Mini-Forum on Legal Empowerment and the Environment

Legal Empowerment and the Poor and Environmental Justice in Latin America and

the Caribbean: Issues and Challenges

Global South-South ExpoHofburg Palace, ViennaNovember 22nd, 2012

Presenter: Leisa Perch, Policy Specialist/Team Leader - Rural and Sustainable Development

International Policy Centre for Inclusive Growth (IPC-IG)

INTRODUCTION TO IPC-IG IPC-IG is a partnership of the Government of Brazil and

UNDP based in Brasilia, Brazil. Focus of our research is international; specifically

focused on the South and on South-South Cooperation and Learning.

Themes for IPC’s applied policy research: Macro-Economic Policy, Rural and Sustainable Development, Social Protection, Development Innovations.

In Rural and Sustainable Development, the focus in on 3 key areas:• Inclusive Green Economies/Green Growth• Sustainable Rural Growth• Social and Political Innovations for Sustainable

Development*See more on our webpage: www.ipc-undp.org

OUR WORK: SCALING UP FOR SOCIAL SUSTAINABILITY

Targeted Strategies for:

Rural Poor

Indigenous Peoples

Persons with Disabilities

PLHIV

IDPs and refugees

1.4 billion Rural Poor globally

300 million Indigenous Peoples

600+ million Persons with Disabilities

30+ million IDPs/refugees

All rights reserved by UNDP Pakistan

OVERVIEW OF THE PAPER

- Introduction to the theme and the issues- The Poverty-Inequality-Environment Nexus in LAC- Evolving Notions of Justice and Entry points for Legal

Empowerment- Collective and Individual Rights in LAC and the Role of the

Law - Legal empowerment for greater natural resource benefit-

sharing and burden-sharing- Appeals to law/legal reforms - Increasing access to the law - From increased access and specific rights to securing real

justice- Addressing user rights and property rights in the context

of REDD_- Key Takeaways

INTRODUCTION TO KEY THEMES AND ISSUES

harmful impacts of natural resource exploitation fall disproportionately on the poor and indigenous peoples

Policy solutions tend to be in the form of: Effective governance progressive institutional

frameworks, greater access to effective

remedies the legal empowerment of

the poor Legal Reform alone often

not enough

“Most indigenous peoples live on the margins….their purses are not as strong as others when coping with climate change.” Chief Charles Williams of the Kalinago Territory in Dominica - at the UN-affiliated Peoples’ Summit on Global Climate Change in 2009.

ENVIRONMENTAL JUSTICE Environmental justice has been described as “an

ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs related to the impacts of ecological change on the poor and vulnerable in society.”*

Notions of environmental justice are being shaped by broader international policy, norms and principles, often creating a dualistic evolution of justice where pressures are exerted by social movements within states and also are derived from global crises and policy advances.

*Khoday, K and Perch, L. a. (2012). Green Equity: Environmental Justice for More Inclusive Green Growth. IPC-IG. Brasilia: IPC-IG.

THE POVERTY-INEQUALITY-ENVIRONMENT NEXUS IN THE LAC REGION

UNIQUENESS OF THE LAC REGION not the poorest region of the world, it is often

identified as the most unequal, particularly LA. Montserrat (5K) to Brazil (200MN) Traditions, rights and historical inequalities &

intensified debates about ownership of environmental assets and endowments. Protests across LA in particular.

Regional correlation between the structure of production, labour market participation and income inequality (UNECLAC, 2012)

Caribbean: Resource dependence = inter-relationships between poverty, environmental sustainability, the structure of the economy and the sustainability of growth

Caribbean: Multiplier effects from natural hazards + poverty (Estimated 38 per cent poverty rate paradoxical given high HDI)

UNIQUENESS OF THE LAC REGION Figure 1. Variation in Inequality in Labour and Total Income,Gini Index, 2002-2010

Country HDI 2011 Inequality-Adjusted HDI

Bahamas 0.771 0.655

Guyana 0.663 0.493

Haiti 0.454 0.278

Jamaica 0.727 0.610

Trinidad and Tobago

0.760 0.655

Table 1.Change in HDI accounting for inequality in select CARICOM States

MAJOR POVERTY-ENVT-INEQUALITY ISSUES

the social Injustice of environmental problems Caribbean still largely shaped by colonialism and

discriminatory patterns of wealth, social equity and resource control

the disproportionate impact of climate change on low-lying SIDS and States with potential for entire populations to be come the climate-poor

links between social equity, social justice, environmental protection and ecological sustainability (CC)

fair and equitable access to resources for development

Indigenous population in the region - about 40 million people (LA and C).

In Mexico alone, there are 56 recognized indigenous groups and 62 languages. In Guatemala, 86.6 per cent of indigenous people are considered poor, while in Mexico, 80.6 per cent are poor (World Bank).

Community protests concerning potential mining investments have spiked, largely due to the negative environmental impacts on health and livelihoods (e.g. Peru).

LONG TERM CLIMATE RISK & THE DEVELOPING SOUTH

Table 2 – 2010 Risk Index

Harmeling, 2012

EVOLVING NOTIONS OF JUSTICE AND THE ENTRY POINTS FOR LEGAL EMPOWERMENT EFFORTS

MAPPING THE EVOLUTION

Development in LAC (colonial, post-colonial, nationalist or otherwise) have

involved the exploitation of natural resources for economic growth.

Economic structure of colonization = unlimited access to land, labour, resources and minerals and the total capture of resources.

Lasting impact of these economic structures ( who has access to what resource)

Re-dress (top-down): Nationalization of resources at will (in Argentina,

Bolivia and Venezuela); the allocation of territorial rights (in Brazil and the

Commonwealth of Dominica);

MAPPING THE EVOLUTION (2) Land as economic empowerment:

nationalized approaches have eliminated some of the basic ethnic/racial biases in landownership e.g. the Tenantry Freehold Act of 1980 in Barbados radically shifted the distribution of land ownership

Economy and social power: Economy as instrument for redistribution and green

growth - importance of continued social inclusion that prioritizes rural areas, indigenous peoples and women

State intervention and the implementation of public policies to assume the costs of transition (SELA, 2012:18)

Climate Finance: Expanse of justice/equity discourse to include access

to global finance and prioritization in fund allocation (esp. Caribbean)

JUSTICE AND REAL JUSTICE? Ancestral Lands

specific attention to the needs of women and children (IACHR)

State obligation to give special attention to indigenous peoples, tribes and their members (IACHR, 2009:18)

Land Reform and Gender: 40 per cent of Haiti’s

rural households are FHHCan own, buy, sell and

inherit land and pass it to their heirs

But do not enjoy fully equal inheritance rights.

After landmark judgements in 2007 and 2010 in favour of the Maya villages of Conejo and Santa Cruz (of Belize) full legal ownership over their lands and its resources as well as the remaining Mopan and Q’eqchi villages in Toledo District, In 2011 the Maya in Conejo woke up to the sound of explosions right outside their village. Without any warning, US Capital Energy had cleared some four miles of forest. Additionally, seismic testing ignited a massive fire that destroyed more than 400 acres of the newly discovered ecosystem.

Exposure to natural disaster

Nation

(Individual,

Household or

Community)

Social Susceptibility Social Resilience

Measure of social vulnerability

Construct of Social Vulnerability developed by Asha Kambon, 2005

poor infrastructure

poor planning

ENVT JUSTICE AND THE CREATION OF NEW GROUPS

“Club rights”: the rights of specific groups within society - most significant advances in environmental justice emerging in the expansion of indigenous rights and social justice avenues for indigenous peoples. Indigenous Peoples: “social, cultural, economic and political

characteristics that are distinct from those of the dominant societies in which they live,” (The United Nations Permanent Forum on Indigenous Peoples)

Citizens of SIDS: Environmental threats potentially undermine the realization of individual rights by threatening life, livelihoods and health in a way that potentially affects entire states

Coastal dwellers and those dependent on coastal livelihoods: Climate change could displace specific groups of people**.

*(http://social.un.org/index/IndigenousPeoples/DeclarationontheRightsofIndigenousPeoples.aspx)

**http://www.idlo.int/Publications/8_MayerBenoit_InternationalLawandClimateMigrants.pdf

EVOLVING FACE OF WHO NEEDS ACJ

Organic farmer, Roseau Market, Dominica

COLLECTIVE AND INDIVIDUAL RIGHTS IN LATIN AMERICA AND THE CARIBBEAN AND THE ROLE OF THE LAW

RIGHTS OR ECONOMIC RIGHTS?

“It is not only the legal rights that the poor need, it is the capacity to exercise their economic rights effectively.” (Mennen, 2010).http://www.idlo.int/publications/LEWP/Mystery_LEP.pdf

INCREASING OVERLAP/CONTESTATION

privacy and respect for the home

peaceful enjoyment of possessions

freedom of movement protection from

displacement

Mairi Beautyman

• adequate housing• water• non-discrimination• equality between men

and women

quantity and quality of environmental resources

access to services

users

property owners

Right to development both for people and the state the International Covenant on Economic,

Social and Political Rights suggests the following guarantee by the State for its peoples: 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 co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. (Part 1, Article 1: 2).

Forest resources? individual and collective rights can pit the rights to development and livelihood directly against the right to protection from displacement (e.g. Haiti).

COLLECTIVE AND INDIVIDUAL RIGHTS AND RESPONSIBILITIES

Figure 6: Vendors sell vegetable charcoal at La Saline market in Port-au-Prince. Nearly all of the 30 million trees planted in the 1980's with a US$22.8 million project by the U.S. Agency for International Development, have been cut down to make charcoal for cooking. The resulting erosion has made the island more vulnerable to devastating floods each hurricane season.

LEGAL EMPOWERMENT FOR GREATER NATURAL RESOURCE BENEFIT-SHARING AND BURDEN-SHARING IN LAC

APPEALS TO LAW/LEGAL REFORMS IN THE PURSUIT OF ENVIRONMENTAL JUSTICE

National laws, legal reform etc- Ecuador:

- Constitutional amendment in Ecuador to confer Rights of Nature (2008): Right of Nature to exist and its value to society.

- Mexico’s General Law on Climate Change- One of the most direct statutes addressing the issue

of climate change (2012)*. - Guarantees, inter alia, the right to a healthy

environment. - Barbados:

- The CZMA confers the right to protect the environment as well as coral reefs as well as the right to levy damages for reef destruction.

- 1999 Ombudsman report noted “the sea” as one of most precious natural assets for Barbadians*

- *http://www.idlo.int/Publications/MexicoClimateChangeLWB.pdf - *http://pdf.usaid.gov/pdf_docs/PNADC135.pdf

ACCESSING JUSTICE THROUGH THE INTER-AMERICAN COMMISSION/COURT OF HUMAN RIGHTS

In October 2002, the IACHR recognized the connection between environmental degradation and human rights, applying a rights-based approach to environmental protection and justice.

144th Session (March 2012), schedule of hearings included six cases concerning indigenous rights + a hearing on the Human Rights Situation of Persons Affected by the Extractive Industries

in the Americas. Box 1. The Saramaka People v. Suriname

In The Saramaka People v. Suriname, the IACHR addressed logging and mining concessions on Saramaka territory that were awarded by the Government of Suriname without full and effective consultation. In its ruling for the Saramaka people, the Court outlined three safeguards that the State must abide by to avoid inflicting future social and environmental injustices on indigenous peoples and their lands:

1. effective consultations, as well as free, prior and informed consent in connection with development and investment projects;

2. sharing of benefits from development plans; and 3. prior and independent environmental and social impact assessments.

These three safeguards serve as a good model for other states seeking to mitigate the risk of committing or enabling environmental injustices. (Orellana, 2008, 841)

ACCESSING JUSTICE THROUGH THE INTER-AMERICAN COMMISSION/COURT OF HUMAN RIGHTS

State/Country Date Incident Details

Panama February 7, 2012 (noted by IACHR) Members of the Ngöbe Buglé indigenous group blocked the Inter-

American highway for several days in a protest related to the

discussion in Congress of Bill No. 415, “which establishes a

Special Regime for the Protection of Mineral, Water, and Natural

Resources in the community of Ngöbe Buglé.”

Guatemala March 27, 2012 In 2011, five men were arrested and charged with taking part in

the Plan de Sánchez Massacre of 268 people, mostly members of

the Maya indigenous community. This case has since been

reopened.

The IACHR notes that there is a protection deficit of indigenous

territorial rights in Guatemala, characterized by failures to

recognize indigenous lands; the lack of a property

registry or cadastre system that recognizes ancestral

territories and enables the protection of lands that

belong to indigenous peoples; the acquisition of lands by

companies without the State's direct supervision; and the

execution of investment, development and natural

resource extraction projects in contradiction of

international norms in these matters.

Venezuela September 5, 2012

(IACHR release)

Illegal miners allegedly opened fire on the Irotatheri, where

approximately 80 members of the Yanomami Peoples were

gathered. Individuals in a helicopter opened fire on the group,

including children and elders.

The IACHR asserts that states have an obligation to protect

members of the Yanomami Indigenous Peoples from third-party

attacks and from those interested in the natural resources that

exist in Yanomami ancestral territories. The IACHR has called for

further investigation of the massacre.

FROM INCREASED ACCESS AND SPECIFIC RIGHTS, TO SECURING REAL JUSTICE In Trinidad and Tobago:

Series of protests over an extended period seems to have halted the establishment of one of two proposed smelters.

Arguments for: Macro-economy - importance of these activities and their

economic benefits. Arguments against:

Environment and health related externalities Plans for a second plant, proposed for LaBrea, were also

scrapped, despite local approval for the proposal. Interesting court ruling ( temporarily halting construction of

the LaBrea smelter) finding that environmental approval for the smelter was granted in

an “outrageous, irrational and procedurally irregular manner.” The judge cited the lack of consideration in granting a Certificate of

Environmental Clearance by the Environmental Management Agency of the cumulative impact of the smelter and two other industrial projects, namely a power plant and a new port facility.

USER AND PROPERTY RIGHTS IN THE CONTEXT OF REDD+: EMERGING CHALLENGES FOR EJ

Arguments for: Reduction of emissions through avoided emissions and

sequestration Mobilize resources for the poor Recognizes ecosystem services

Arguments against: Limits user rights Appropriately compensating for the loss of such

rights? Given an economic value?

Other Questions: who owns or has rights to carbon (Parkinson and

Wardell (2010: 6). Resolving conflicts………between agricultural

communities and indigenous peoples” (IDLO, 2010).

FORESTS: BEYOND CARBON SEQUESTRATION

• Co-benefits: biodiversity conservation, forest recuperation and sustainable harvesting of forest resources at global, national and local levels

•Indigenous people’s role in forest and biodiversity conservation through their livelihoods absent in policy initiatives.

•References to indigenous peoples are now increasingly common but in what context?

http://blog.conservation.org/2010/12/indigenous-participation-is-critical-for-climate-change-success

http://www.treehugger.com/corporate-responsibility/redd-forest-protection-program-could-threaten-rights-of-350-million-people.html

LOOKING FORWARD

KEY TAKE-AWAYS

Strengthening marginalized groups’ trust in the institutions and authorities.

Indigenous autonomy regimes, increased corporate citizenship and a rights based-approach to environmental protection have also helped.

Rights at the state, regional or international level are effective only when a state enables their implementation.

Legally empowered organizations must mobilize to ensure that social and political conditions in each country allow policies to be proposed and discussed.

Legal decisions in favour of indigenous or marginalized groups need to be applied to their daily lives.

Non-legal mechanisms (social movements) can play a significant complementary role, by enhancing societal roles in the development process.

Need to update the “socio-environmental compact”. Need to look at cumulative effects and not just individual

cases.

THANK YOU FOR YOUR ATTENTION!

LEISA PERCHLEISA.PERCH@IPC-UNDP.ORG