natural justice

2010 is an important moment in the development of international environmental law for indigenous peoples and local communities (ILCs). Negotiations under the auspices of the United Nations Convention on Biological Diversity (CBD) and the UN Framework Convention on Climate Change (UNFCCC) are likely to culminate in two instruments that will have significant impacts on the lives of ILCs: the International Regime on Access and Benefit Sharing (IRABS) and the Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (REDD), respectively. The IRABS will regulate the way traditional knowledge (TK) and genetic resources (GR) are accessed and how the benefits arising from their use are shared. REDD aims to contribute to the mitigation of climate change by facilitating payments for reducing deforestation in which ILCs live and depend on for their livelihoods.

In both the CBD and UNFCCC forums, ILCs and non-governmental organizations (NGOs) are questioning the ability of the respective instruments to adequately respect and promote communities’ ways of life that have contributed to the conservation and sustainable use of biodiversity. While international regulatory frameworks are important for dealing with modern global concerns such as biodiversity loss and climate change, their implementation requires careful calibration at the local level to ensure the environmental gains and social justice they are intended to deliver. The local implementation of environmental legal frameworks is most likely to lead to environmental and social benefits when ILCs have the right of free, prior and informed consent (FPIC) over any activities undertaken on their lands or regarding access to their traditional knowledge, innovation and practices (also referred to collectively as TK) and when they are able to ensure that any activities or benefit-sharing agreements reflect their underlying bio-cultural values. Without ILCs’ input, there exists significant potential for laws intended to promote the overarching aims of the Rio Conventions to instead further undermine the communities that have most contributed to the protection of biodiversity and least contributed to climate change.

The legal and bio-cultural empowerment of ILCs is therefore the indispensable condition of the local integrity of international environmental law. NATURAL JUSTICE is concerned that at the international level the development of laws and guidelines focus disproportionately on protecting the environment and ILCs’ TK without empowering ILCs to ensure the conservation and sustainable use of their natural resources and the wider use of their TK according to their bio-cultural values. Although there is a significant body of work pertaining to sui generis systems of the protection of TK and associated GR, significantly less emphasis has been placed on devising means to ensure locally entrenched, holistic approaches to environmental law. NATURAL JUSTICE is working to legally empower communities within environmental frameworks through the development of bio-cultural community protocols.