifestations of this [racial] discrimination has been the

lack of effective state guarantees for the traditional forms of use and possession of lands and resources belonging to indigenous

groups."37

The Convention on the Elimination of All Forms of Racial Discrimination highlights the significance of this right in supporting the

enjoyment of other rights, such as the right to own property, the right to equal participation in cultural activities, and the right to freedom

of movement and residence within the border of the state.38

The CERD stated that addressing discrimination against indigenous peoples requires recognition and implementation of their right to

prior informed consent. It notes that states should "ensure that members of indigenous peoples have equal rights in respect of effective

participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent."39

It calls on states to "recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands,

territories and resources."40 In applying this recommendation to subsequent evaluations of periodic reports submitted by Parties to the

Convention, the CERD has noted that several countries, including Botswana, Ecuador, Bolivia, Ethiopia, and Australia, violated the right

to be free from racial discrimination by allowing activities by the government and private companies to occur on indigenous lands

without the prior informed consent of indigenous peoples.41


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The Botswana observation is particularly relevant to actions to establish protected areas. The CERD observed that the Basarwa/San

peoples "are reported to suffer from cultural, social, economic and political exclusion, do not enjoy group rights to land, and do not

participate in the House of Chiefs."42 In this context, the dispossession of the Basarwa/San people from their land and their resettlement

outside the Central Kalahari Game Reserve did not respect their political, economical, social, and cultural rights. Noting

Recommendation XXIII and the need for prior informed consent of indigenous peoples prior to decisions relating to their interests, the

CERD recommended that negotiations with the Basarwa/San and non-governmental organizations be resumed and that a rights-based

approach to development be adopted.43

In its concluding observations on Ethiopia, the CERD similarly highlighted the importance of prior informed consent in the context of

establishment of protected areas, stating, "[i]n the light of its General Recommendation 23 (1997) on indigenous people, the Committee

recommends that the State party provide ... information on the effective participation of indigenous tribes in the decisions relating to their

rights and interests, including informed consent in the establishment of national parks... ."44

Similarly, when expressing concern about the establishment of a protected area on the ancestral forestland of the Veddas, the indigenous

people of Sri Lanka, the CERD highlighted Recommendation XXIII and its emphasis on the need for "States parties to recognize and

protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources."45

These evaluations of periodic reports emphasize the need for "special measures" pursuant to the Convention on the Elimination of all

Forms of Racial Discrimination.46 As noted in the 1997 IACHR report of the human rights situation in Ecuador,

Within international law generally, and inter-American law specifically, special protections for indigenous peoples may be required for

them to exercise their rights fully and equally with the rest of the population. Additionally, special protections for indigenous peoples

may be required to ensure their physical and cultural survival-a right protected in a range of international instruments and conventions.47

In the review of Botswana's human rights report, the CERD recommended "that the State party identify further the specific needs of

persons belonging to minorities and indigenous peoples and adopt special measures to enhance equal enjoyment of human rights among

the various sectors."48

3. The Right to Self-Determination

Many indigenous peoples and advocates on their behalf believe that the right to self-determination provides an essential legal basis for

the right to control their traditionally owned or otherwise occupied and used lands, territories, and resources. This right is implicitly and

explicitly articulated in several treaties and other international instruments, including the ICCPR and the ICESCR, both of which employthe following language:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their

economic, social, and cultural development.

All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out

of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be

deprived of its own means of subsistence.

The State Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust

Territories, shall promote the realization of the right of self-determination, and shall respect that right in conformity with the provisions

of the Charter of the United Nations.49

A few states and some legal experts do not agree that the term "peoples" in this context applies to indigenous peoples.50 Among most

legal experts and states, however, the primary disagreement centers not on whether this term applies to indigenous peoples, but on

precisely what the right to self-determination means for indigenous peoples.51

For many indigenous peoples, the central focus of the right to self-determination is the right to control access to natural resources. Does

the right to self-determination, as defined by the current status of international law, support an absolute right by indigenous peoples to

allow-as well as prohibit-access to natural resources?


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Some authorities on indigenous issues argue affirmatively that the right is absolute. One such authority argues that the phrase "in no

case" in the final sentence in paragraph 2 of Article 1 indicates that the right to control access to natural resources is an absolute right.52

Other experts recognize that calls for equating self-determination with "autonomy," "self-government," and control over natural

resources often occur with an understanding that the relationship of indigenous peoples with the state envisions the participation of the

state in decisions relating to the natural resources.53 Such relationships with the state can vary significantly. One expert observes, "[t]he

kinds of autonomy regimes which indigenous peoples operate or aspire to vary enormously, influenced in part by the geographical and

demographic setting."54

The U.N. Draft Declaration on the Rights of Indigenous Peoples, adopted by the U.N. Human Rights Council and forwarded to the U.N.

General Assembly, which recently decided to delay a vote on it, is probably the best articulation to date of what most states are willing to

recognize with regards to indigenous peoples' self-determination and the right to PIC.55

Two articles of the U.N. Draft Declaration explicitly reference self-determination. Article 3 recognizes that "[i]ndigenous peoples have

the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social,

and cultural development."56 Article 4 further elaborates on this right, noting that, "[i]ndigenous peoples, in exercising their right to self-

determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and

means for financing their autonomous functions."57 Subsequent articles, however, provide additional explanation.

Six articles in the Declaration explicitly reference PIC and others clearly relate to PIC. Only twice does the language referencing PIC

clearly prohibit action without consent of the indigenous peoples at issue. Article 10 states, "[n]o relocation shall take place without the

free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation. .. ."58 Article

29 requires, "[s]tates shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place ... without

their free, prior and informed consent."59

Otherwise, the language of the Declaration suggests a strong presumption in favor of indigenous peoples' right to control natural

resources, including clear recognition of their right to consent to an activity. However, the language does not clearly embrace the right to

prevent an activity by withholding consent. Article 19, for example, provides, "[s]tates shall consult and cooperate in good faith with the

indigenous peoples concerned... in order to obtain their free, prior and informed consent before adopting and implementing ... measures

that may affect them."60 Article 32 includes the same language relating to obtaining free, prior and informed consent, but adds "prior to

the approval of any project affecting their lands or territories and other resources."61 The language requires the state to act in good faith

to obtain consent, but not as clearly as in Articles 10 and 29, and prohibits the state from acting when good faith efforts to obtain consent

are not successful. Finally, other references to PIC seek primarily to ensure that redress is provided in the absence of PIC.62

Other articles do not reference PIC explicitly, but instead include language that has been interpreted as requiring PIC. Article 26, which

explicitly addresses the right of indigenous peoples to natural resources. The pertinent language includes, "[i]ndigenous peoples have the

rights to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired," and

"[i]ndigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of

traditional ownership or other traditional occupation or use ... States shall give legal recognition and protection to these lands, territories

and resources."63 As noted above, language recognizing the right to property in the American Convention on Human Rights and the

American Declaration of the Rights and Duties of Man has been interpreted as requiring that the state ensure that prior informed consent

is obtained from indigenous peoples and other local communities with significant ties to natural resources before any activity that may

adversely impact their ability to enjoy these resources.64 The Convention and Declaration, however, both recognize a right of the state to

act in the public interest.65

To what extent does the Declaration embrace an absolute right to PIC? Although Articles 10 and 29 clearly prohibit action without

consent, and contain no language qualifying the right to PIC, language in the final Article, Article 46, can be interpreted as providing

opportunities for state action in the public interest under very limited conditions. This Article states:

The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law, in accordance

with human rights obligations. Any such limitation shall be non-discriminatory and strictly necessary solely for the purpose of securing

due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a

democratic society.66


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Such an understanding of the relationship of the right of indigenous peoples to self-determination and PIC, to a state's right to permanent

sovereignty over natural resources is consistent with assessments of international law by some international legal experts. Shrijver, for

example, explains that the "rights of indigenous peoples to the natural resources of their lands are at first glance similar to those of States

(to be) derived from the principle of permanent sovereignty. . . . but the decisive authority as regards use and exploitation of indigenous

lands and their natural resources ultimately rests with the State."67 He cautions, however, that "[s]tates are under an obligation to

exercise permanent sovereignty on behalf and in the interests of their (indigenous) peoples" and that expropriations by states in the

public interest often fail to address, adequately, the rights of indigenous peoples.68

B. RIGHTS OF STATES AS SOVEREIGNS TO MANAGE NATURAL RESOURCES

Most international legal experts agree that international human rights norms do not provide indigenous and other local communities with

an absolute right to say "no" in every context to proposed activities that might impact their land or other natural resources. At the same

time, the right of states to permanent sovereignty over natural resources includes the "duty to respect the rights and interests of

indigenous peoples,"69 as well as a duty to satisfy other conditions of international law.

International law, as well as many national laws, recognizes that a state has the right, pursuant to its authority as a sovereign entity, to

manage natural resources within the state.70 However, a state's authority to manage natural resources is not without bounds. The exercise

of this right must accord with several requirements: the proposed activity must be in the public interest; just compensation must be paid;

and making public interest determinations and meeting just compensation requirements must include equal access to, and participation

in, government processes and judicial review.71 As noted above, in most instruments recognizing a right to property and a right to

culture, a concomitant right of the government to manage the property "in the public interest," or "general interest," or "social interest" is

recognized.72

The state's exercise of this sovereign right to manage natural resources in the public interest occurs within the context of, and must be

responsive to, public international law more generally. As noted by one expert on international law, "[i]n practice, modern sovereigns

have never had total license or absolute authority over everything. . . . 'Sovereignty is a legal status within but not above public

international law. . . . As a juridical status protected by international law, it is embedded within the normative order of this law.'"73

Because the exercise of this right must be responsive to public international law, within which the rights of states as sovereigns are

"embedded," it is reasonable to conclude that PIC and associated rights, including the rights to be free from racial discrimination, to self-

determination, to property, to culture, as well as other rights, relate to and must necessarily influence how any state manages natural

resources in the public interest.

C. RELATIONSHIP OF THE RIGHTS OF COMMUNITIES TO THE RIGHTS OF STATES

1. The Rights of States in Relation to the Rights of Communities to PIC

As noted earlier, the strong relationship of indigenous peoples and some other local communities to natural resources is a key reason why

international law compels recognition and implementation of indigenous peoples and other local community rights to PIC. Satisfaction of

these rights must occur prior to any official taking of natural resources that a qualified community uses or occupies. Additionally,

international law recognizes the need for special measures to address past and current barriers to full participation of local communities

in processes that impact them.

International law also recognizes the right of states to act in the public interest under certain conditions. No official interpretation of

international law exists, however, to describe specifically how the rights to PIC of indigenous peoples' and other local communities relate

legally, or in practice, to the rights of states to manage natural resources in the public interest. But several factors that influence thisrelationship can be gleaned from interpretations of international law previously described in this Article. These include the following:

* Are there indigenous peoples or other local communities with significant physical, spiritual, and cultural ties to the natural resources at

issue?

* Are the potential impacts significant? For example, will communities need to resettle? Will cultural values be impacted? Will

livelihoods be impacted?


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* Are there continued barriers to full participation of indigenous peoples and other local communities in the political process or decision-

making?

* To what extent does the national framework of laws recognize the rights of indigenous peoples and other local communities to

participate in decisions regarding natural resources they use or occupy?

One conclusion that can be drawn from international law cases and other interpretations of international law is that good faith efforts to

obtain PIC with a view to reaching mutual agreement are required when indigenous peoples and other local communities with significant

ties to natural resources are involved, when impacts to these communities may be significant, and when discriminatory barriers exist to

full recognition of their rights. Furthermore, these efforts are required before a state seeks to expropriate or otherwise assume

management authority in the public interest over any area with significant ties to a local community. In the course of official processes

for determining whether an envisioned action is in the public interest, the need to obtain PIC from communities may become evident, as

will be discussed later.

The requirement to seek PIC from local communities prior to the establishment of protected areas has been embraced by some states,

including the Philippines. For example, despite recognition in national law of the right of the state to expropriate land to establish

protected areas in the public interest, the Philippines requires that no eviction or resettlement of indigenous communities shall occur

during the establishment of protected areas without the consultation and consent of potentially affected local communities. Additionally,

all rules and regulations governing ancestral lands within protected areas, "whether adversely affecting said communities or not, shall be

subjected to notice and hearing to be participated in by members of the concerned indigenous community."74

In the context of establishing protected areas, some state-level efforts to secure and sustain legal rights to PIC are likely to involve

national security issues. To be successful, they may ultimately include a requirement for non-state actors to obtain some type of sanction

or "social license" to move forward.75

2. Local Property Rights and State Action in the Public Interest

International law recognizes the legal authority of states to expropriate property in the "public interest." At the same time, international

law constrains this authority in three ways. For a state to legally expropriate property the following requirements must be met: (1) any

expropriation must be in the "public interest"; (2) just compensation must be paid; and (3) official decision-making processes must be

non-discriminatory and provide equal access to and participation in government processes.76

Many, if not most, states have enshrined these or similar requirements in national law, requiring that activities likely to interfere with theright to property must be in the public interest; on payment of just compensation; and in accordance with due process of law, access to

fundamental justice, or similar requirements.77

The Draft Declaration on the Rights of Indigenous Peoples echoes these requirements in the context of actions that impact indigenous

peoples' rights. Article 46 of the Declaration indicates that state action must be non-discriminatory and, as elaborated below, further

defines the "public interest" requirement.78

a. The "Public Interest" Requirement

As already noted, most states have laws recognizing a state's right to expropriate or otherwise manage natural resources in the "public,"

"social," or "national" interest. More specifically, these laws provide that when a proposed activity is in the public interest, individual or

community rights (such as the right to property) can be limited by the state's right to expropriate or otherwise exercise its authority to

manage natural resources. But the proposed measure or activity must in fact be in the public interest; mere assertions that an activity is inthe public interest are legally inadequate.79

The public interest requirement has a long-standing history in international law. For example, Paragraph Four of the 1962 United Nations

General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources declares, "[n]ationalization, expropriation or

requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding

purely individual or private interests, both domestic and foreign."80

A review of cases decided by international human rights bodies, as well as state courts, reveals two general criteria for evaluating

whether a proposed measure is in the "public interest": (1) the activity must have a legitimate aim; and (2) the interference must strike a


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fair balance between the public interest and the interests and rights of those impacted, ensuring a "reasonable relationship of

proportionality" between the activity and the impacted rights.81

i. Activity Type Must Have a Legitimate Aim

To satisfy the first criteria, the activity must serve a legitimate objective that is actually in the public interest. Establishing that a

proposed activity has a legitimate public interest aim is a relatively easy task. The term "public interest" is defined broadly by national

and sub-national laws, and both public activities and private activities that promote a public purpose have been considered to be

legitimately in the "public interest." Additionally, according to international law and state-court interpretations of national law, national

determinations that a given activity has a legitimate public interest objective generally enjoy a "wide margin of appreciation."

Some states permit almost any activity under the broad requirement of "public interest."82 Others define "public interest" to mean a

specific list of activities, although these too are often broadly interpreted. For example, Kenya's constitution allows property rights to be

taken if "necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning or

the development or utilization of property so as to promote the public benefit."83 Other states provide equally broad lists.84

Zimbabwe's constitution permits taking of "[a]ny land, where the acquisition is reasonably necessary in the interest of defense, public

safety, public order, public morality, public health, town and country planning or the utilization of that or any other property for a

purpose beneficial to the public generally or to any section of the public."85 In addition, Zimbabwe permits taking of land, provided that:

the acquisition is reasonably necessary for the utilization of that or any other land-(A) for settlement for agricultural or other purposes; or

(B) for purposes of land reorganization, forestry, environmental conservation, or the utilization of wild life or other natural resources; or

(C) for the relocation of persons dispossessed in consequence of the utilisation of land for a purpose referred to in subparagraph A or

B.86

The State Supreme Court of Zimbabwe has held that, "[i]n reviewing whether a government ministry's pension scheme was in the 'public

interest'. . .. National authorities are, in principle, better placed than the judiciary to appreciate what is for the public benefit given their

superior knowledge and experience of society and its needs and familiarity with local conditions." Additionally, "[t]he courts should

allow a wide margin of appreciation for the government's assessment."87

The Canadian Constitution recognizes that compelling and substantial legislative objectives can sometimes justify infringement of

aboriginal rights.88 As noted in Delgamuukw, these objectives include: "the development of agriculture, forestry, mining and

hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangeredspecies, and the building of infrastructure and the settlement of foreign populations to support those aims."89

The United States Supreme Court has interpreted "public use" to include public safety, public health, facilitation of transportation, supply

of water, public parks, historic interests, and promotion of beautification.90 For example, in Berman v. Parker, the United States

Supreme Court held that legislative declarations of the public interest are "well-nigh conclusive," and thus receive deferential

treatment.91 In Hawaii Housing Authority v. Midkiff, the Court held that it "will not substitute its judgment for a legislature's judgment

as to what constitutes 'public use' unless the use is palpably without reasonable foundation."92 More recently, in Kelo v. City of New

London, the Court broadened its interpretation of "public use" to use of private land by a private entity for the public purpose of

economic development.93

The European Court of Human Rights recognizes that the transfer of property rights from one individual to another may constitute a

legitimate means for promoting the public interest. It has observed that this finding is consistent with understandings in other

"democratic countries."94 In Mellacher and Others v. Austria, the European Court held that,

[i]n order to implement such policies, the legislature must have a wide margin of appreciation both with regard to the existence of a

problem of public concern warranting measures of control and as to the choice of the detailed rules for the implementation of such

measures. The Court will respect the legislature's judgment as to what is in the general interest unless that judgment is manifestly without

reasonable foundation.95

In most nations, the establishment of protected areas is a type of activity that would be considered to have a legitimate public interest

aim. A second level of analysis, however, is needed to establish that any specific proposed activity has a legitimate public interest aim in


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its own particular context. Government determinations in this regard typically enjoy qualified deference. Presumably, if a government is

challenged with evidence that the proposed activity does not have a legitimate aim, the government would need to provide evidence to

refute this challenge. As described in the following section, when, and if, it has been determined that the proposed activity has a

legitimate public interest aim, the public interest objective must be balanced against the rights of those potentially impacted by the

activity.

ii. The Impact of the Proposed Activity Must be Proportional to Other Interests and Rights of Those Impacts

Legal process often takes into account the proportional impacts of proposed measures or actions. Regarding human rights, the

"proportionality" requirement has been examined most closely by the European Court of Human Rights. European Court of Human

Rights cases interpreting the right to property draw from and support decisions from the broader body of European case law expounding

on the "proportionality principle," a general principle of European community law.

In interpreting Article 1, Protocol 1 to the European Convention on Human Rights, which articulates the Right to Property, the Court has

promulgated several key decisions. The decisions art iculate a requirement that the state balance the severity of a prospective interference

with a legal right with the importance of the social need for action. This is necessary to ensure that any potential adverse impact is

"proportional" to the need for action.

One of the first European Court of Human Rights cases to examine proportionality in the context of an interpretation of Article 1 of

Protocol 1 is the Belgian Linguist case.96 It addressed the connection between property rights and the concomitant right of the state toexpropriate property in the public interest and supported the general need for a proportionality determination. The following language in

the case guides current interpretations by the Court: "The Convention . . . implies a just balance between the protection of the general

interest of the Community and the respect due to fundamental human rights while attaching particular importance to the latter."97

Although proportionality has not been codified, scholars examining this case law have concluded that "proportionality" is often

determined by consideration of three factors: suitability, necessity, and the absence of disproportionate impact.98 In the context of state

action that potentially impacts indigenous peoples, such a consideration is consistent with the recognition in the Draft Declaration on the

Rights of Indigenous Peoples that state expropriations must be strictly necessary and solely for the purpose of securing due recognition

and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.99

"Suitability" requires that a measure affecting a protected interest (for example, the right to property) be causally linked to the purpose

being pursued.100 If applied in the context of protected areas, the "suitability requirement" likely requires that proposed area activities be

reasonably likely to achieve biodiversity-protection and other related objectives.

"Necessity" requires that the proposed measure be indispensable to achieving the objective pursued.101 In the context of establishing a

protected area, this requirement suggests that if an alternative measure is likely to achieve the same biodiversity-protection goal in a

manner less restrictive to human rights, the proposed protected area activity may not be "necessary."

The third factor is an "absence of disproportionate impact." This requires that the disadvantages to which a contested measure gives rise

do not exceed its advantages, regardless of the existence of a less restrictive measure.102 Application of this requirement to protected

area activities means that even if a protected area is indispensable to achieving biodiversity protection objectives, the advantages of

establishing the protected area must outweigh the disadvantages resulting from impact to the rights and interests of local communities. If

these rights and interests are significant, the need for the protected area may not outweigh the countervailing need for protection of these

rights and interests.

In Sporrong and Lonnroth v. Sweden, the European Court of Human Rights eluded to the necessity requirement in embracing the idea

"that an expropriation permit must not be issued if the public purpose in question can be achieved in a different way; then this being

assessed, full weight must be given both to the interests of the individual and to the public interest."103

Other cases have elaborated on the need to avoid disproportionate impact. The Court in James v. United Kingdom, for example,

determined that while the public interest determination was not "manifestly unreasonable," "this does not settle the issues. . . . [T]here

must also be a 'reasonable relationship of proportionality between the means employed and the aim sought to be realised.'"104 In Jahn

and Others v. Germany, the Court considered "whether [a] public-interest aim was sufficiently weighty when it came to considering

whether the [state's] interference was proportionate."105 The Court ruled:


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An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interest of the

community and the requirements of the protection of the individual's fundamental rights. . . . In particular, there must be a reasonable

relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his

possessions.106

Several national and sub-national sources of law include these or similar factors in examining the relationship between a proposed

activity and a specified public interest objective. Kenya's Constitution provides one example. It defines criteria by which specific

activities are evaluated to determine whether they are in the public interest. Section 75(1) provides:

No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description

shall be compulsorily acquired, except where the following conditions are satisfied

(a) the taking of possession or acquisition is necessary in the interests of defence, public safety, public order, public morality, public

health, town and country planning or the development or utilization of property so as to promote the public benefit and the necessity

therefor is such as to afford reasonable justification for the causing of hardship that may result to any person having an interest in or right

over the property. . . .107

Similarly, prior to a taking of private property, the state of California requires a "resolution of necessity." This requirement mandates

government to assess necessity and impact. More specifically, the government must find and determine the following:

(1) The public interest and necessity require the proposed project;

(2) The proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least

private injury;

(3) The property described in the resolution is necessary for the proposed project; and

(4) That either the offer required by [California law] has been made to the owner or owners of record, or the offer has not been made

because the owner cannot be located with reasonable diligence.108

In Dolan v. City of Tigard, the U.S. Supreme Court held that there must be a "rough proportionality" between the projected impact of the

project and the required dedication.109 The Court held: "No precise mathematical calculation is required, but the city must make some

sort of individualized determination that the required dedication [of land for public use] is related both in nature and extent to the impact

of the proposed development."110

Recognizing the significance for indigenous peoples of this balancing of interests, states such as Canada and the Philippines explicitly

require that there be a balancing of interests, rights, and benefits before a "public interest" activity likely to impact indigenous peoples

can proceed.111 For example, the Canadian Supreme Court in Haida Nation v. British Columbia, interpreting the Constitution Act of

1982, determined that, "what is required is a process of balancing interests, of give and take" and "[t]he duty's fulfillment requires that

the Crown act with reference to the Aboriginal group's best interest in exercising discretionary control over the specific Aboriginal

interest at stake.112

Philippine national law relating to protected areas gives greater weight to the property rights of indigenous communities. It requires the

following:

Ancestral lands and customary rights and interests arising shall be accorded due recognition. The DENR [Department of Environment

and Natural Resources] shall prescribe rules and regulations to govern ancestral lands within protected areas: Provided, That the DENRshall have no power to evict indigenous communities from their present occupancy nor resettle them to another area without their

consent: Provided, however, that all rules and regulations, whether adversely affecting said communities or not, shall be subjected to

notice and hearing to be participated in by members of concerned indigenous community.113

As noted earlier, international and state courts generally show deference to government determinations that a given activity satisfies the

public interest test. This deference to government decision-making, however, is not absolute. Based on the facts of a given case,

deference does not preclude a court from finding that a proposed activity is not likely to achieve a specified public interest objective and,

therefore, should not be allowed.


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Clearly, involuntary relocation or otherwise constraining the activities of indigenous or other local communities to a given area is often

not the best approach for promoting biodiversity conservation objectives. Furthermore, the impact of such an approach is often severe-

resulting in loss of culture and traditional knowledge, livelihood, and perhaps the continued existence of a community.

Evaluating the necessity of the action, based on an assessment of factors, such as the causes of the loss of biodiversity and the

contributions of local communities to biodiversity protection, could reveal that the best approach to such protection is maintaining the

status quo. This would mean that indigenous peoples and other local communities continue to have recognized legal authority to manage

the area. They could decide to be informal partners with proponents of the protected area, co-managers of the area, or participate in

another arrangement.114

As an increasing number of scholars and field researchers have concluded, the causes of biodiversity loss are related less to internal

pressures, those brought by indigenous peoples and other local communities, and more to pressures exerted by external forces.115

Indeed, several experts have noted that high biodiversity in a given area often is related to occupancy and management of an area by

local people with a significant relationship to the surrounding resources.116 In many instances, indigenous peoples' ability to manage

resources actually bolsters biodiversity conservation.

The preservation of traditional knowledge, local culture, and land stewardship practices enhances biodiversity conservation and also

contributes to other "public interest" values, including cultural diversity, development of medicines, and tourism.117 Moreover, respect

for, and attention to, the needs of indigenous peoples and other local communities can enhance protection of national security-a primary

factor driving recognition in the Philippines of the rights of indigenous peoples and other local communities to prior informed consent

for resettlement activities, especially when related to the establishment of protected areas.118

If it is determined that establishing a protected area is, in fact, in the public interest, those impacted by a decision to proceed must be

compensated adequately for their losses.

b. Payment of Just Compensation Requirement

It is a widely accepted principle of international law that persons whose property is taken should be compensated.119 For instance,

Paragraph Four of the 1962 United Nations General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources

declares:

Nationalization, expropriation or requisit ioning shall be based on grounds or reasons of public utility, security or the national interest

which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall bepaid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty

and in accordance with international law.120

The requirement for just compensation relates closely to other requirements for state action that might interfere with property rights. In

the context of protected areas that may be established on lands used or occupied by indigenous peoples or other local communities, the

burden imposed by the taking is not likely to be merely financial, but also cultural, political, and environmental. Thus, in order to be just,

compensation to indigenous communities for expropriated territories and the natural resources they encompass should consider more

than market value; the state should consider close relationships to ancestral domains and their importance for the cultural, political, and

social well-being of local people.

According to the European Court of Human Rights, compensation is a key factor in the balancing of "public interests" with human rights.

In John and Others v. Germany, the Court considered "whether [a] public-interest aim was sufficiently weighty when it came to

considering whether the [state's] interference was proportionate." It found Germany's taking to be a disproportionate burden because the

applicants did not receive any compensation for the taking.121 The Court added that although "the lack of compensation does not of

itself and always make the State's taking of the applicants' property unlawful,"122 in this case, the applicants suffered a disproportionate

and excessive burden from the taking.

Similarly, South Africa's constitution guarantees that for a determination of just compensation, a balance must be struck between the

public interest and the interests of those affected by a taking. Article 25(3) of the constitution declares, "The amount of the compensation

and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the

interests of those affected, having regard to all relevant circumstances."123


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Language such as that cited above requires compensation to people other than those who have recognized titles to the expropriated

property. This will often be important for indigenous peoples and other local communities that are dependent on expropriated land, even

if they do not own it according to national land and natural resources laws. Despite decades of political independence, and even with the

presence of democratic institutions, recognized ownership is virtually impossible to obtain in some countries; in many places, national

land laws still emanate from colonial-era principles that severely limit access to formal property rights for indigenous peoples.124

Considering compensation in the context of indigenous peoples, the Supreme Court of Canada held, in Delgamuukw v. British

Columbia, that "lands held pursuant to aboriginal title have an inescapable economic component which suggests that compensation is

relevant to the question of justification as well. Fair compensation will ordinarily be required when aboriginal title is infringed."125

To ensure that compensation is proportional to the effects of the state's taking, compensation may not always be exclusively in the form

of money. To preserve the economic, cultural, political, and social rights of affected communities, the state may be obliged to provide

alternative sources of income, establish community services such as health centers and schools, construct infrastructure such as roads, or

ensure access to resources essential to that community's survival.126 The Burrup Peninsula Agreement in Australia, in which the state

acquired land from indigenous peoples for the construction of a heavy industry estate, illustrates an alternative compensation to money.

The Agreement provided displaced peoples with "land, cultural heritage and environmental protection, financial compensation,

residential and commercial lands, improved roads, housing, education, employment and training."127 Of course, laws and practices

relating to compensation vary among countries, as will treatment of indigenous peoples and other local communities with respect to

compensation. But just compensation and fair consideration of the concerns of and impacts on locally affected groups are required.

c. Official Decision-Making Processes are Adequate

Determinations of public interest and just compensation are useful and legitimate only to the extent the official processes and

mechanisms relied on ensure that the interests of potentially affected communities and individuals are seriously considered and factored

in to final decisions. Indeed, the deference provided by courts to legislative and other governmental findings of "public interest" is

premised on the idea that those potentially impacted by a proposed activity are effectively engaged in the decision-making process.

In practice, the interests, rights, and concerns of indigenous peoples and other local communities are often not represented or even

considered. The lack of effective engagement in official decision-making processes by these communities often results from

discrimination, indifference, or the failure of governments to provide meaningful opportunities for effective engagement in official

decisionmaking processes-factors that often are related.

When states seek to exercise their permanent sovereignty in the interest of the well-being of the people, as is their duty, they too often

fail to recognize that:

[I]n practice the inhabitants of a State are often not a homogenous community but may be composed of various peoples and minorities,

including indigenous peoples. This raises the issue of State control and development of natural resources as possibly being contrary to

the well-being of indigenous peoples within its territory.128

Such activities fail to recognize that states must "exercise permanent sovereignty on behalf and in the interests of their (indigenous)

peoples."129 Indigenous peoples' representatives have repeatedly raised concerns about the failure of states to respect indigenous

interests when states act in "the public interest."130

International law requires that the legislative, judicial, and administrative processes and mechanisms by which a state acts in the public

interest provide equal (non-discriminatory) opportunities to all to participate in government, as well as opportunities to pursue judicial

review of government activities that impact local communities' rights.131

Various approaches to participation of minorities in public processes have been described. Such approaches are examined in The Lund

Recommendations on the Effective Participation of National Minorities in Public Life, which were developed by a body of independent

experts examining the commitments of European States and have been described as an "authoritative interpretation of the relevant

international standards on political participation and minorities."132 These include approaches to facilitate effective participation in

official decision-making processes at national, regional, and local levels, as well as changes in voting systems, veto rights, and non-

territorial arrangements.133


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These approaches may be useful for facilitating the participation of indigenous peoples that are in the minority. However, because

indigenous peoples enjoy rights to which other minorities are not entitled, additional approaches may be necessary to secure the rights of

indigenous peoples.134

In describing the right to participation, one authority on minority participation in government noted:

For members of ethno-cultural minorities, the right of political participation means more than the right to seek to influence the outcome

of a process designed to aggregate individual preferences to find a decision acceptable to a majority of citizens. This is clear from the

'Lund Recommendations' on Effective Participation of National Minorities in Public Life (1999). Recommendation 1 provides:

participation of national minorities in public life is an essential component of a peaceful and democratic society. Experience in Europe

and elsewhere has shown that, in order to promote such participation, governments often need to establish specific arrangements for

national minorities. These Recommendations aim to facilitate the inclusion of minorities within the State and enable minorities to

maintain their own identity and characteristics, thereby promoting the good governance and integrity of the State.135

Highlighting obstacles to effective political participation, this authority notes:

Certain restrictions, although on the face of things objective and reasonable, can disproportionately affect the right of minorities to

political participation. For nomadic minorities residence requirements may cause difficulties. Other problematic criteria include

citizenship and language restrictions. Rights of political participation, unlike other human rights, are granted only to citizens. Where, as

in parts of the former Soviet Union, individuals are excluded from citizenship by the application of restrictive, ethnically based, criteriafor citizenship or the use of language tests, this has the effect of disenfranchising large sections of the permanent population who are

nevertheless subject to the adopted laws.136

Others have identified reasons why the right to vote may not provide an effective voice for indigenous peoples and other local

communities, especially in regards to official decisions for establishing protected areas.137 These reasons include (1) unfamiliarity with

a decision-making process, that is not like their own, (2) lack of effective means to participate, and (3) lack of choiceindigenous

identities may not be recognized in national politics and indigenous voters' only practical choice may be to join a mainstream political

party.

In the context of the establishment of protected areas, laws and policies that govern actions in the public interest-including laws that

identify types of activities in the public interest, define the rights of local communities to land and other natural resources they use or

occupy, and describe the processes and mechanisms for participation of these communities in official decisions concerning these natural

resources-must be developed in a non-discriminatory way and with opportunities for effective participation of affected communities at

all levels of government decision-making. Moreover, mechanisms must exist for review of public-interest related decisions, including

decisions related to the property rights of those who occupy and use natural resources and people who have used or occupied the area

under consideration for many generations.

A variety of approaches may be pursued to secure effective participation of indigenous peoples and other local communities in decision-

making processes concerning the establishment of areas designated for conservation purposes. Such approaches may include special

measures. As noted by the Committee on the Elimination of Racial Discrimination, these measures may be necessary to address

discriminatory practices.138

The Lund Recommendations emphasize the need for consultations with local communities-either on an ad-hoc basis or through formal

advisory or consultative bodies composed of members of these communities.139 The importance of effective consultation to public

interest determination processes is highlighted in the Canadian Supreme Court cases, Haida Nation v. British Columbia andDelgamoakw v. British Columbia, and is statutorily recognized in the Philippines.140

In its assessment of whether Canada adequately balanced the "public interest" with the rights of indigenous peoples, the Delgamuukw

and Haida courts considered, as a critical factor, whether effective consultation had occurred. The Haida court embraced the finding by

the Delgamuukw court that there is always a duty of consultation, which must be in good faith and with the intention of substantially

addressing the concerns of aboriginal peoples whose lands are at issue.141 A determination of whether an effective balancing of interests

had occurred may turn on whether consent has been obtained.142


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In addition to requiring consultation and consent of communities prior to the eviction or resettlement of indigenous communities from

protected areas, the Philippines requires that all rules and regulations governing ancestral lands within protected areas, "whether

adversely affecting said communities or not, shall be subjected to notice and hearing to be participated in by members of concerned

indigenous community."143

Hearings are often employed to facilitate consultations for public interest determinations.144 Often these occur after a government

agency has initiated a proposal or made a decision to act. To the extent these hearings provide an effective means of consultation-in that

they are physically accessible to communities, proceed in a language understood by these communities, and are not perfunctory attempts

to legitimize an already-established government decisionthey can be useful approaches to effective and equal participation in public

interest determination and just compensation processes. But a certain degree of awareness and accommodation of local customs and

institutions is needed. In some communities, women may not be willing to voice their concerns when men are present, and therefore

separate hearings for women may be necessary-and especially valuable to garner information-in order to provide a meaningful

opportunity for all adults to express themselves.

It has been suggested that the referendum process may sometimes be a legitimate mechanism for making public interest determinations.

If a referendum is designed to ensure that all sections of each affected community can be heard, it may provide useful means to ascertain

the extent to which affected communities consider protected areas to be in their interest. Also, the process by which the referendum is

conducted is of utmost importance. Although referenda are a basic form of direct democracy, considerable concern exists that they may

not effectively address the interests of marginalized groups. For instance, one expert argues that referenda should not be used for landzoning issues: they tend to be complex; the public often lacks adequate information to make informed decisions; and land use planning

may involve an array of technical issues.145 Conducting a referendum might also be inconsistent with local culture and customary laws;

minority interests may not be articulated or protected; and finally, referenda, like other political processes, are vulnerable to

manipulation.146

Whatever mechanisms are used, adequate, accurate, and available information is needed from the survey. Otherwise, indigenous and

other local communities will be unable to have meaningful voices in state-sanctioned processes for determining how best to conserve or

use natural resources in the "public interest." In the absence of adequate, accurate, and available information, it will also be impossible to

ascertain in advance whether the adverse effects of the state's actions will be discriminatory or disproportional to the stated aim of

establishing a protected area. For instance, forcibly removing indigenous communities from ancestral territories may arguably, in some

instances, be the only effective way to promote the state's particular biodiversity goals, but other means may exist to achieve the same

ends while respecting local communities' interests and rights.

Similarly, authentic referenda cannot be held if participants do not have access to adequate information about the consequences of their

decisions. Required information should include a clear identification and an assessment of the impact to communities and their natural

resources, the proposed public interest at stake, and other options for securing this public interest.147 This will often require a social and

environmental impact assessment (SEIA). According to guidelines adopted by Parties to the Convention on Biological Diversity, such a

SEIA should involve the full and informed participation of potentially affected communities.148

Effective mechanisms for review of final decisions are also necessary. These mechanisms must ensure that the nature and scope of rights

will be delineated, the possibility of judicial remedies will exist, and remedies, if appropriate, will be enforced. For example, in Awas

Tmgni v. Nicaragua, the Inter-American Court of Human Rights determined that Nicaragua failed to provide a mechanism to examine

and address the lack of recognition of fundamental rights of the indigenous community, and lacked legislation or other measures

necessary to give effect to these rights.149 As such, the Court concluded that Nicaragua violated its obligations under the Inter-American

Convention on Human Rights to ensure prompt recourse to a competent court or tribunal against acts that violate fundamental rights.150

Understanding how the rights of communities to prior informed consent for use of natural resources relate legally and in practice to the

rights of states is critical to the development of effective approaches for establishing protected areas. Only in understanding the roles and

responsibilities of non-state actors in this process will a full picture of the possible realm of activity be available. The following section

will describe the roles and responsibilities of non-state actors, particularly conservation organizations.

III. NON-STATE ACTOR RESPONSIBILITIES


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States often act in concert with, or support the efforts of, non-state actors in establishing protected areas. This Section will examine the

responsibilities of non-state actors to indigenous communities in the establishment of protected areas and briefly examine and evaluate

the efforts of large non-governmental organizations to satisfy these responsibilities.

A. RESPONSIBILITIES UNDER INTERNATIONAL LAW

What are the responsibilities of non-governmental organizations to indigenous peoples and other local communities in the context of

establishment of protected areas? As non-state actors assume increased influence-significantly shaping the global economy, the global

environment, and policies and laws of states-international law is evolving to more clearly articulate the rights and responsibilities of

actors such as conservation organizations, including their rights and responsibilities vis--vis states.151

Most recently, the U.N. Office of the High Commissioner for Human Rights requested the appointment of a Special Representative to,

among other things, "identify and clarify standards of corporate responsibility and accountability."152 The Special Representative, John

Ruggie, has not yet completed all tasks within his mandate, but has mapped the international standards that currently govern corporate

activities in relation to human rights. Ruggie notes in his report that "[c]orporations increasingly are recognized as "participants" at the

international level, with the capacity to bear some rights and duties under international law,"153 and opines elsewhere that:

By far the most consequential legal development is the potential extension to companies of liability for international crimes, imposed

under domestic laws, but reflecting international standards in relation to genocide, crimes against humanity, and war crimes. Few

companies may ever directly commit acts that amount to international crimes. But there is greater risk of their facing allegations of'complicity' in such crimes."154

He observes that "there appears to be little movement in the responsibilities corporations may have under international law for other

human rights violations," but notes that "[s]ome observers hold that the U.N. human rights treaties coupled with customary international

already impose direct legal responsibilities on companies. The U.N. Sub-Commission's Norms reflect this view and attributed the entire

spectrum of state duties under the treaties-to respect, protect, promote, and fulfill rights-to corporations within their 'spheres of

influence."'155 The International Commission of Jurists also supports this view.156

Ruggie notes that international human rights instruments clearly impose at least indirect responsibilities on corporations, "responsibilities

provided under domestic law in accordance with states' international obligations," and highlights that "the State duty to protect against

non-State abuses is part of the very foundation of the international human rights regime.157 The duty requires states to play a key role in

regulating and adjudicating abuse by business enterprises or risk breaching their international obligations." He indicates that the failure

of some States to have "internalized the full meaning of the state duty to protect and its implications with regard to preventing and

punishing abuses by business enterprises. . .gives rise to concern."158

B. TRANSNATIONAL CORPORATION RESPONSIBILITY AND NGOS

To what extent do any direct or indirect responsibilities of transnational corporations apply to other non-governmental organizations,

such as international conservation organizations that work to establish protected areas throughout the world? The definition of

"transnational corporation," as an "economic entity operating in more than one country or a cluster of economic entities operating in two

or more countries-whatever their legal form, whether in their home country or country of activity, and whether taken individually or

collectively," could apply to these organizations. According to the U.N. Glossary of Classification Terms, "economic entity" refers to:

[A] legal or social entity, or a group of entities, that engage(s) in economic activities and transactions in its/their own right, such as

corporations, non-profit institutions or government units. An economic entity has legal, administrative, or fiduciary arrangements,

organisational structures or other parties having the capacity to efficiently allocate resources in order to achieve objectives.159

Through their business transactions and otherwise, these organizations engage in economic activities that can significantly influence

government decisions.160 For example, The Nature Conservancy (TNC), Conservation International (CI), and the World Wildlife Fund

(WWF), significantly contributed to a ten million dollar "Debt for Nature Swap" that could have important impacts on decisionmaking

processes with respect to the use of Colombian forests inhabited by indigenous and other traditional peoples.161 The oversight

committee for this agreement includes these three NGOs in addition to representatives from the governments of Colombia and the United

States. Similar conservation programs involving millions of dollars have been carried out in Bangladesh, Belize, El Salvador, Peru, the

Philippines, and Panama.162


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These NGOs may also qualify as "organs of society" that have responsibilities recognized by the Universal Declaration of Human

Rights.163

C. EFFORTS BY CONSERVATION ORGANIZATIONS TO RECOGNIZE THEIR HUMAN RIGHTS RESPONSIBILITIES

Toward recognition of these responsibilities, international conservation organizations such as WWF, CI, and TNC have adopted, in

various forms, standards or guidelines for engaging with indigenous peoples.164 In the Preamble to the WWF Statement of Principles on

Indigenous People and Conservation, WWF notes: "[Environmental and other non-governmental organizations, together with other

institutions worldwide, should adopt strategies with indigenous peoples, both to correct the national and international political, economic,

social, and legal imbalances giving rise to these destructive forces, and to address their local effects."165

The statement also contains language indicating WWF's willingness to adhere to international human rights standards. For instance, the

Statement of Principles establishes WWF's endorsement of the provisions concerning indigenous peoples contained in international

instruments such as Agenda 21, the Convention on Biological Diversity, ILO Convention 169 (Convention Concerning Indigenous and

Tribal Peoples in Independent Countries), and Draft U.N. Declaration on the Rights of Indigenous Peoples.166 In addition, the statement

makes several specific references to the rights of indigenous peoples to PIC. One such declaration notes: "WWF will not promote or

support, and may actively oppose, interventions which have not received the prior free and informed consent of affected indigenous

communities, and/or would adversely impact - directly or indirectly - on the environment of indigenous peoples' territories, and/or would

affect their rights."167

Similarly, Conservation International has adopted a policy that appears to embrace indigenous peoples' right to PIC. It states, "[CI] will

openly inform, consult and obtain the informed consent of formal representatives of indigenous groups prior to undertaking any actions

that are directly tied to indigenous peoples, their territories or natural resources."168

The Nature Conservancy's views on the right to PIC are less obvious. A description of its mission describes a "Commitment to People"

as one of The Nature Conservancy's "Seven Core Values," and states that TNC "respect[s] the needs of local communities by developing

ways to conserve biological diversity while at the same time enabling humans to live productively and sustainably on the landscape."169

This might include PIC, but it is far from clear.

In a Joint Policy Statement by the World Conservation Union (IUCN), the World Commission on Protected Areas (WCPA), and WWF,

on "Principles and Guidelines on Indigenous and Traditional Peoples and Protected Areas," these organizations agreed that "rights should

be respected in relation to the lands, territories, waters, coastal seas and other resources which they traditionally own or otherwise occupy

or use, and which fall within protected areas."170 One of the guidelines asserts that, in creating new protected areas, stakeholders,

including NGOs, should consider the following procedures:

a) collaborati

Documents

48933796 Envi Partnerships for Success in Protected Areas