environmental JusticE

& the rights of

Indigenous Peoples

INTERNATIONAL & DOMESTIC

LEGAL PERSPECTIVES

L a u r a We s t r a
Environmental Justice and the
Rights of Indigenous Peoples
 Environmental Justice and the
Rights of Indigenous Peoples
International and Domestic Legal Perspectives

Laura Westra

EAR T H SCAN
London • Sterling, VA
First published by Earthscan in the UK and USA in 2008

Copyright © Laura Westra, 2008

All rights reserved

ISBN: 978-1-84407-485-3

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A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

Westra, Laura.
Environmental justice and the rights of indigenous peoples : international and domestic legal
perspectives / Laura Westra.
p. cm.
ISBN-13: 978-1-84407-485-3 (hardback)
ISBN-10: 1-84407-485-4 (hardback)
1. Indigenous peoples--Civil rights. 2. Indigenous peoples--Legal status, laws, etc. 3. Offenses
against the environment. 4. Conservation of natural resources--Law and legislation. I. Title.
K3247.W47 2007
342.08’72--dc22
2007021165

The paper used for this book is FSC-certified and

totally chlorine-free. FSC (the Forest Stewardship
Council) is an international network to promote
responsible management of the world’s forests.
 Contents

Foreword by Bradford W. Morse vii

Preamble ix
Acknowledgements xi

PART I – BASIC ISSUES, PRINCIPLES AND HISTORICAL BACKGROUND

1 The Rights of Indigenous Peoples: Eco-footprint Crime and the

‘Biological/Ecological Integrity Model’ to Achieve Environmental Justice 3
2 Cultural Integrity and Ecological Integrity: The Interface and
International Law 23
3 Cosmopolitanism and Natural Law for the Recovery of Individual
and Community Rights 47

PART II – SELECTED EXAMPLES FROM DOMESTIC AND INTERNATIONAL

CASE LAW

4 Indigenous Peoples and Minorities in International Jurisprudence

and the Responsibility of the World Bank 71
5 The United States and Indigenous Peoples: Some Recent ATCA
Jurisprudence 103
6 First Nations of Canada and the Legal and Illegal Attacks on their
Existence 125

PART III – JUSTIFYING GENOCIDE: PRINCIPLES AND REALITY

7 Genocide and Eco-crime: The Interface 163

8 Aboriginal Rights in Domestic and International Law, and the
Special Case of Arctic Peoples 187

PART IV – SOME MODEST PROPOSALS FOR GLOBAL GOVERNANCE

9 Indigenous Human Rights and the Obligations of State and

Non-State Actors 219
10 Governance for Global Integrity: Present Instruments, Trends
and Future Goals 241
vi ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Appendix 1 The Earth Charter 275

Appendix 2 ‘Development’ and Environmental Racism:
The Case of Ken Saro-Wiwa and the Ogoni 281
Appendix 3 Selected Documents 289

List of acronyms and abbreviations 311

List of cases 313
List of documents 317
Bibliography 323
Index 341
 Foreword

We live today in a world filled with fundamental challenges to our health, personal
security, economic and spiritual well-being, and even our very survival. Our identities as
citizens of increasingly less significant states; as members of religious, ethnic or cultural
groups who are often in conflict with other groups; as workers in a global economy in
which unseen forces can suddenly cause our financial houses to crumble; as parts of
families increasingly under threat; all of these factors can give rise to feelings of fear,
anger and simply being overwhelmed. More recently, we have moved from a situation
of many localized environmental disasters to one in which the future of the entire globe
is threatened by climate change. Those who have achieved this realization the earliest,
about whom Laura Westra draws upon the analogy of the ‘canaries in the coal mine’,
are those indigenous peoples around the world who have managed – despite colossal
intrusions upon their societies and the ravages of generations of colonization – to
sustain a symbiotic relationship with their traditional territories. They and their lands
are also frequently the most directly threatened by the environmental depredations
that have occurred, and are continuing to occur at an ever accelerating rate.
Laura Westra has sought to build upon the foundations laid in her two most recent
books involving the intersection between environmental health and a broadly interpreted
concept of human rights. In Ecoviolence and the Law: Supranational Normative Foundations
of Ecocrime she argued passionately and cogently that pollution was not merely a civil
wrong justifying access to financial compensation for its victims but should be viewed
as a form of violence that warranted criminal sanctions. In Environmental Justice and
the Rights of Unborn and Future Generations, she sought to apply principles of ecojustice
to the special case of children’s right to health, including a healthy environment,
and then to extend this approach to protect future generations. Now, in the present
work, she moves from children as the particular category of the most vulnerable
individuals into exploring the situation of peoples that also are highly vulnerable yet
have the capacity to pursue collective action. This natural progression leads Dr Westra
to examine in detail the threats confronting indigenous peoples throughout the world
and the challenges they face in seeking to protect their identity, their traditional lands,
and the interdependence that exists between the two. In this regard, she raises the
specific situations of indigenous peoples in a number of countries and the significant
environmental risks that threaten their collective survival.
The author assesses the two most common models for advancing the collective
aspirations of indigenous peoples – the cultural identity and self-determination models
– and finds them lacking. She asserts persuasively that both models pay inadequate
attention to addressing the immediacy of the threat to the air, lands and waters on
viii ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

which indigenous peoples rely, as well as to the growing scientific evidence of major
risks to their physical health. Thus, Laura Westra seeks to emphasize the importance of
supplementing these two prevailing frameworks for human rights analysis and political
action by adding a third: the ‘biological/ecological integrity’ model. In doing so, she is
passionate and provocative in building a truly multidisciplinary approach in which she
draws upon legal principles, population health information, environmental and social
science research, and the impact on domestic economies of the actions of transnational
corporate and financial entities upon the most essential concerns of indigenous peoples.
She is almost as energetic as a force of nature herself as she seeks to prod readers
to consider new ways of thinking to solve longstanding problems. Throughout this
important book she continues to keep the spotlight on ethical questions as being at the
core of public debate while aggressively attacking governments and the World Bank for
permitting multinational corporate polluters to profit from ecoviolence with virtually
no sanctions and little recourse to international environmental and human rights
law principles. Her efforts involve the exploration of existing international covenants
confirming environmental and human rights standards, the continuing relevance of
customary international law and the potential importance of new emerging indigenous
rights instruments under discussion within the United Nations and the Organization
of American States.
Domestic law in key settler states that have yet to decolonize in any way is also a
central feature of this volume. Dr Westra devotes particular attention to the prevailing
legal regimes in Canada, the United States, Australia and New Zealand as they impact
upon the original owners of these lands. Exploring the utilization of domestic law to
consider breaches of ‘the law of nations’ by foreigners before the American judicial
system through invoking the Alien Torts Claims Act of the USA is an especially valid
and novel aspect.
The over 370 million indigenous peoples spread across the globe possess extra-
ordinarily vibrant cultures, political systems, values and immense traditional knowledge
about their homelands and the environmental changes that have been rapidly escalating
in recent decades. They have much to teach the rest of the planet’s population in this
regard. They have faced the devastating consequences of colonization and marginali-
zation yet they are also survivors who generally continue to be willing to share their
expertise and their generosity while seeking an accommodation with adjacent or
dominant societies. As citizens of the world, we must all confront the human injustices
that exist within our borders while simultaneously addressing fundamental environ-
mental threats from within and without. Laura Westra provides us with very timely
reminders of these pressing issues while offering new ideas on how we should respond.
I urge you to read this book with care. More importantly, I encourage you to take
action. It is a distinct pleasure to add these few words in support of her clarion call for
change.
Bradford W. Morse
Professor of Law
University of Ottawa, Canada
 Preamble

Both economic and biological indicators require a baseline against which future
conditions are assessed. For IBI (Index of Biotic Integrity), that baseline biological
integrity is the condition of a site with a biota that is the product of evolutionary and
biogeographic processes in the relative absence of the effects of modern human activity.
(Karr, 2006)

This book stems from two concurrent strands of thought I have been pursuing: the
centrality of biological/ecological integrity to human rights, and, therefore, the crimin-
ality of depriving humans of that natural, ecosystemic condition. In 2000, I returned to
graduate school to study for a second PhD in Jurisprudence in order to better argue for
the issue of criminality, rather than easily demonstrated immorality. Basing my argument
on the research of the World Health Organization (WHO) and of epidemiology and
public health in recent works, I termed any and all activities that result in harms to
humans, following upon that deprivation, as ‘eco-crimes’ or forms of ‘eco-violence’,
that is, violence practised in and through the environment (Westra, 2004a).
If that argument is accepted, it follows that the most vulnerable among those gravely
at risk are children – both born and preborn, according to WHO research (2002) – and
future generations. Both are unable to move to avoid the harm or to defend themselves
from those attacks on their lives, health and normal function, and environmental justice
requires that their rights, that is, the rights of the future, be respected (Westra, 2006).
In a somewhat natural progression, the next question that arises is whether there
are any groups and communities that are particularly affected today. The answer is
clear once aboriginal peoples are considered. Children and future generations of these
groups are often involved in litigations as the conflict between the economic interests
of state and non-state actors is increasingly obvious with the spread of globalization.
No corner of the world is spared as land-based minorities find that their interaction
with, and their lifestyle on, their territories is no longer possible: mining and extractive
interests put their survival and culture under attack as climate change accelerates and
exacerbates the damage, rendering their traditional, age-old knowledge obsolete.
Having been commissioned in January 2006 to work with the lawyers of the First
Nation at Walpole Island (Chief Dean Jacobs), on the impact of climate change, I could
not rest without further exploring this topic as the natural completion of a ‘law trilogy’
of sorts, starting first with the contention that environmental harms are and should be
treated as crimes. The second argument, supported by a Health Canada grant and with
the collaboration of the Geneva office of the WHO (Child and Adolescent Health),
x ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

asserted that the most vulnerable individuals, the ‘canaries’, are the children and
unborn generations. The present work now adds to these the crimes against aboriginal
communities: these appear to go beyond even simple crimes, being comparable with
the highest criminal activities proscribed by international law, that is, crimes against
humanity and genocide.
That is the basic argument of this work as I review instruments (both domestic and
international) and the case law from all continents in the quest for environmental justice.
Even if I do not succeed in proving the presence of genocide under present definitions
and regimes, or the presence of crimes against humanity, the reader will judge whether
or not at least some valid doubts should be raised about the way environmental harms
are handled in the courts, when these embattled and endangered groups attempt to
receive justice.
The book is divided in four parts. The first part reviews the main present models of
protection of aboriginal peoples in international and domestic law, as it considers the
historical background of ‘self-determination’ and ‘cultural integrity’ models. A third
model is proposed in the first chapter of this part: the ‘biological/ecological integrity’
model, as foundational to the other two and hence necessary for their survival. The
meaning of ecological integrity is also analysed, as is the original natural law approach
to indigenous groups in North and South America, and the need for a universal,
cosmopolitan approach today.
The second part reviews some selected case law from all continents in order to show
the recurring themes brought to the courts in those complaints. The ‘facts’ repeatedly
show the centrality of biological and ecological integrity, and the need to radically re-
evaluate the present treatment of all environmental cases, if justice is to be achieved.
The third part is at the heart of the book’s argument, as it discusses the meaning of
‘genocide’, and examines views on how far that concept can reach, and how far it would
be desirable to extend that reach, beyond the examples in present jurisprudence.
A special situation, that of the Nunavut people of Canada, emphasizes the criminality
of the corporate actors, whose practices have had a near-fatal and ongoing effect on
their life as individuals and as a people. A review of the conditions of Nunavut clearly
supports the proposition that, if not deliberate genocide, then at least ‘wilful murder’
or criminal negligence is present against those Arctic peoples. This is the crux of this
work, and I leave it to the reader to judge whether this argument is convincing.
Finally, part four discusses the responsibility for these harms (and crimes) and the
question of accountability of both state and non-state actors for the irreversible results
of their hazardous activities. The final chapter proposes some possible and desirable
ways of ensuring that global governance acknowledges and entrenches in all legal
instruments, as, for example, the Earth Charter already does, the biological integrity,
health and normal function of individuals and the ecological integrity of the land base
upon which aboriginal peoples depend for their survival.
 Acknowledgements

The research that inspired this work started with a paper I was asked to write by lawyer
Kate Kempton for the First Nation at Walpole Island (Ontario, Canada) and then Chief
Dean Jacobs, in early 2006. That research and my conversations with Kate opened my
mind to the importance of the relation of indigenous peoples to their lands, and to the
immense vulnerability of their communities to the harms, the ‘ecocrimes’ I had been
studying since I returned to law school in 2000.
As I noted in my 2006 work, the most vulnerable individuals in society are indeed the
children, the unborn and future generations (Westra, 2006). But the most vulnerable
groups and communities are, without a doubt, the indigenous peoples of the world. In
order to confirm my insights, I returned to school to audit some courses, and my research
reinforced and helped to focus my beliefs on this issue. I was eventually admitted as a
post-doctoral student to the University of Ottawa, under Professor Bradford Morse. I
learned a lot in his class on Comparative Aboriginal Law, thus my greatest debt is to
him. My deepest thanks are due to him for his time, despite a full teaching and research
schedule before my arrival, and for his illuminating conversations.
I am also extremely grateful to Dr Colin Soskolne (University of Alberta) for
his invaluable help with the medical and epidemiological research required by my
argument. Also, the final months of William Rees’s Social Sciences and Humanities
Research Council of Canada (SSHRC) grant (‘Controlling Eco-Violence: Linking
Consumption and the Loss of Ecological Integrity to Population Health, EcoJustice and
International Law’; three year award from April 1, 2004, File #410-2004-0786; PI: W. E.
Rees, UBC; Co-Applicant, C. L. Soskolne; Collaborator, L. Westra) helped support this
work, as both attacks on eco-justice and human rights breaches are clearly in evidence
when the ecological footprint of Western nations extends to the impoverished but
resource-rich indigenous communities.
My desk research was confirmed after I became co-chair (with Melinda Janki) of
the IUCN Commission on Environment and Law, Specialist Indigenous Peoples Group,
as Melinda and other group members were invited to attend the Ecological Integrity
and a Sustainable Society Conference of the Global Ecological Integrity Group (GEIG),
as they presented their research at Dalhousie University, in Halifax, Nova Scotia (June
24–27, 2007).
Once again, special thanks to Osgoode Hall Librarian Diane Rooke and to Luc
Quenneville of the University of Windsor, without whose technical support this book
could not have been done.
 PART ONE

Basic Issues, Principles

and Historical Background
 CHAPTER 1

The Rights of Indigenous Peoples:

Eco-footprint Crime and the
‘Biological/Ecological Integrity Model’
to Achieve Environmental Justice

INDIGENOUS PEOPLES AND INTERNATIONAL LAW

Indigenous people and their communities and other local communities have a vital
role in environmental management and development because of knowledge and
traditional practices. States should recognize and duly support their identity, culture
and interest, and enable their effective participation in the achievement of sustainable
development.1

This declaration provides an excellent starting point from which to evaluate other
regimes pertaining to the rights of indigenous peoples. One of the major instruments
that supports those rights is the Declaration of Human Rights,2 which has been viewed as
an ‘expression of general principles of law’ (Castaneda, 1969). The International Court
of Justice (ICJ) has also ‘taken judicial notice of the Declaration’ (Cancado Trindade,
1985) and, in general, various UN organs have used the declaration as an ‘authoritative
interpretation of human rights provisions of the United Nations Charter’ (Cancado
Trindade, 1985; see also Humphrey, 1979). In fact, although some argue that the UN
General Assembly resolutions on human rights are not ‘law making’, as they can only be
declaratory in character (Guradze, 1971), it is beyond doubt that they have influenced
the standards of international behaviour and that they have helped in the formation of
international law, as well as state practice, particularly on the highly relevant topics of
‘decolonization, recognition of the right to self-determination of peoples, and perma-
nent sovereignty of States over their natural resources’ (Cancado Trindade, 1985).
All rights are interrelated (Cancado Trindade, 1985), and that holds true especially
for the rights supported by the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights
(ICESCR); ‘without the latter, the former would have little meaning for most people’
(Cancado Trindade, 1985). This approach has been characteristic of the 20th century.
Parallel developments appear to be, first, the emerging importance of individual rights
within this scenario, and second, the increasing awareness of the relationship between
human rights and environment. For instance, the Stockholm Declaration states that:
4 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

. . . man has the fundamental right to freedom, equality, and adequate conditions of
life, in an environment of a quality that permits a life of dignity and well-being.3

In addition, Principle 14 states that indigenous peoples have the right ‘to control their
lands and natural resources and to maintain their traditional way of life’ (Shelton,
1994).The Convention on the Rights of the Child (CRC)4 emphasizes the need to
protect health and the obligation of state parties to fight both malnutrition and disease
and to take into consideration environmental pollution. The 1989 Convention of the
International Labour Organization Concerning Indigenous and Tribal Peoples in
Independent Countries supports environmental protection,5 and the Sub-Commission
on the Prevention of Discrimination and the Protection of Minorities also states that
human rights violation may lead to environmental degradation and that, in turn, can
result in human rights violations. The 1994 Principles declared by that commission
affirm ‘the interdependence and indivisibility of human rights, an ecologically sound
environment, sustainable development and peace’ (Shelton, 1994).
Moving beyond international law regimes, the African and Inter-American regional
rights systems guarantee the right to a ‘safe and healthy environment’,6 and recognize
the right of all peoples to ‘a generally satisfactory environment favorable to their
development’. The Additional Protocol to the American Convention on Human Rights
in the Area of Economic Social and Cultural Rights, 22 November 1969, Additional
Protocol Art. 11, OAS Treaty Series No. 36, at l, provides that everyone shall have the
right to live in a healthy environment, and similar concerns are expressed in several
constitutions and are supported by litigation.7
These instruments and cases should be considered against the background of the
‘fundamental unity of the conception of human rights, as they all ultimately inhere in
the human person’ (Cancado Trindade, 1985). But if the 20th century is characterized
not only by the emergence of treaties and declarations supporting human rights, hence
the inherent interrelation and the expanding presence of human rights related to the
environment, the 21st century may be the locus of developing ‘third generation’ rights,
even ‘ecological’ rights, as Prudence Taylor argues (Taylor, 1998).
If the unity of civil and political, with economic, social and cultural rights, together
with the emergent diminution of state control over individual rights, is the present
trend, then the rights of peoples as well as individuals to environmental/ecological
‘third generations’ rights is indeed the portent of things to come. Individuals have to be
recognized through a cosmopolitan approach to human rights before special groups
may follow and expect to be considered separately and not only as part of a state party.
The main point is that all these rights are fundamental, as well as interrelated.
Hence they should be viewed as non-derogable, jus cogens rights, and the obligations
they impose singly and jointly should be viewed as erga omnes, that is, beyond the
limited reach of state and domestic law, and even that of treaties limited to those who
are prepared to ratify them. This reality increases the gravity of any possible breach,
and, at the same time, it demonstrates the complexity that is present when collective
responsibility is to be imposed and enforced, justified though it might be.
 THE RIGHTS OF INDIGENOUS PEOPLES 5

THE BACKGROUND OF INDIGENOUS PEOPLES’

RIGHTS IN INTERNATIONAL LAW

International law is not only rules. It is a normative system harnessed to the achievement
of common values, values that speak to all of us. (Higgins, 1994)

The first thing to note is that there is not one absolute definition of ‘indigenous
peoples’ in international law, although they are increasingly emerging both as players
and participants in UN instruments, as well as other documents (Metcalf, 2004). The
main international law instrument that attempts to define indigenous peoples and their
rights, is the International Labour Organization’s (ILO) Convention on Indigenous
and Tribal Peoples.8 It treats as ‘indigenous’ the following groups:

 peoples whose social, cultural and economic conditions distinguish them from
other sections of the national community;
 peoples whose status is regulated wholly or partially by their own customs and
traditions;
 peoples who descend from populations that inhabited a country at the time of
conquest or colonization; and
 self-identification of a group as indigenous or tribal is regarded as a fundamental
criterion (Metcalf, 2004).9

There are other legal instruments that are relevant to both indigenous peoples and
their environment, but only two of these are legally binding: The International Labour
Organization (No. 169) Concerning Indigenous and Tribal Peoples in Independent
Countries, and the Convention on Biological Diversity.10 James Anaya (2004) traces the
rights of indigenous peoples to the earliest times of international law, as they emerged
as a topic of discussion after Christopher Columbus’s ‘discovery’.
From the writings of Roman Catholic missionaries such as Francisco de Vitoria,
the maltreatment of the ‘other Indians’ is clearly documented, as was the natural law
basis for the severe critiques of those ongoing practices (Anaya, 2004). Despite later
criticisms of the natural law-based argument for human rights (see, for example, Baxi,
1998), the natural law approach can best provide the basis for an all-embracing system
of human rights protection, a system that Grotius later attempted to separate somewhat
from that doctrinal origin: ‘Grotius moved toward a secular characterization of the law
of nature, defining it as a “dictate of right reason” in conformity with the social nature
of human beings’ (Anaya, 2004; see also Grotius, 1925).
Nevertheless, it is only because natural law claims a supranational source for
its moral perspective, so that it is not simply ‘humanist’ (Anaya, 2004), that natural
law could and did claim to be able to judge positivist laws. For natural law, a law that
violated the moral code was not truly law at all (Anaya, 2004; see also Westra, 2004c;
King, 1990).11
But in the century after Grotius, Emmerich de Vattel wrote his Law of Nations
(1758) where he argued that natural law should simply be applied to nation/state as
to individuals (Anaya, 2004). Perhaps this approach was foundational not only to the
6 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

correct positivist law preference, but it may also be viewed as the origin of the later
application of individuals’ rights and norms to corporate legal entities. Both moves
proved to be highly damaging to the individual rights of natural persons. In modern
times, the prevalence of eco-footprint harms renders these rights particularly vulnerable
when the individuals at risk are part of an indigenous population (Westra, 2006).
In sum, the step from the natural law protection of all individual basic rights to the
positivist move to subsuming individuals under the category of nation/states, papers over
a vast area of differences that exist, for example, between minority groups and others,
rich and poor, colonizers and colonized. The lack of recognition of these fundamental
differences is highly damaging to indigenous peoples as they are slowly attempting to
regain, singly and collectively, the rights they might have retained historically under a
different conceptual understanding of the law.
In order to apply international law regimes regarding indigenous peoples to First
Nations and other aboriginal groups, the initial steps are: first, to see whether they fit
under existing accepted definitions of indigenous peoples; second, to discover what
binding or suggestive legal instruments may exist that are relevant to the protection
of their interests; and third, to evaluate what soft law instruments may be used to their
advantage. In addition to the covenants mentioned above, the Earth Charter should also
be included, with its strong component of support for all habitats and natural entities
through ecological integrity, and with its explicit support for respect for indigenous
peoples.12

PROTECTION OF INDIGENOUS PEOPLES

THROUGH INTERNATIONAL MECHANISMS

After considering the various legal instruments that might be available to defend
environmental and other indigenous peoples’ rights, the next question that should be
raised is whether there is any group or body to monitor the regulatory instruments that
exist for the protection of indigenous peoples. It is acknowledged that such protection
is not adequate by most legal scholars, thus there is a ‘protection gap’ between human
rights legislation and the problems faced by indigenous peoples (Anaya, 2004).13 Some
of these problems include:

. . . impacts of development projects on indigenous communities, the implementation

of recently enacted domestic laws to protect indigenous rights, the relationship between
formal state law and customary indigenous law, indigenous cultural rights, indigenous
children, indigenous participation in policy- and decision-making processes, and
various forms of discrimination against indigenous individuals. (Anaya, 2004,
pp223–4)

The Committee on the Elimination on Racial Discrimination14 has the authority to

monitor human rights implementation, and it has adopted procedures to address
all circumstances that could be viewed as ‘early warnings’ of situations that might
escalate. This approach was urged by Aboriginal groups in Australia. The Committee
 THE RIGHTS OF INDIGENOUS PEOPLES 7

often invokes the principal of self-determination, even when dealing with Canada and
considering Canada’s report in 1992 and the dispute between the Mohawks and the
government of Quebec where the question of self-determination was raised.15
The ILO Convention No. 169 investigated the situation of several Amazonian
communities, and noted that ‘the right to life and to physical security and integrity is
necessarily related to and in some ways dependent upon one’s physical environment’.16
This particular point cannot be overemphasized. In fact, when Cherie Metcalf lists two
major categories of indigenous rights as the ‘cultural integrity model’ and the ‘self-
determination model’, both also present in Anaya’s work (Anaya, 2004; Metcalf, 2004),
I believe there is an even more basic model that has been omitted, ‘the biological/
ecological integrity’ model. I believe that it is a model that is foundational to all
considerations involving First Nations, with special emphasis on the Seven Generations
Rule, as well as the legally binding international covenants, including the Convention
on the Rights of the Child.

THE ‘THIRD MODEL’ AND FIRST NATIONS

ENVIRONMENTAL RIGHTS ISSUES

The ‘indigenous’ perspective or world view is one of embeddedness and holistic

integration and sharing, in which the environment is embedded within the identity
and the existence of humans. (Kempton, 2005)

The ‘right to life and to physical security’,17 is clearly a description of the rights that
Henry Shue termed ‘basic’: the right to security and subsistence (Shue, 1996). These
rights precede both conceptually and in time, civil and political rights, and economic,
social and cultural rights. The use of normal functions and the capacity for independent
agency both depend on developing in environmental circumstances that permit and
foster, rather than hinder, a human being’s normal development (WHO, 2002; see
also Gewirth, 1982b; Westra, 2006). The biological integrity of individuals is entirely
dependent on the ecological integrity of their surrounding habitat.
In the case of indigenous peoples, including First Nationss, the requirement for a
healthy environment is vital: large cities and industrial centres may be able to mitigate
some of the disastrous environmental conditions that affect us, including the effects
of climate change, but mitigating conditions may not be available to peoples who live
closer to the land and are entirely dependent upon it for their survival. In addition, as
we saw in the case of the city of New Orleans and hurricane Katrina, even in a wealthy
country and in a fully developed area, a city cannot count on escaping disaster. Of
course, other seaside populations in developing countries and island states are facing
even more disastrous conditions.
Even for landlocked groups, the problem is that despite the work of several decades
of conservation biologists, such as Michael Soule and especially Reed Noss (1992),
ensuring conservation and respect for an area’s integrity implies the presence of buffer
(or corridor) areas, as well as the designated ‘core’ areas, in order to ensure the security
and survival of the targeted flora and fauna intended for protection. Unfortunately this
8 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

requirement, though absolutely necessary to the achievement of the protection goals,

has largely been ignored. Any natural reserve and, of course, any First Nation needs a
surrounding ‘buffer’ of sufficient size to ensure that the populations and species within
the protected area are not affected by pollutants, toxins and any effluent that may affect
the mandated conservation (Westra, 1994a; 1998).
Recent work by the European Environmental Agency (EEA) and the WHO (EEA,
2006), provides details of the risk of exposing all populations to pollution and climate
change, and they indicate that the problem is particularly acute for indigenous peoples
in several areas:

Arctic human populations are at risk due to the long-distance transport of bio-
accumulative substances, with the Arctic as an important sink, and the dependence
of indigenous populations on traditional diets exposes them unduly to chemicals
accumulated in the food chain. Europe and other developed countries have a clear
responsibility for the global body burden of chemicals. This raises issues of equity and
global responsibility. (EEA, 2006)

Both wildlife and children serve as ‘canaries’ or sentinels to give early warnings of the
effects of chemicals, especially those that are bio-accumulative, persistent and toxic.
Links between climate change and health are emerging from scientific research as
well, and they ‘particularly affect vulnerable groups, . . . raising issues of equity’. (EEA,
2006)
An example of this lacuna in environmental and human rights law can be seen in
the recent discovery regarding the Aamjiwaang First Nations in Canada’s ‘Chemical
Valley’, near Sarnia, Ontario (Mittelstaedt, 2005). Scott Munro, general manager of
the Sarnia-Lambton Environmental Association (financed by Shell Canada, Imperial
Oil and 13 other large Chemical Valley firms), wants further research to be sure of
data, a familiar ploy when facts emerge that may threaten the status quo. But the facts
are that in the First Nation community there are twice as many girls born as boys, a
finding greeted with alarm by the First Nation’s environmental groups. Pollutants such
as hormones and endocrine disruptors in general, alter parents’ hormonal make-up:

The sexual characteristics of the child are determined during early development and
are under the control of estrogen in girls and testosterone in boys. Under normal
circumstances, the sex ratio is higher than one, i.e. more boys than girls are born.
Several studies have reported a small but significant decrease in the sex ratio of several
European countries. (EEA, 2006)18

It is worthy of note that in the 1976 disaster of Italy’s Seveso dioxin spill, 48 girls were
born and only 26 boys. In addition, thyroid hormones are essential for normal brain
development, especially in the first weeks of pregnancy, and much more could be said
about a number of neurodevelopmental disorders related to polychlorinated biphenyls
(PCBs), insecticides, herbicides and phthalates (Rogan and Regan, 2003).
The question is what is the environmental heritage the parents are forced to
give their children, given the multi-causal health effects that result from our current
practices according to business as usual? The main point is that these effects cannot
be ignored, even if our normal approaches to epidemiology and toxicology do not
 THE RIGHTS OF INDIGENOUS PEOPLES 9

quite capture them: ‘We probably have to abandon the classical toxicological dogma of
cause/effect relationship at the individual level and extend it to the generational level’
(EEA, 2006).
Consideration of future generations is one of the pillars of traditional First Nations
knowledge and belief. In contrast, to ignore the evidence of the harm perpetrated on
First Nations by current practices that the Ontario and Canadian governments ought to
regulate, or rather alter or eliminate altogether, may not be intentional genocide, but
could be termed ‘wilful blindness’ in criminal law, and a case of ‘attacks on the human
person’ in international law.
Nor is this a very recent discovery. Theo Colborn discovered similar effects in the
bird, mammal and marine life in the Great Lakes (Colborn et al, 1996). It was yet
another ‘canary in the mine’ situation that was not heeded at the time. Nor was her
study unrelated to human health:

One way of understanding how environmental exposures affect health is to study

animals in the wild. Despite many differences, many fundamental physiological pro-
cesses in animals and humans are identical or very similar. An effect in wild animals
carries a strong implication that a similar effect may occur in humans in a similar
exposure situation. (EEA, 2006)

Thus, we can say with some confidence that these effects on First Nations deny them
their biological integrity, hence their natural functions, and – like the elimination of
species well-documented by Colborn and others especially in the Great Lakes area
– it indicates the presence of conditions amounting almost to genocide. Ken Saro-
Wiwa so described the chemical alterations produced by the operations of Royal Dutch
Petroleum in Ogoniland, Nigeria. He termed them forms of ‘genocide and omnicide’
as the security and subsistence of his people was being systematically eliminated (Westra,
1998).19
In sum, the biological integrity of indigenous peoples, including First Nations, is
dependent upon the ecological integrity of their living environment, and it is their
access to environmental regimes that single out their specific habitat conditions.
Both the ‘cultural integrity’ and the ‘self-determination’ models, to which Anaya and
Metcalf appeal, are important, but they need the presence of basic conditions with
which individuals and groups can thrive. For all three models, the presence of existing
international legal instruments emphasizes the importance of environmental and
human rights law.

THE APPLICATION OF THE OTHER TWO

MODELS TO ABORIGINAL COMMUNITIES’
ENVIRONMENTAL RIGHTS

The current treaty-based framework of international environmental law is poorly

equipped to accommodate non-state players with equivalent to state rights within the
area of environmental management. (Metcalf, 2004)
10 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Like the additional third model I proposed, of the other two models, the ‘cultural
integrity’ model20 is supported by the Organization of American States (OAS) Declara-
tion that explicitly addresses the right to cultural integrity. The same can be said
about the ‘self-determination’ model; that is, they are both firmly based in human
rights instruments. For that reason, both models pose problems for state sovereignty
(Metcalf, 2004). In both cases the holistic approach to environmental rights, typical of
the indigenous world view, is fundamental.
The difference between these two models and the model for which I argued in the
previous section, however, is that the latter addresses the most basic human rights of
all, that is the right to life, health and normal function, whereas the other two models
assume the presence of those conditions and proceed to add further rights to protect
other possible choices. The ‘self-determination’ model replicates the Economic,
Social and Cultural Rights Covenant, whereas the ‘cultural integrity’ model appears
to be in line with the Civil and Political Rights Covenant. In order to benefit from
the protection of the activities under either covenant, normal intellectual abilities and
physical capabilities are required.
The main point is that in all three cases, the presence of a safe and healthy environ-
mental quality is absolutely required, both for the general habitat and for the land
itself. Indigenous peoples’ traditional lifestyles, living close to the land, render them
particularly vulnerable.

The cultural integrity model

The cultural integrity model emphasizes the value of traditional cultures in themselves,
as well as for the rest of society. According to the Rio Declaration, Principle 22, traditional
cultures and the knowledge they possess must be protected:

Cultural protection for indigenous peoples involves providing environmental guaran-

tees that allow them to maintain the harmonious relationship to the earth that is
central to their cultural survival. (Metcalf, 2004)

Hence, not only their biological integrity but also their cultural integrity are entirely
dependent on the protection of the ecological integrity of the areas they occupy. Any
consideration of the economic value of these areas and forests is thus equally dependent
on that protection.
Both the Biodiversity Convention,21 Article 8(j) and the United Nations Convention
to Combat Desertification in those Countries Experiencing Serious Drought and/
or Desertification Especially in Africa22 incorporate cultural integrity as one of the
indigenous environmental rights that are protected, while the Arctic Council of
1996,23 ensures that ‘indigenous groups gained status as permanent participants in
an international inter-governmental forum for addressing environmental concerns
affecting them and their ancestral lands’ (Metcalf, 2004).
The cultural integrity model has two aspects. The first emphasizes the environmental
closeness between environment and the traditional lifestyle of indigenous peoples, that
in fact defines and delimits their cultural presence as a people. The second aspect has
their traditional knowledge as its focus, and especially the value of that knowledge to
 THE RIGHTS OF INDIGENOUS PEOPLES 11

the global community. The first element is akin to the ecological model I proposed
earlier, and complementary to it, but the second aspect may be problematic.
Indigenous groups, and hence First Nations, appear not to be valued for themselves
in this aspect of the model, as much as for their instrumental value, as holders of specific,
commercially valuable knowledge (Halewood, 1999). When traditional knowledge is
viewed as ‘intellectual property’, then some may conclude with Dinah Shelton (1994),
that the best way to protect the environmental rights of indigenous peoples is through
intellectual property law. I believe that this emphasis is misplaced, as the traditional
approach of indigenous peoples to the land, for instance, is one of deep kinship and
respect. The land, all the creatures it supports and all its processes are not viewed as a
commodity.
Several articles of the Convention on the Rights of the Child24 are far more appro-
priate for the protection of cultural integrity, and the CRC is an instrument that has
been ratified by almost all of the global community (with the exception of the US and
Somalia). Article 30 states:

In those States in which ethnic, religious or linguistic minorities or persons of indigen-

ous origin exist, a child belonging to such a minority or who is indigenous, shall not
be denied the right, in community with other members of his or her group, to enjoy his
or her own culture, to profess and practice his or her own religion, or to use his or her
own language.

Here the respect for cultural integrity of children is easy to adapt to indigenous
teachings, especially the Seven Generations Rule. If indigenous peoples are to survive
as peoples, rather than being simply assimilated into the larger society in which they are
embedded, both their biological integrity and their cultural integrity must be treasured,
the latter not as a commodity but as a living tradition of great value, necessary to
guarantee their survival.

The self-determination model

self-determination is a powerful expression of the underlying tensions and contradic-

tions of international legal theory: it perfectly reflects the cyclical oscillation between
positivism and natural law, between an emphasis on consent, that is, voluntarism,
and an emphasis on binding objective legal principles, between a ‘statist’ and a com-
munitarian vision of world order (Cassese, 1995).

The second model is that of self-determination and appears to be the most firmly
entrenched in international law (Anaya, 2004). Self-determination is a pre-eminent
topic in UN law scholarship, hence it is – no doubt – the easiest model to defend (Gros
Espiell, 1980).
But even this model is not free of difficulties for several reasons. The very
concept of ‘peoples’ in this context is hard to define: limiting it to post-colonial
groups is insufficient; understanding the concept as including whole populations is
unnecessarily over-inclusive and too state centred. The third variant, based exclusively
on ‘ethnonationalist theory’ also ignores the existence of overlapping groups and
12 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

communities, all of which benefit from a definition based on human rights (Anaya,
2004). Perhaps the best approach may be found in the ‘Great Law of Peace’, as defined
by the Iroquois Confederacy (The Haudensosaunee):

The Great Law of Peace . . . describes a great tree with roots extending in the four
cardinal directions to all peoples of the earth; all are invited to follow the roots of the
tree and join the peaceful co-existence and cooperation under its great long leaves. The
Great Law of Peace promotes unity among individuals, families, clans, and nations
while upholding the integrity of diverse identities and spheres of autonomy. (Anaya,
2004, p102; see also Wallace, 1994)

Hence the right to self-determination does not necessarily mean that any and all
groups may have rights to independent statehood, although decolonization itself is
indeed based on self-determination. Essentially, self-determination requires governing
institutions where peoples ‘may live and develop freely on a continuous basis’ (Anaya,
2004).

The early background of self-determination

Despite the importance of the concept of self-determination, its clear historical
background and its consistent presence in international law, there appears to be no
comprehensive legal account of the concept. Anaya reports the difficulty of the concept
of self-determination when it seems to imply ‘a right of secession’:

This understanding has been reaffirmed in subsequent sessions of the Commission on

Human Rights Working Group even while a consensus on the precise formulation of
indigenous self-determination has remained elusive. (Anaya, 2004, p112)

Nor is the concept’s prominence of recent origin, which might explain this lacuna.
Indeed, Lenin was one of the original proponents to the international community,
proposing the importance of self-determination to support the freedom of peoples
(Cassese, 1995; Lenin, 1969).
Internal self-determination, given its origin, was seen as necessarily based on social-
ism. It had three aspects: first, it maintained that the ‘ethnic or national group’ could
freely decide their own destiny; second, internal self-determination was to be applied
after military action, to decide on the appropriate allocation of territories; and third and
most importantly, it was intended as the basis for anti-colonialism and for the liberation
of colonized territories (Cassese, 1995). For Lenin that goal was to be accomplished by
secession:

In the same way as mankind can arrive at the abolition of classes only through
a transition period of the dictatorship of the oppressed classes, it can arrive at the
inevitable integration of nations only through a transition period of the complete
emancipation of all oppressed nations, i.e. their freedom to secede. (Lenin, 1969)

In contrast, as Cassese points out, US President Woodrow Wilson viewed self-

determination as free choice and, ultimately, self-government (Cassese, 1995). This goal
was to be accomplished through ‘orderly’, progressive reforms, whereas Lenin called
 THE RIGHTS OF INDIGENOUS PEOPLES 13

for the immediate halt to colonial rule, thus undermining present power structures if
the right of minorities to separate from the state was admitted. Nevertheless, aside from
political principles, ‘State sovereignty and territorial integrity remained of paramount
importance’ (Cassese, 1995).
It is after the Second World War that these political principles emerged as inter-
national legal standards. At first the principles were used for Europe, hence the historical
development of the concept of self-determination, though interesting, is not relevant
to the topic of this work. At any rate, even in Europe, ‘self-determination was deemed
irrelevant where the people’s will was certain to run counter to the victors’ geopolitical,
economic and strategic interests’ (Cassese, 1995). This point is worth keeping in mind,
as ‘victors’ may be understood today to include ‘powerful states and corporations’, and
the same results will follow, as we shall see below.
In 1941, F. D. Roosevelt and Winston Churchill drafted the Atlantic Charter and
proclaimed self-determination as a general standard governing territorial changes,
as well as a principle concerning the free choice of rulers in every sovereign state
(internal self-determination) (Cassese, 1995; see also Grenville, 1974). But, although
self-determination (internal) is important, as it strengthens the ability of indigenous
groups to stand up to those who would exploit them, and perhaps provide them with a
stronger voice in the governance of the host country, it is necessary but not sufficient
to support indigenous rights. Even the UN Charter does not define either ‘external’
or ‘internal’ self-determination, and despite the wording of Article 1(2) and Article
55, the document does not impose hard and fast obligations on member states. Its
merit lies primarily in being the first multilateral treaty that actually includes ‘self-
determination’ (Article 1(2)) and addresses the question of the purpose of the United
Nations: ‘develop friendly relations among nations, based on respect for the principle
of equal rights and self-determination of peoples, and to take the appropriate measures
to strengthen universal peace’. Article 55(c) states the goals of promoting, inter alia,
‘universal respect for and observance of, human rights and fundamental freedoms for
all without distinction as to race, sex, language or religion’.
After the Second World War, both Eastern Europeans and developing countries
wanted to see Lenin’s thesis developed principally as anti-colonialism, whereas Western
countries were not immediately willing to accept that conception of self-determination
(Cassese, 1995).

From developing countries’ approach to self-determination to the

impact of neo-colonialism
For developing countries self-determination meant three things: (1) the fight against
colonialism and racism; (2) the struggle against the domination of any alien oppressor
illegally occupying a territory (an idea that was fostered largely due to the insistence of
the Arab states after 1967 with the case of Palestine in mind); (3) the struggle against
all manifestations of neocolonialism and in particular the exploitation by alien powers
of the natural resources of developing countries. (Cassese, 1995)

The 1966 Covenants on Civil and Political Rights, and on Economic Social and
Cultural Rights, are clear on the topic of both the political and economic aspects of
self-determination, as the common Article 1 states:
14 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

All peoples have the right to self-determination; by virtue of that right they freely deter-
mine their political status, and freely pursue their economic, social and cultural
development.
In no case may a people be deprived of its own means of subsistence.25

These rights appear to be unequivocal, and they stand unless a ‘public emergency
which threatens the life of the nation’ and which is proclaimed officially (Article 4(1)),
permits a state to disregard the rights. Yet many cases brought before the courts by
indigenous peoples groups are deemed ‘not to rise to the level of the law of nations’
(see Chapter 5). Cassese (1995) points out that ‘The problem lies not in understanding
the nature of the right, but in ensuring State compliance’.
In contrast, it is clear that the collaboration between states and multinational
corporations (MNCs) violates Article 1(2) of the covenants, and the added presence of
‘complicity’ between these actors when the deprivation of necessary resources results
in genocide, demonstrates yet another criminal aspect of these cases in international
law (see Chapter 7). At the present time, however, at best it is possible for dispossessed
people to seek compensation, totally ignoring the fact that many of the harms perpe-
trated against them are simply incompensable (see Article 47 of the ICCPR and Article
25 of the ICESCR, both of which reiterate, ‘the inherent right of all peoples to enjoy
and utilize fully and freely their natural wealth and resources’).
Since 1945 and the proclamation of the UN Charter, self-determination, primarily
in its internal form as self-government, has been accepted in law, but it is primarily a
‘goal’, with no specific obligation imposed on states to accept it, even in this weakened
form (Cassese, 1995). Nevertheless in 1971, the International Court of Justice gave
an Advisory Opinion on Namibia. The UN set up Namibia in 1946 as a separate state
‘under the direct responsibility of the United Nations’, because South Africa refused to
acknowledge it as a separate territory with a separate, freely elected government (Res.
435/1978 of 29 September 1978; Namibia’s independence was declared on 21 March
1990) (see also Schmidt-Jortzig, 1991).
But our main concern is with the disenfranchised victims of globalized ‘develop-
ment’, where resources, lands, water and way of life are taken and destroyed. The states
wherein these groups live, in general, do not respect the law of self-determination, nor
the mandates of international law regarding indigenous rights to their own resources.
Nor is the principle of territorial integrity fully appreciated in its quantitative and
qualitative aspects (see Para. 6 of the UN Resolution 1514 (XV): ‘Any attempt aimed at
partial or total disruption of the national unity and territorial integrity of a country is
incompatible with the purposes and principles of the Charter of the United Nations’).
The problem becomes more complex when one tries to extend the argument for
interference with self-determination to encompass the standpoint of economic ‘neo-
colonialism’. In 1977, the Geneva Protocol to the four 1949 Geneva Conventions on War
Victims, Article 1, ‘supports the thesis that the right to self-determination is considered
to arise when a State dominates the people in a foreign territory using military means’
(Cassese, 1995). In that document the phrase ‘alien occupation’, the meaning of which
lends itself less easily to an interpretation linked to economic development, militates
against the interpretation I propose, but ‘It should be added that in the United Nations
a minority of States – Mexico, Afghanistan, Iraq and Pakistan – considered economic
exploitation of a foreign State (chiefly in the form of neo-colonialism) a breach of self-
determination’ (Cassese, 1995).
 THE RIGHTS OF INDIGENOUS PEOPLES 15

At best what is addressed here is the issue of economic interference in the affairs
of a separate state, whereas our concern is the exploitation and domination of specific
peoples. A further question remains the definition of indigenous peoples and land-
based minorities in this regard, and the possible inclusion of ‘local people’ in that
category, especially those based in the African continent.

Decolonization, self-determination, natural resources and indigenous peoples

The term ‘indigenous’ refers to those who, while retaining totally or partially their
traditional languages, institutions and lifestyles which distinguish them from the
dominant society, occupied a particular area before other population groups arrived.
(Tomei and Swepston, 1996)

There are two major problems that will have to be considered in relation to this work.
First is the question: who are ‘indigenous peoples’? This issue is be explored in the
first two chapters of this work. Second is the grave problem of the evaluation of the
well-documented gross violations of human rights, under the categories of ‘neo-
colonization’ or ‘second conquest’, in a way that lays bare their insidious and racist
aspects, that masquerade presently as ‘development’ or ‘trade’, both well protected
under international law.
S. K. Date-Bah (1998) considers some of these questions from an ‘African perspect-
ive’. It is clear that the local peoples in the African and Asian continents may lack the
protections (weak as they are), that are available to indigenous peoples, despite their
long history in certain areas. Present clear-cut definitions might exclude too many people
affected by corporate ‘development’. The major difficulty, however, remains the need
to consider that vulnerable people suffer through economic domination, exploitation
and deprivation of resources. These deprivations are promoted and protected as ‘free
trade’ or simply ‘economic development’, imposed with or without outright force, and
sometimes even through the force of the law itself.
The argument I want to propose and develop is that the eco-footprint of Western
developed countries is the foundation of the ‘second conquest’, and a direct attack on
both the right to survival and the right to self-determination of indigenous and local
populations. But, if ‘decolonization’ is now a major principle of international law, and
a jus cogens norm, then the elimination of the practices that impose the precarious
conditions forced on local and indigenous peoples by corporate actors, with the
cooperation of state governments and the support of international trade laws, should
represent an obligation erga omnes on legal individuals as well as states.

Further critiques of the self-determination model

Self-determination may well include ‘free’ developments that run contrary to both
moral development or just institutions, or even ecologically sound ones. Even the
collective will of the people may be based on misinformation and falsehoods, and may
lead to conditions that do not represent the best interests of all, although the decisions
leading to these conditions may be the result of free self-determination.
Paul Gilbert (1994) discusses self-determination in the context of ethnicity
and national identity: ‘I suggest then, that the proper grounds for a group’s claim
16 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

to statehood, are that it is living or could live a decent communal life which would
be protected or enhanced by statehood.’ For Gilbert, therefore, it is not simply a
voluntarist model of self-determination that is sufficient to establish a group as entirely
separate, ‘not [only] what people desire, but what is desirable for them, that generates
that right’, although Gilbert (1994) acknowledges that such a group will be in the best
position to judge what is its most desirable choice. This is indeed what Anaya (2004)
concludes, as he cites Ian Brownlie (2003) on that topic: for people the best option
may simply be to live in a political order that enables them to live as a distinct group,
with a different character, and ‘to have their character reflected in the institutions of
government under which it lives’.
A non-controversial definition proposed by Metcalf is closer to the environmental
requirements of indigenous peoples in general, and First Nations in particular:

. . . this model recognizes a limited form of self-determination in which indigenous

peoples have internal sovereignty rights over their own cultural, social, and economic
development, including the exclusive ability to control and manage indigenous lands
and resources. (Metcalf, 2004)

This definition does not attempt to redefine ‘peoples’, but its meaning is clear regarding
the model and the sort of ‘peoples’ Metcalf intends to cover within this model. In
addition, this definition is consonant with the UN Draft Declaration on the Rights of
Indigenous Peoples, which includes one of the strongest statements of the rights of
indigenous peoples in the context of international law.26
At first sight it may seem as though the emphasis on environmental land issues
makes this model quite similar to the ‘cultural integrity’ model discussed above. But in
this model, indigenous peoples’ rights to their lands are based on their rights to control
their own social life and development. A troubling corollary of this approach is that
there is, at least in principle, no necessary connection between a group’s free choices
and any ecologically sound policy. However, Article 39 of the UN Draft Declaration
states:

Indigenous peoples have the right to have access to and prompt decisions through
mutually acceptable and fair procedures for the resolution of conflicts and disputes
with States, as well as to effective remedies for all infringements of their individual and
collective rights. Such a decision shall take into consideration the customs, traditions,
rules, and legal system of the indigenous peoples concerned.

Thus, at least this article recognizes the essential presence of ‘tradition’ and ‘customs’,
although it stops short of making the presence of such traditional choices mandatory
in order to legitimize an indigenous people’s or First Nation’s choices.
Perhaps this is the most disturbing aspect of this model. If self-determination is the
ultimate value, aside from any other consideration, then in theory (although most likely
not in practice), an aboriginal group could decide to rent their land to a Monsanto
affiliate, or a chemical company or any other hazardous industry, as long as it was the
general will of the people to do so.
Therefore, although all three models include positive aspects for First Nations,
it seems that the third model, or the biological/ecological integrity model proposed
 THE RIGHTS OF INDIGENOUS PEOPLES 17

in the previous section might be the best choice, on its own or in conjunction with
either of the other two models, to provide and ensure a solid and sustainable ecological
foundation.

INDIGENOUS PEOPLES AND ECO-FOOTPRINT CRIME

The previous sections emphasized the interdependence between the basic/survival

rights of indigenous peoples, their biological integrity and the ecological integrity of
their lands. But that integrity is constantly under attack through the economic activities
of developed countries that view the use of aboriginal lands and peoples as their right,
with little or no consideration for the gravity of the consequences that ensue.
I have described these consequences as ‘eco-footprint harms’ and even ‘crimes’.
Thus the first issue to consider is whether any industrial operation in the developing
world, and in the vicinity of indigenous populations, is to be taken as routinely allow-
able. The problem is not only the ‘accidents’ that can be expected regularly, such
as that at Bhopal, but also the day-to-day operation of these activities that under the
present legal regimes is just as disastrous (consider for instance Ogoniland, Nigeria,
in this regard). Note that I am referring to them as ‘accidents’ not because I have
any indication, or belief that there was any criminal intent, or mens rea involved. But
it seems clear that, even in technologically advanced countries, a certain amount of
technical failures/human error must be expected. Bluntly, the operation of chemical
industries and related corporate activities, even in the most advanced countries and
under the optimal circumstances found in affluent Western countries, is not safe for all
stakeholders, even when all possible precautions, legislated by the regulatory regimes
of Western nations, are implemented.
Most of all, these operations are unsafe for the ecosystems that are affected by
their products, even under ‘ideal’ conditions. But this is by no means their only
effect. Any pesticide leaves residues not only in the fields, but also in all foods that
are not organically grown. The increasing rates of diseases, such as cancers in both
the developed and the developing world, attest to the accuracy of medical research
(Epstein, 1978) and most of all that of the WHO. There the effects of routinely used
chemicals on the most vulnerable of human beings, the children, are discussed.
Hence it must be acknowledged that industries that have produced some comforts
and advantages for mankind in general, and huge profits to many, have also been a
dangerous and insidiously harmful presence in the lives of almost everyone.
Chemical companies’ immense profits are the result of their worldwide marketing
drives. But the ‘side effects’ of these operations affect the life and health of too many
to be simply dismissed as ‘externalities’ or the cost of doing business. Royal Dutch Shell
has been accused of complicity in acts of genocide, crimes against humanity, multiple
rapes and assaults on behalf of the military government of Nigeria (see Appendix 2),
and yet their alleged eco-crimes are not even factored in the Alien Torts Claims Act
(ATCA) indictments. The destruction of the environment also destroyed the Ogoni
people’s way of life, and their present and future health.
In this regard, it might be instructive to consider the Statute of the International
Criminal Court,27 which, unlike the Nuremberg Charter, envisions the possibility of
18 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

internal crimes against humanity, committed by individuals, not states (Article 7),
although the environment as such is only spoken of in connection with situations of
armed conflict. Article 7(h) refers, for instance, to ‘the crime of apartheid’, a crime
that may be politically motivated but that is not exclusively or even primarily a ‘war
crime’.
I have argued that even negligent harms of the magnitude of these industrial
disasters should be included as ‘crimes against humanity’ (Westra, 2004a). I am well
aware, however, that we are considering lex ferenda, at best. Perhaps the best hope to
see these crimes indicted and properly categorized may eventually be found in the
definition of Article 5(d), in the crime of ‘aggression’ (under the provisions of Article
121, and 123), as its full extent is, as yet, undefined. Similarly, it is not too far-fetched,
I believe, to acknowledge with the language of the ‘Preamble’ the presence of erga
omnes obligations, based on jus cogens norms, as applicable to all peoples, as they are
in the worst crimes:

Recognizing that such grave crimes threaten the peace, security and well-being of
the world. Affirming that the most serious crimes of concern to the international
community as a whole must not go unpunished and that their effective prosecution
must be ensured by taking measures at the national level and by enhancing
international cooperation.

When one considers the seriousness and the pervasiveness of the harms produced by
the combination of corporate ‘freedom’ to pursue its goals with few restraints, on one
hand, and the primacy of trade ‘efficiency’ (Heath, 2001), on the other, we discover
that all human rights are at stake. Even, as Jennifer Downs argues, ‘first generation
rights’ (Downs, 1993), which are codified in the International Covenant on Civil and
Political Rights,28 while second generation rights refer to the International Covenant
on Economic, Social and Cultural Rights29 are under fire. Neither first nor second
generation rights, ever mention health, either human or ecological, yet according to
the ‘Preamble’ of the latter: ‘The ideal of free human beings enjoying freedom from
fear and want can only be achieved if conditions are created whereby everyone may
enjoy his economic, social and cultural rights as well as his civil and political rights.’
Freedom from ‘fear and want’ should include conditions of life that start with
the ‘basic rights’ to ‘subsistence’ and ‘security’, as Shue describes them (Shue, 1996),
that must include health and normal function, as well as a safe habitat able to support
both. Below I return to the possibility of establishing in law third generation rights or
‘solidarity rights’ (Downs, 1993). But the argument proposed here is clearly supported
by the Ogoni case, the case in Bhopal and in some measure, several other cases.

The many faces of eco-footprint crime

Before leaving the topic of eco-footprint crime, we need to move beyond examples
in order to better understand its meaning and the different aspects under which it
manifests itself. These various ‘faces’ are really masks, often bland and even benign
manifestations, representing jobs, economic possibilities and even progress.
To understand eco-footprint crime better, the first thing to note is that the harmful/
criminal aspects of eco-footprints can be both direct and indirect. For instance, in the
 THE RIGHTS OF INDIGENOUS PEOPLES 19

example of Ogoniland, there are direct physical harms arising from the oil extraction
operations and we noted the direct impact on the health and the life of the local
communities. But there are also at least two kinds of indirect impacts, no less heinous:
first, the impact on the community’s habitat, the land and water upon which they have
depended for generations for their subsistence and survival; and second, the impact of
support for the extraction operated by the Sani Abbacha military dictatorship, with the
subsequent accusations of suppression of protests, and the rapes, murders and other
attacks upon the populations.
The direct effects of the Western eco-footprint, therefore, do not only result in
direct physical harms, but also, by their presence, produce indirect harms beyond the
easily observed material harms and damages to local environment and public health.
Indirect harms may be far more subtle. They include supporting racism, engaging in
illegal business practices, and supporting industrial activities through the silencing of
protests and other human rights violations.
Such cases include both direct and indirect material harms. The activities of Royal
Dutch Shell Oil were directly harmful to the health of the inhabitants, and they also
eliminated the basis for the population’s survival as they made it impossible for the Ogoni
to continue in their traditional lifestyles. Eventually, the strongest representatives of the
protests, Ken Saro-Wiwa and the rest of the Ogoni Nine were indicted and murdered
precisely for speaking out against the operations of Shell (see Appendix 2).
A glance at the recent jurisprudence under ATCA30 indicates that intimidation,
attacks and even murders occur even when the corporate entity responsible and intent
on promoting and protecting the efficient operations of its business is not intrinsically
harmful in its products or processes, as in the Sinaltral v. Coca Cola case.31 Most of
these eco-footprint harms are inflicted by a Northern corporate organization on a
vulnerable population in the South or on an indigenous people, where regulatory
regimes protecting human rights are not well entrenched and where impoverished
governments are greedy for the economic benefits these organizations will bring. Hence,
it is systematic exploitation of those who cannot defend themselves that characterizes
the criminality of the harms imposed.
In conclusion, the biological/ecological integrity model I proposed is the best
possible antidote against eco-footprint crime. If the rights of indigenous peoples are
based, first, on their rights to biological integrity and natural function; and second,
these rights cannot be separated from the protection of the ecological integrity of
their lands; then third, entrenching such rights would limit the freedom of Western
industrial operations to commit crimes.
The special vulnerability of such peoples is not only based on their poverty and
their remoteness from the centres of power, but also on the fact that most such groups
are not able to move freely from their present locations, regardless of the harmful
conditions to which they might be exposed. Hence, their situation is truly hazardous if
the rights I recommend are not legislated. In general, their situation may be compared
to that existing in the US for many African Americans, whose neighbourhoods are
often established through historical links to Jim Crow laws (Westra and Lawson, 2001,
pp113–140), or simply defined by industrial brownfields. (Brownfields are areas that
have been used for dumps or unsafe business operations. They are deemed to be
appropriate locations for more of the same practices than are wealthier and relatively
cleaner neighbourhoods.)
20 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Indigenous peoples and ‘local peoples’ as land-based minorities

There is a case for arguing that the local communities as a whole should be given
the benefit of the rights granted with a view to compensating local residents for the
disruptions, inconvenience or other adverse effects resulting from the exploitation of
natural resources in their locality. (Date-Bah, 1998)

As we saw, the exposures to which local communities are condemned are far more than
‘disruption’ and ‘inconvenience’. Hence the importance of ensuring that even those
who are not ‘indigenous’ – in the accepted sense of a people who are descendants of the
‘pre-invasion inhabitants of lands now dominated by others’ (Date-Bah, 1998) – have
their rights protected. But many groups have not been part of an imperial conquest:
the Inuit of the Arctic, the Aborigines of Australia, the Maori of New Zealand and tribal
peoples of Africa, such as the Ashanti, the Yoruba, the Masai and others. Such groups
can and should be considered indigenous in relation to the law (Date-Bah, 1998; see
also Asiema and Situma, 1994).
The unifying concept for all these disparate groups is their land/culture connection.
All these peoples: first, view themselves as a distinct people; second, have inhabited
the same territory from time immemorial; third, possess a common language, culture
and religion; fourth, view themselves as ‘custodians’ of their environment; fifth, define
themselves, at least in part, through the habitat that provides for them; sixth, have
tribal and communal forms of social relations and resource management, often based
on directions from their elders; seventh, have an identity based upon their lands; and
eighth, view the ecosystems they inhabit and have inhabited traditionally as religiously
significant (Asiema and Situma, 1994).
This last aspect of their common characteristics is particularly relevant: they ‘view
themselves as the world’s most experienced environmentalists with a role to play in
environmental protection and conservation, especially of the ecosystem they have
traditionally inhabited’ (Asiema and Situma, 1994). This vital environmental role, only
performed by land-based, aboriginal groups, together with their location, poverty and
powerlessness, makes it imperative that we extend the protection they need, without
resorting to semantics to distinguish ‘local’ from other ‘indigenous peoples’.
Perhaps the addition of ‘land-based’ to the expression ‘local’, may help to dis-
tinguish these vulnerable people from other minorities whose situation may well be com-
pletely or partially different. The international legal instruments intended to protect
defined indigenous groups are neither strong nor enforceable. Nevertheless, their very
existence at least helps to frame and to declare their rights openly. At any rate, it would
seem appropriate to ensure that all those who share most of the characteristics listed
should be protected by the same laws, limited though they are.
The major problems that threaten indigenous and land-based minorities are
essentially two sides of the same coin: their poverty and powerlessness renders them
highly vulnerable to the ‘development’ that brings them a high dose of the hazardous
exposure that their very poverty and isolation had helped them avoid. Hence they are
the most vulnerable to climate change (Brown, 2002; Lovelock, 2006; Revkin, 2005).
In addition, when their isolation has been breached, the full thrust of unchecked
exposures renders their conditions close to untenable (Lyon, 2002).
 THE RIGHTS OF INDIGENOUS PEOPLES 21

The full import of North/South interaction after decolonization, the nefarious

role of the International Monetary Fund (IMF), the World Bank Group and the World
Trade Organization (WTO) is reviewed below and discussed in more detail in Chapter 4
in the context of the impact of globalization and economic ‘collateralism’. However, for
now, the expression ‘indigenous peoples’ or ‘indigenous groups’, should be understood
to include all local land-based minorities in the South.

NOTES

1 Principle 22, Rio Declarations on Environment and Development.

2 UNDHR, GA Res.217A (III), UNCA at A/810, 10 December 1948.
3 Stockholm Declaration on the Human Environment, adopted 16 June 1972, UN Doc. A/
CONF.48/141 Rev.l at 3(1973) Principle 1, 11 ILM 1416(1972).
4 GA Res. 44/25, 44 UNGA Supp. (No. 49), UN Doc. A/44/49.
5 ILO, 27 June 1989, Art.l(2) 28 ILM 138 (1989).
6 The African [Banjul] Charter on Human and Peoples Rights adopted 27 June 1981, Art.
24,21 ILM 58(1982).
7 See for instance Minors Oposa v. Secretary of the Dept. of Environmental and Natural Resources
(Philippines 1993), 33 ILM 173 (1994).
8 ILO Convention on Indigenous and Tribal Peoples, No. 169 of 1989, International Labour
Conference, (entered into force 5 September 1991).
9 See also a UN document (UN Sub-Commission on Prevention of Discrimination and Protection of
Minorities) that has the following definition: ‘Indigenous communities, peoples and nations
are those which, having a historical continuity with pre-invasion and pre-colonial societies
that developed on their territories, consider themselves distinct from other sectors of the
societies now prevailing in those territories, or parts of them. They form at present non-
dominant sectors of society and are determined to preserve, develop and transmit to future
generations their ancestral territories, and their ethnic identity as the basis of their continued
existence as peoples, in accordance with their own cultural patterns, social institutions and
legal systems’.
10 5 June 1992, 1760 UNTS 79, Can.T.S. 1993 No. 24, 31 ILM 818, henceforth Biodiversity
Convention.
11 Thomas Aquinas termed any law that did not promote and protect the interests of all citizens
a form of violence by a sovereign or law-maker; as such it was the citizen’s obligation not only
not to obey it, but also to actively oppose it.
12 See for instance Chapter 10 and the Earth Charter (www.globalecointegrity.net).
13 See also Report of Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of
Indigenous Peoples, M Rodolfo Stavenhagen, submitted pursuant to Commission res.2001/57,
UN Doc. E/CN.4/2002/97, paras. 102, 109, 103.
14 CERD Report (1993): UNGAOR, 47th Sess. Supp. No. 18 Doc. A/47/18.
15 CERD Report (1992) 45 CERD Report (1992) 45.
16 Report on the Situation of Human Rights in Ecuador OAS Doc. OEA/Ser.L/V/II.96, Doc. 10, rev.
1 (1997), Chapter VII, on ‘The human rights situation of the inhabitants of the Ecuadorian
interior affected by development activities’.
17 ILO No. 169.
18 See also WHO-IPCS (2002) ‘Global assessment of the state-of-the-science of endocrine
disruptors’, (WHO/IPCS/EDC/02.0).
22 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

19 See also the ATCA case, Wiwa v. Royal Shell Petroleum et al, 226 F. 3d 88 (2d Cir. 2000).
20 Codified for instance in the Proposed American Declaration on the Rights of Indigenous Peoples
(1997), OR OEA/Ser./L/V/II.95 Doc. 6 [OAS Draft Declaration].
21 Convention on Biological Diversity, 5 June 1992, 17 UNTS 79, Can.T.S. 1993 No. 24,31 ILM 818
[Biodiversity Convention].
22 14 October 1994, UNTS 3, Can. T.S. 1996, No. 51, 33 ILM 1332 [Desertification Con-
vention].
23 Declaration on the Establishment of the Arctic Council, Canada, Denmark, Finland, Iceland,
Norway, Russian Federation, Sweden and the United States, 19 September 1996, 35 ILM
1387 [Arctic Council Declaration].
24 CRC, GA Res. 44/25, annex 44, UN GAOR Supp. (No. 49), UN Doc. A/44/49 (1989).
25 ICESCR, UN Doc. A/6316 (1996) 993 UNTS 3; ICCPR, UN Doc. A/6316 (1996) 991 UNTS
171.
26 Resolution 1994/45, Annex 26, 1994, adopted without changes from the Report of the Working
Group on Indigenous Populations on its Eleventh Session, UN ESCOR, Commission on Human
Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 45th
Sess., Agenda Item 14, UN Doc. E/CN.4/Sub/1993/29, Annex l.
27 Rome Statute, in force 12 July 2002.
28 GA Res. 2200, UN GADR, 21st Sess., Supp. No. 16, UN Doc. A/6316(1966).
29 GA Res. 2200, UN GADR, 21st Sess., Supp. No. 16, UN Doc. A/6316 (1966).
30 Alien Torts Claims Act, 28 USC 1350 (2000).
31 United States District Court S.D. Florida, Sinaltral the Estate of Isidro Sequndo Gil, Plaintiffs v.
Coca Cola Company et. al, 256 F. Supp. 2d 1345.
 CHAPTER 2

Cultural Integrity and Ecological Integrity:

The Interface and International Law

INTRODUCTION

The argument of the previous chapter hinged on the specific role that land, waters
and air play not only in the cultural identity, but also on the survival and basic rights
of indigenous peoples everywhere. Castellino and Walsh’s work (2005) emphasizes the
relation between the ‘right to land and to self-determination’. There are several points
of tension embedded within this seemingly unexceptional paragraph. For instance,
‘the right to land’ in most cases does not entail the right to a specific territory but
only a certain territorial area embedded within a state. This condition, renders many
of indigenous peoples’ rights conditional upon the wider national entity wherein they
reside, plus the status of the latter within the international community. ‘International
society consisting of individuals and groups existing within sovereign states ostensibly
gain legitimacy and locus standi in international law by virtue of being a part of a
sovereign state’ (Castellino and Walsh, 2005).
In addition, as noted earlier, there is also a conflict between the presence and
enforcement of human rights and state sovereignty itself: it is individuals and groups that
often require protection in and from the state. Speaking of the World Social Forum,
De Sousa Santos (2005) points out the need for a ‘subaltern cosmopolitan legality’
that relies both on political strategy and legal components, especially relevant for
many exploited and oppressed groups, including indigenous peoples: ‘whenever law is
resorted to, it is not necessarily the nation-state law; it may be the local unofficial law as
well as international or transnational law’. In fact, for the realization of most indigenous
peoples’ rights, state is both an ‘enemy’ and a ‘potential ally’, hence indigenous peoples’
rights are at one and the same time part of both a national and a global struggle (De
Sousa Santos, 2005).

TERRITORIAL RIGHTS AND STATE SOVEREIGNTY:

TERRA NULLIUS OR UTI POSSIDETIS

In many ways indigenous peoples’ lands conform to the definition of a state, with its
inherent rights to sovereignty.1 ‘The state as a person of international law should possess
24 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

the following qualifications: (a) a permanent population; (b) a defined territory; (c)
government; and (d) capacity to enter into relations with other states’ (Castellino and
Walsh, 2005).2
Aside from the problematic aspects of considering states as ‘persons’ (of which
more in Chapter 3 and in Chapter 1), even the final clause fits to some extent because
indigenous peoples can, minimally, enter into relations with the state wherein they are
embedded, and conclude treaties with it, as tribes have done in the US and First Nations
are doing in Canada. Nevertheless the presence of indigenous peoples has helped
develop not only collective rights, beyond the rights of individuals, but also contributed
significantly to what Anaya terms, ‘the softening of State sovereignty’ (2001).3
Historically, the right to land or territory was based on either of two major
approaches in existence since their introduction in Roman law: uti possidetis or terra
nullius (Anaya, 2001) The latter had been used by colonizers on their arrival at a new
continent, although there were certainly inhabitants living from time immemorial in
the ‘discovered lands’. But these inhabitants failed ‘to organize themselves into units
“recognizable” to colonists’ (Castellino and Walsh, 2005), hence the tribes who lived on
those lands were considered ‘uncivilized’. This judgement left indigenous peoples and
tribes unprotected from the greed and aggression of the imperial powers of the time
(Castellino and Walsh, 2005). The international legal position on what constitutes terra
nullius can be found in the Western Sahara case (1975), where the indigenous Saharan
tribes were replaced by King Hassan and Morocco after Spain’s departure (Franck,
1978). In general, the applications of this doctrine simply represent cases of racism in
each instance.
In contrast, the doctrine of uti possidetis juris appears to be a better choice for the
protection of the present stakeholder occupying a specific area. The current use of this
doctrine is part of a general movement in international law towards the acceptance of
‘ethnic self-determination’, and it leads to an effort to reassess what constitutes a ‘people’
and whether being a people may permit secession from a state. Examples include the
events that followed the disintegration of Yugoslavia.4 In the case of the former Yugoslavia,
however, this approach led to a confirmation of the legal status of ‘units’ or the former
republics that constituted Yugoslavia, rather than of any specific ethnic/indigenous
group within the borders of the states thus protected under the doctrine of uti possidetis
juris. The international community was thus intent on recognizing borders and self-
determination for the ‘whole people’ of those states (Pentassuglia, 2002). This recent
result shows that, although ‘the concept of people has been implicitly described, for
legal purposes, by referring to the territorial unit of self-determination’ (Pentassuglia,
2002), it follows upon the understanding of ‘colonial people’ as ‘the whole people in a
non-self governing territory’ (UN Charter, Article 73). In fact:

. . . the typical territorial connotation of people is to be viewed in connection with the

doctrine of sovereignty and its fundamental corollaries protective of state boundaries
and political unity (against claims by individual groups defined by ethnicity or
other element). (Pentassuglia, 2002, emphasis added)

It is worth noting that because of this emphasis on ‘whole people’, the right to secession
is not even envisioned for distinct peoples, for example, as the Canadian Supreme
Court decided for the people of Quebec.5 Hence, although it is increasingly obvious
 CULTURAL INTEGRITY & ECOLOGICAL INTEGRITY 25

that in any state ‘the notion of “people” is no longer homogeneous’ (Pellet, 1992),
democratic self-determination remains internal to the state (or to the newly formed
unit), without involving the ethnicity of disparate groups.
The full translation of the doctrine of uti possidetis ita possidetis (based on Roman
civil law) means ‘as you possess, so you possess’. Clearly the doctrine is of little use in
territorial disputes because the territory is treated ‘as the de facto as well as de jure legal
possession of the current occupier’ (Castellino and Walsh, 2005). It is a useful principle
to employ after a dispute or a conflict in order to define the territorial boundaries
of a newly formed state. The International Court of Justice explains the effect of this
doctrine in the Burkina Faso v. Republic of Mali case:

. . . the essence of the principle lies in its primary aim of securing respect for the territorial
boundaries at the moment when independence is achieved. Such territorial boundaries
may be no more than delimitations between different administration divisions or
colonies all subject to the same sovereign. In that case, the application of the principle
of uti possidetis resulted in administrative boundaries being transformed into inter-
national frontiers in the full sense of the term.6

But all boundaries are artificial, in the sense that they do not necessarily contain a
specific ethnic/indigenous group (Boggs, 1980). Hence, before acknowledging a
specific critical date upon which the definition of a territory’s boundaries was to be
established beyond dispute, it would be necessary to examine the validity of such a rigid
point of reference in order not to ratify the ‘rights’ of colonizer against indigenous
communities (Castellino, 2005).
Nevertheless, had this doctrine been adopted from the start, that is before coloniza-
tion, it would have been sufficient to protect indigenous peoples’ title to the land where
they lived, better than the doctrine of terra nullius could. The latter acknowledged
the presence of indigenous peoples on certain lands, but viewed this occurrence as
insufficient to ensure their possession of the territory.

TERRITORY AND TERRITORIAL INTEGRITY

Whatever the basis of indigenous peoples’ entitlement to a specific territory, enclosed

within certain borders according to history or to a treaty, the condition of the territory is at
least as important as its boundaries for the health and the well-being of the inhabitants.
International law protects the integrity of territories, although the expression refers to
the borders or perhaps to the possibility of specific quantifiable harms. The classic case
of protecting one country’s territory from the harms arising from another country’s
industrial operations is Trail Smelter.7 But in international law, perhaps the most cited
and most influential case involves the legality of nuclear tests.

Nuclear weapons and the opinion of the World Court

The International Court of Justice has issued an advisory opinion of great weight on
the legality of nuclear weaponry. It is the first time ever that an international tribunal
26 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

has directly addressed this gravest universal threat to the future of humanity (Falk,
1998).

Before considering the International Court’s opinion on this question, it is best to

consider the context against which these weapons are developed and the international
pleadings of Australia and New Zealand as part of that context. Nuclear power, in all
its applications, represents one of the most hazardous products and processes on Earth
(Shrader-Frechette, 1982). As such it is one of the clearest cases demanding immediate
concern and legal action on several fronts: it is hazardous in the mining of its required
materials and throughout the ‘fuel cycle’ (Draper, 1991; Shrader-Frechette, 1982); it
is hazardous in all its uses, not only as a weapon (Shrader-Frechette, 1982); and it is
especially hazardous in its disposal phase (Shrader-Frechette, 1993). Nuclear power is
indeed ‘risky business’ from cradle to grave (Draper, 1991), and the results of its impact
exhibit all the characteristic harms this work confronts: immediate harm to human
health, delayed threats to health, life and normal function, and long-term harm to the
‘diversity of life’ (Wilson, 1992) and to its very survival, through direct and indirect
(genetic) impacts (Colborn et al, 1996). Finally it is extremely and unpredictably
hazardous through its disposal (Goodwin, 1980; Shrader-Frechette, 1993).
On the question of the legality of atmospheric nuclear testing, Australia and New
Zealand instituted separate proceedings against France before the International Court
(Ragazzi, 1997). Atmospheric nuclear tests clearly spread unwarranted radioactive
material indiscriminately to any and all countries adjacent to the tests. Even France,
who wanted to test, did not attempt to conduct such tests over its own soil. France must
have recognized, as they defended their strategy, that the atmospheric tests were neither
desirable nor risk-free. France claimed it needed to perform these ‘last tests’ in order
to end atmospheric testing altogether. This declaration ensured that ‘the International
Court did not pronounce either jurisdiction or the merits of the cases, relying on the
obligation undertaken explicitly by the French government’.8
But the importance of the case does not lie with the majority view expressed above.
Rather, the four judges who wrote a forceful dissent (Judges Onyeama, Dillard, Jiménez
de Arechago and Sir Humphrey Waldock) asserted that the ‘object of the applicant
States was to obtain a declaratory judgment’ (Ragazzi, 1997) instead.9 The pleadings in
these cases show that the intentions of the states were not simply to stop France on this
single occasion, but to make a universal point of principle. France, according to these
pleadings, had violated important rights: the protection of New Zealand’s sovereign
rights to be free of radionuclear fallout and contamination. This was described as a
right that belonged to ‘all members of the international community’ (Ragazzi, 1997).
Hence, especially for New Zealand, the obligation was erga omnes, and all states
possessed correlative rights of protection. The fact that France (with China) had not
been a signatory to the Treaty Banning Nuclear Weapons Tests in the Atmosphere, in
Outer Space and Under Water (Moscow Treaty, 1963) was not relevant (Hossain and
Chowdhury, 1984). Nevertheless, the additional fact that 104 states did become parties
to the Moscow Treaty over the next ten years enabled Australia and New Zealand to
argue that ‘customary rule had gradually emerged’ in the international community.
New Zealand could also assert at the same time the erga omnes character of France’s
obligation (Ragazzi, 1997). Ragazzi ‘infers’ that the obligation is indeed erga omnes from
the following arguments found in the pleadings:
 CULTURAL INTEGRITY & ECOLOGICAL INTEGRITY 27

. . . the obligation

(a) is stated in ‘absolute’ terms (the dictum refers to ‘absolute’ and ‘unqualified’
obligations);
(b) reflects a ‘community interest’ (the dictum refers to the ‘concern of all States’);
(c) protects fundamental goods, namely ‘the security, life and health of all peoples’
and the ‘global environment’ (security, life and health are also some of the basic
goods protected by the four examples of obligations erga omnes given in the
dictum);
(d) has a prohibitory content (like the four examples given in the dictum);
(e) is not owed to particular States, but to the ‘international community’ (the dictum
refers to the ‘international community as a whole’); and
(f) its correlative rights of protection ‘are held in common’ (the dictum provides that
‘all States can be held to have a legal interest’ in the protection of obligations erga
omnes). (Ragazzi, 1997)

The ‘dictum’ here referred to is the one found in the Barcelona Traction case. This
argument is of foundational importance because it introduces the principled approach
sought later by the WHO in opposing the use of nuclear weapons.
The WHO submitted a question requesting an advisory opinion on ‘the legality of
the use by a state of nuclear weapons in an armed conflict’, to the International Court
of Justice, as follows: ‘In view of the health and environmental effects would the use of
nuclear weapons by a state in war or other armed conflict be a breach of its obligations
under international law including the WHO constitution?’10 Several states argued that
the question went beyond ‘the WHO’s proper activities’. The court added (para. 10)
that:

. . . three conditions must be satisfied in order to found the jurisdiction of the Court
when a request for an advisory opinion is submitted to it by a specialized agency: the
agency requesting the opinion must be duly authorized, under the Charter, to request
opinions from the Court; the opinion requested must be on a legal question; and this
question must be one arising within the scope of the activities of the requesting agency.
(Kindred et al, 2000)

Despite the interest and the competence of the WHO to assess and evaluate the health
effects of the use of nuclear weapons, at first the court judged that the final condition
had not been met because the WHO was not a state able to wage a war or enter into a
conflict. Hence the UN General Assembly had to bring the question to the court once
again. The court held that neither ‘customary’ nor ‘conventional’ international law
authorizes specifically the use of nuclear weapons (by 11 votes to 3), that the threat or
use of nuclear weapons is also not specifically permitted, and that:

. . . it follows from the above-mentioned requirements that the threat or use of nuclear
weapons would generally be contrary to the rules of international law applicable in
armed conflict, and in particular the principles and rules of humanitarian law;
however, in view of the current state of international law, and of the elements of
facts at its disposal, the Court cannot conclude definitively whether the threat or use
28 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-

defence, in which the very survival of a State would be at stake. (Speech of the
president casting his vote to break the seven–seven tie)

This opinion, despite its ambiguous tone, was viewed as an important decision, and
it shows the transition from state treaties as sole arbiters of the status of nuclear arma-
ments, to an opinion whose history and background served to bring a normative issue
to the forefront of public opinion. Falk (1998) traces the history of the movement that
culminated in that request, from several groups in civil society, as ‘the push to achieve
elimination [of nuclear weapons] often merges with the view that weapons of mass
destruction cannot be reconciled with international humanitarian law’. Falk shows how
world opinion, as well as the work of many committed NGOs, prepared the ground for
the very possibility of asking for an opinion from the time of the 1985 London Nuclear
Warfare Tribunal, where those weapons were defined as ‘unconditionally illegal’ and
hence that even a threat of their use would amount to a ‘crime against humanity’.
The main point that emerges is that neither politics nor economic factors, nor
even the advantage of groups of nuclear states, could be allowed to determine the use
of these weapons. Hence, at first the UN General Assembly and the WHO referred
a difficult question to the International Court, and although the question could be
evaded because the WHO concern was ‘health’ (narrowly construed) and not the use
of weapons, an opinion was later given. Implicit in both the original request by the
WHO and the eventual opinion is the fact that, ‘Nuclear weaponry, with its global
implications, raises questions of legality that affect not just the citizenry of the nuclear
weapons states, but the entire world’ (Falk, 1998).
This position supports, once again, the erga omnes status of the question, at least in
principle, given the careful phrasing of the Court’s statements. Falk (1998) does not
use this language in regard to either the question or the opinion itself, but adds:

Although not so formulated the radical element in this request was to transfer the ques-
tion of nuclear weapons policy from the domain of geopolitics, where it had remained
since the first attacks on Hiroshima and Nagasaki, to the domain of international
law.

And if it has not transferred the question to treaty law, clearly both incomplete and
insufficient to deal with this global threat, then Ragazzi’s argument (1997) for placing
its normative aspect among the few jus cogens norms generating an erga omnes obligation
appears to be correct.

Ecological rights and human rights

The ingrained values of any civilization are the sources from which its legal concepts
derive, and the ultimate yardstick and touchstone of their validity. This is so in
international and domestic legal systems alike, save that international law would
require a worldwide recognition of those values. It would not be wrong to state that
the love of nature, the desire for its preservation, the need for human activity to respect
the requisites for its maintenance and continuance, are among those pristine and
universal values which command international recognition. (Weeramantry, 1997)
 CULTURAL INTEGRITY & ECOLOGICAL INTEGRITY 29

Not all indigenous peoples are exposed to nuclear threats, although, for instance, it is a
fact that often the location of uranium mines, the starting point of multiple radioactive
hazards, are close to areas inhabited by indigenous peoples and – even worse – that the
population is often employed to work in those mines (Eichstaedt, 1994). But these are
insidious threats that emerge from regular industrial operations (see Chapter 1 for an
example from Ontario Canada) and that affect the most vulnerable among us, children
and the preborn (Westra, 2006).
The previous discussion of international law shows without a doubt that: first,
nations have the right to the integrity of their territory, that is, it is not lawful to allow
the activities of another country to interfere with that right; and second, that the
concern expressed in that right is based on a jus cogens norm, that is, it is not such that
the non-ratification of a relevant treaty is sufficient to excuse the polluting country.
International law is not only a question obeying pacta sunt servanda, when the obligation
at issue is erga omnes instead. These activities, I have argued, should be viewed as acts of
aggression. Note that the concept of aggression remains undefined in the language of
the International Criminal Court today, and that attacks against the human person are
indeed listed by the UN Charter among actions prohibited by international law, and
they are so viewed in the statute of the International Criminal Court as well. Ultimately
all pollution has grave impacts on the life, health and normal development and function
of those affected (Westra, 2004c).
Hence, in general, all attacks against the human person through uncontrolled
polluting activities should be viewed as criminal as well as giving rise to civil liability;
they should be understood to impose obligations on both individuals (both natural and
legal) and states of an erga omnes character. This position becomes much stronger when
those harmed or in danger of being harmed: first, have not expressed consent for the
activities that are harming them now, or are sure to harm them in the future; second,
belong to groups that do not benefit directly or indirectly from the harmful activities;
and third, are not in a position to move and relocate, given that the specific area affected
may be the territory allotted to the indigenous group under consideration, so that this
territory and no other remains theirs.
In addition, all international and domestic law instruments refer to the ‘traditional
ways’ of indigenous peoples and their particular relation to the land. Therefore, it is a
much more heinous crime to inquinate their lands and waters, as these form the basis
for their life and health and also because they hold particular religious and cultural
significance for them. To ignore any of these aspects is a form of aggression directed
at a specific people, hence it comes close to an act of genocide even if the mens rea
component is not fully present. Article II of the Genocide Convention11 defines genocide
as ‘acts committed with intent to destroy in whole or in part, a national, ethnical, racial
or religious group, as such’. Any of the following acts amounts to genocide:

 killing members of the group;

 causing serious bodily or mental harm to members of the group;
 deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
 imposing measures intended to prevent births within the group;
 forcibly transferring children to another group (Pentassuglia, 2002).
30 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Note that all the five points refer to physical genocide, and the fourth may be said to
prohibit ‘biological genocide’. Pentassuglia (2002) adds:

Thus, genocide was overall narrowed to acts targeting the physical integrity of groups,
in contrast to the broader notion submitted by Lenkin in the 1940s. Yet the ‘right
to existence’ in its most basic sense of protection against ‘physical’ and ‘biological’
extermination in the sense of Article II clearly benefits minority groups, though they are
not beneficiaries of the convention.

In Chapter 1, I gave the example of recent occurrences in a First Nation in southern

Ontario where, without deliberately ‘imposing measures intended to prevent births
within the group’, the end result was indeed the same as the one described in the
convention. If not enough women exist within the group, the birth of the appropriate
number of babies of indigenous descent will equally be curtailed, with or without
the deliberate intent to commit genocide. This crime (including the related ethnic
cleansing) is covered by the Statute of the International Criminal Court (Schabas,
2000), as are all practices ‘seriously affecting the physical integrity of a minority group
and its members’ (Pentassuglia, 2002).12
It is for this reason that in Chapter 1, where the two most common models of human
right protection regarding indigenous peoples were discussed (the ‘cultural integrity’
and ‘self-determination’ models), the ‘biological/ecological integrity’ model was
proposed. When genocide was first defined by Lemkin (1944), several different forms
of genocide were identified, including not only political, social, cultural, economic and
religious genocide, but also physical genocide and biological genocide (Pentassuglia,
2002). It is the latter that is the most relevant form of genocide for our argument, and
also the most ignored.
If we acknowledge that:

1 Indigenous peoples are for the most part, sui generis groups, with particular relations
to the land;
2 That relation is not only cultural or religious, but a unique form of interdepend-
ence;
3 Their territory is non-negotiable, in the sense of being the only area where they
have the right to settle and carry on their activities;

then it follows that:

4 Any activity that endangers the normal functions of the ecosystems of their territories
is, ipso facto, an attack on their ecological integrity;
5 Therefore it is equally an attack on the biological integrity of the indigenous peoples
who inhabit that territory, and hence on their life, health and normal function;
6 Hence, these attacks may well fit under the category of ‘biological genocide’ of each
of the peoples so affected.
 CULTURAL INTEGRITY & ECOLOGICAL INTEGRITY 31

The role of ecological integrity in protected areas

Article 8(j) Each contracting Party shall, as far as possible and appropriate: Subject
to its national legislation, respect, preserve and maintain knowledge, innovations
and practices of indigenous and local communities embodying traditional lifestyles
relevant to the conservation and sustainable use of biological diversity.13

The argument here concerns the interface between indigenous groups and their lands.
The latter are not intended as any area, whether paved, built-up, open to commercial/
industrial use or as a brownfield zone, but as naturally maintained ecosystems because
‘The integrity of protected areas may be threatened by activities exercised within or
beyond their boundaries’ (de Klemm and Shine, 1993).
There are certain characteristics of individual reserves or parks, or as they are
known in Spain, parajes naturales (de Klemm and Shine, 1993). These include their
status as wilderness zones and the presence of protected ecosystems and species, that
is, ecosystems where only traditional activities are permitted. But threats against the
integrity of protected areas are not always fully proscribed in law. For instance, mining
activities are forbidden, for the most part, in these areas, although ‘exceptional’ circum-
stances may lead to permits being issued, in combination with the obligation to ensure
that mitigation measures be implemented (de Klemm and Shine, 1993).
This is a major problem, as it is easy for the ministries and governments of various
countries to argue that economic activities carried out in certain areas, are ‘in the public
interest’, although they are, invariably, only in the interest of the industrial complex
undertaking the activities and, at most, some of the government officials who have
authorized the activity.
In addition, ‘Most protected areas are vulnerable to the effects of activities exercised
outside their boundaries, in particular to those affecting the quantity and quality of the
waters flowing into them’ (de Klemm and Shine, 1993). In response to this common
threat, most protected areas are also surrounded by buffer zones, where controls are
applied to preserve the integrity of the core protected areas. These zones are normally
viewed as part of the protected areas, as buffers are essential to the maintenance of
biosphere reserves and all other areas of integrity (Karr, 2000; Westra, 1998).
This approach to the protection and maintenance of the integrity of any area is
highly desirable; it represents the only way to preserve biodiversity and the natural
systemic processes of that area. Hence, if these regimes are necessary to protect
biodiversity, they are at least equally indispensable to protect traditional aboriginal
lands and the indigenous groups that inhabit them:

indigenous human populations living on and from the land by traditional means,
can still be considered as forming an integral part of the ecosystems concerned. When
a protected area is established on such land, it should thus have as an additional
objective the conservation of the particular culture, knowledge and way of life of
the indigenous populations living within its boundaries. (de Klemm and Shine,
1993)
32 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

In fact, the policy adopted by Parks Canada in 1979 accepts the preservation of tradi-
tional resource uses by First Nations, while honouring their treaty rights (de Klemm
and Shine, 1993). In this case, the interests of indigenous peoples and those of bio-
diversity and conservation are interchangeable. The latter encompasses the diversity
of ecosystems, the diversity of species, and genetic diversity within species (Article 2
of the Convention on Biological Diversity, cited in Bowman, 1996). This is so because
although all humankind shares the basic need for ‘nature’s services’ (Daily, 1997), in
general, indigenous peoples have no way of substituting any natural services that become
unavailable (such as healthy food or water), as do persons living in built environments,
at least for a time. Their lands and waters are there to provide for all their basic needs,
but they can actually do so only if the integrity and biodiversity of those areas is fully
protected within and outside the core lands that belong to any specific group.

An aside on biological/ecological integrity

Ecological or biological integrity originated as an ethical concept in the wake of Aldo

Leopold (1949) and has been present in the law, both domestic and international, and
part of public policy since its appearance in the 1972 US Clean Water Act. Ecological
integrity has also filtered into the language of a great number of mission and vision
statements internationally, as well as being clearly present in the Great Lakes Water
Quality Agreement between the US and Canada, which was ratified in 1988.
The generic concept of integrity connotes a valuable whole, the state of being whole,
undiminished, unimpaired or in perfect condition. Integrity in common usage is thus
an umbrella concept that encompasses a variety of other notions. Although integrity
may be developed in other contexts, wild nature provides paradigmatic examples for
applied reflection and research.
Because of the extent of human exploitation of the planet, examples are most
often found in those places that, until recently, have been least hospitable to dense
human occupancy and industrial development, such as deserts, the high Arctic, high-
altitude mountain ranges, the ocean depths, and the least accessible reaches of forests.
Wild nature is also found in locations such as national parks that have been deemed
worthy of official protection. America, from Mexico to Alaska (Cooperrider, 1994; Noss,
1992) utilizes the ecosystem approach to argue the importance of conserving areas of
integrity.
But the most salient aspect of ecosystem processes (including all their components)
is their life-sustaining function, and not just within wild nature or the corridor sur-
rounding wild areas, although these are the main concerns of conservation biologists.
The significance of life-sustaining functions is that they ultimately support life
everywhere. Gretchen Daily (1997), for instance, specifies in some detail the functions
provided by nature’s services, and her work is crucial in the effort to connect respect for
natural systems integrity with human rights.
Arguments against the value of ecological integrity for public policy have identified
the concept as stipulative rather than fully scientific (Shrader-Frechette, 1993). In a
similar vein, even the concept of ecology has been criticized as insufficiently robust to
guide public policy (Shrader-Frechette and McCoy, 1993). But ecological integrity is
already a part of public policy, thus requiring consideration of its meaning and the role
 CULTURAL INTEGRITY & ECOLOGICAL INTEGRITY 33

its inclusion should play in policy, rather than arguing for its rejection. Furthermore, to
maintain that ‘we need a middle path dictated in part by human not merely biocentric
theory’ (Shrader-Frechette, 1995) ignores how humans do not exist as separate to other
organisms. Biocentrism is life-oriented, and this principle is increasingly accepted not
only by science, but in the law.
The routine use of Karr’s Index of Biotic Integrity (IBI) (1993) to reach general
conclusions illustrates the ethical effectiveness of the scientific concept of ecological
integrity in public policy. The law analyses a crime or victim under a particular set of
circumstances. But public policy must abstract from specifics. Disintegrity (or lack of
integrity) and environmental crime (Shrader-Frechette, 1995) are global in scope and
need international forums and broad concepts to ensure that they will be proscribed
and possibly eliminated.
In addition, there is mounting evidence to connect disintegrity or biotic impoverish-
ment (Karr, 1993) in all its forms, from pollutions, climate change, toxic wastes and
encroachment into the wild (Westra, 2000a) with human morbidity, mortality and
abnormal functioning. International law has enacted a number of instruments to pro-
tect human rights (Fidler, 2000) and the WHO invited the Global Ecological Integrity
Project (1992–1999) to consult with it. This collaboration eventually produced a docu-
ment titled Global Ecological Integrity and ‘Sustainable Development’: Cornerstones of Public
Health (Soskolne and Bertollini, 1999).

The ethics of integrity

Because of the global connection between health and integrity, and the right to life
and to living (Cancado Trindade, 1992), a true understanding of ecological integrity
reconnects human life with the wild, and the rights of the latter with those of the
former. The ethics of integrity primarily involve respect for ecological rights (Taylor,
1998), without limiting these to the human rights that are the primary focus of the
law. The main point of an ethic of integrity is that it is a new ethic (Karr, 1993), one
founded on recent science demonstrating the interdependence between humankind
and its habitats. Environmental ethicists may prefer to focus on one or the other aspect
of this interconnected whole – biocentrism or anthropocentrism. While biocentrists
accept the presence of humankind as such within the rest of nature, anthropocentrisms
attempt to separate the two, in direct conflict with ecological science.
If it is argued that human health and function are both directly and indirectly
affected by disintegrity (Soskolne and Bertollini, 1999), then no theory can properly
separate one from the other. The strength of the proverbial canary-in-the-mine example
is based on the fact that the demise of the canary anticipates that of the miner. Hence
it is necessary to accept a general imperative of respect for ecological integrity. Onora
O’Neill (1996) makes this point well:

The injustice of destroying natural and man-made environments can also be thought
of in two ways. In the first place, their destruction is unjust because it is a further way
by which others can be injured: systematic or gratuitous destruction of the means of life
creates vulnerabilities, which facilitate direct injuries to individuals. . . Secondly, the
principle of destroying natural and man-made environments, in the sense of destroying
their reproduction and regenerative powers, is not universalizable.
34 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

In addition, the vulnerability that follows the destruction of integrity links the concept
to environmental justice. The principle of integrity together with appropriate second
order principles would ensure, first, the defence of the basic rights of humankind
(Shue, 1996), as well as second, the support of environmental justice globally, because
it would ensure the presence of the preconditions of agency and thus the ability of all
humans to exercise their rights as agents (Beyerveld and Brownsword, 2001; Gewirth,
1982b).
Ecological integrity is thus not an empty metaphor or a grand theory of little utility.
It is a concept that is robust enough to support a solid ethical stance, one that reinstates
humans in nature while respecting the latter, thus permitting clear answers in cases
of conflicts between (present) economic human interest and (long-term) ecological
concerns.

Ecological integrity and the law

It is reasonable to conceive of humanity as being morally responsible for the protection
of the integrity of the whole ecosystem, and for that responsibility to be translated into
such mechanisms that are cognizant of ecological thresholds (Taylor, 1998). Insofar
as such responsibility is justified as a protection of human life and health, breaches
of environmental regulations deserve not just economic penalties but criminal ones.
Nevertheless, there is a growing parallel movement to recognize the intrinsic value
of both the components and the processes of natural systems, not only in philosophy
(Callicott, 1989; Leopold, 1949; Westra, 1998), but also in the law (Brooks et al, 2002).
A number of international legal instruments also reflect the emerging global
ecological concerns, and thus include language about respect for the intrinsic value
of both natural entities and processes. This point is illustrated by a project involving
the justices of the worlds’ highest courts, funded by the United Nations Environment
Programme (UNEP). The project’s biocentric goal, as outlined by Judge Arthur
Chaksalson of South Africa, is one of the most important results of the Johannesburg
meeting (also known as ‘Rio+10’). The 2000 Draft International Covenant on Environ-
ment and Development incorporates the mandates of the Earth Charter (see Appendix
1), which was adopted by a United Nations Economic, Scientific, and Cultural
Organization (UNESCO) resolution on 16 October 2003, in its language and includes
articles on ecological integrity and the intrinsic value of nature.
Although the positions advanced in these international initiatives are present in law,
economic interests often obscure the opposition between the basic rights of persons
and peoples and the property rights of legal entities and institutions. In the process,
courts tend to weigh these incommensurable values as though they were equal. But the
right to life and the survival of peoples is not comparable to economic benefits or even
the survival of corporate and industrial enterprises.
An additional connection arises from a consideration of ecological integrity, a
complex concept that, after several years of funded work, the Global Ecological Integrity
Project eventually defined in 2000 (Westra, 2000b). The protection of basic human
rights through recognition of the need for ecological integrity, as Holmes Rolston
(1993) acknowledges, is a step in the emerging awareness of humanity as an integral
part of the biosphere (Taylor, 1998; Westra, 1998).
 CULTURAL INTEGRITY & ECOLOGICAL INTEGRITY 35

On the basis of the biocentric foundation for ecological integrity, it is necessary to

move toward the twin goals of deterrence and restraint, as is done in the case of assaults,
rapes and other violent crimes. Laws that restrain unbridled property rights represent a
first target, but efforts should not be limited to action within the realm of tort law. The
reason is obvious: economic harms are transferable, thus acceptable to the perpetrators
of such harms, although the real harms produced are often incompensable. As Brooks
and his colleagues (2002) indicate in reference to US law, science is now available to
support appeals to interdependence:

Not only have conservation biology as a discipline and biodiversity as a concept become
an important part of national forest and endangered species management, but major
court cases reviewing biodiversity determinations have been decided.

In addition, Earth System Science increasingly provides a ‘multidisciplinary and inter-

disciplinary science framework for understanding global scale problems’, including the
relations and the functioning of ‘global systems that include the land, oceans and the
atmosphere’ (Brooks et al, 2002). In essence, the ecosystem approach and systematic
science of ecological integrity have contributed support to what Cancado Trindade
(1992) terms ‘the globalization of human rights protection and of environmental
protection.
As noted above, these ideals are contained in the language and the principles of
the Earth Charter. The global reach of these ethics and charters, to be effective, must
be supported by a supranational juridical entity such as the European Court of Human
Rights. As the case for environmental or, better yet, ecological rights becomes stronger
and more accepted in international law, the best solution, as suggested by Patricia
Birnie and Adam Boyle (2002), could be to empower the UN. It might be desirable ‘to
invest the UN Security Council, or some other UN organ, with the power to act in the
interest of “ecological security”, taking universally binding decisions in the interest of
all mankind and the environment’ (Birnie and Boyle, 2002). Empowering the UN in
this way would foster support for programmes based on the abundant evidence linking
ecology and human rights and could become the basis for a new global environmental/
human order (Westra, 2004a).

THE ECOLOGICAL AND TRADITIONAL CONNECTION

BETWEEN INDIGENOUS PEOPLES AND BIODIVERSITY

Overlooked in virtually all accounts of the distribution of species and the structure of
forests is the role of humanity. There is in fact a growing body of knowledge on how
indigenous and local populations manage their natural resources and sustain them
over time. (Hecht and Cockburn, 1990)

Because of the historical and traditional interdependence between indigenous peoples

and their lands, the present state of the Amazon forests, as well as that of the Arctic
tundra, boreal forests and the like, are ‘the outcome of human as well as biological
history’ (Hecht and Cockburn, 1990). The geographical distribution of biodiversity
36 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

parallels the habitats of indigenous peoples in the world (Woodliffe, 1996; see also
Burger, 1990).
Jim Nations (1988) argues that ‘Wild genetic resources, that is, species of plants
and animals and the variations within them, are now recognized as constituting the raw
materials for future medicines, food and fuels’. Perhaps the most important aspect of
biodiversity in developing countries is the role of medicinal plants in the health care
of indigenous peoples. Of course the increased value of biological and plant material
does not end with the uses indigenous groups make of those resources. Pharmaceutical
giants such as Merck, Bristol-Meyers, Squibb, Smith-Kline and Glaxo and Pfizer have all
entered into contracts with countries where areas of wild biodiversity still exist, such as
China, Surinam, Peru, Argentina, Chile, Nigeria and Cameroon (Artuso, 1997).
The question then arises about the interaction between the large pharmaceutical
companies and the indigenous peoples whose lands are home to the desirable and
valuable medicinal plants. It is the respectful traditional practices of those groups that
have ensured the continued flourishing of biodiversity in all its aspects. In some cases,
large corporations have even entered into contracts that ensure advance payments and
other royalty arrangements – Merck entered into such a contract with Costa Rica’s
Instituto Nacional de Biodiversidad, whereby 50 per cent of royalties was pledged
to support Costa Rica’s National Park Service (Artuso, 1997). In such cases, the role
of government ministries and agencies should be to protect not only the valuable
biodiversity, but also the indigenous peoples who are its de facto custodians.
In some sense, the knowledge of indigenous peoples, as well as the plants in their
areas, should be under their exclusive control, but recent studies indicate that ‘wild
land biodiversity prospecting is currently operating in a “policy vacuum”’ (Woodliffe,
1996). In fact, some have argued instead that these genetic wild resources, although
conserved and nurtured by indigenous peoples, should be considered part of the
common heritage of mankind (Sedjo, 1992).
Anil Agarwal (1992) concurs with this assessment, but argues that it should be based
on a prior ‘international system of income tax, so that wealth could be automatically
transferred as a matter of right, and not just as aid and charity’. If this system were legally
implemented and enforced, together with an international ‘right to work’, everyone,
including all indigenous peoples would be assured of at least basic subsistence. In that
case, it might well be fair and just to treat ‘Third World biodiversity as . . . a global
resource’ (Agarwal, 1992).
It seems clear that the protection to which indigenous peoples are entitled and
the rights they have impose corresponding obligations on everyone. It is a question
of respecting human rights, but also a question of recognizing the unique position
of these peoples to foster the conservation of life-saving biodiversity. This represents
yet another strong reason to treat obligations to indigenous groups as obligations erga
omnes.

Eco-crimes and international law: Applications to indigenous rights?

Environmental rights are human rights. Treaties that affect human rights cannot be
applied in such a manner to constitute a denial of human rights, as understood at
the time of their application. A country cannot endorse activities which are a violation
 CULTURAL INTEGRITY & ECOLOGICAL INTEGRITY 37

of human rights by the standard of their time, merely because they are taken under a
Treaty which dates back to a period when such action was not a violation of human
rights. (Weeramantry, 1997)

Aside from the Nuclear Tests case that addresses directly the question of territorial
integrity rights and the erga omnes obligations arbitrations that ensue, there are few
other cases and arbitrations that seriously address environmental harms. But all cases
ultimately tend to confirm that international conventions expressly recognized by
some states are not enough, and that peremptory norms should guide and prescribe
erga omnes obligations as the best way to mitigate and eventually eliminate the tragic
consequences of environmental inaction and carelessness.
Hence, we need to consider the role of international custom and judicial decisions
in order to confirm these conclusions. It is not sufficient to show that the nature of illicit
environmental acts, or even the consequence of lawful acts affecting the environment
can, and most often do, produce consequences much closer to large-scale attacks or
crimes against humanity than to what might be expected from breaches of regulatory
regimes. It is not even sufficient, although it appears to be necessary, to show the clear
connection between environmental crimes and breaches of international instruments
designed to defend human rights.

The Stockholm Conference consecrated the ideas among others, that (a) the environ-
ment is a global entity to be protected in its entirely (although this does not diminish
the importance of particular rules applicable to different sources of pollution and
to different components of the environment), and (b) environmental protection is
a necessary condition of the promotion of peace, human rights and development.
(Ragazzi, 1997)

We should reconsider briefly the three ‘classic cases’ that provide the best sources of
international case law in regard to the environment, in addition to the Nuclear Tests
case. The first of these, in chronological order, as well as in order of importance, is the
Trail Smelter Arbitration,14, where the Tribunal found that:

. . . no State has the right to use or permit the use of its territory in such a manner as
to cause injury by fumes in or to the territory of another or the properties or persons
therein, when the case is of serious consequences and the injury is established by clear
and convincing evidence.

The language of the Tribunal’s judgement is clearly dated, but one may want to apply
the findings of this case, where the US justly sought compensation from Canada, to the
present situation where, for instance, ‘Global warming is a process that is no longer
discounted in the international legal system, although the severity of its impact on the
Earth is still debated’ (Kindred et al, 2000), yet the present US government refuses to
take responsibility for its own activities and ratify the Kyoto Protocol (to the United
Nations Framework Convention on Climate Change, 1997).
The United Nations Framework Convention on Climate Change clearly defines
‘climate change’, and in Article 1.4 defines ‘emissions’: ‘“Emissions” means the release
of greenhouse gasses and/or their precursors into the atmosphere and their inter-
38 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

actions’. In principle then, the US refusal to curb its emissions runs counter to the
principles and the letter of international law, completely ignoring the import (among
other principles) of the Precautionary Principle (Article 15 of the Rio Declaration,
1992). Sharon Williams (1986) recognizes that the ‘holding of the tribunal in The Trail
Smelter Case, has today become an integral part of international environmental law and
can be said to have widespread acceptance by states’. The language of the Trail Smelter
Arbitration, however, is vague and imprecise, nor does it take into consideration state
responsibility for the ‘shared resources or the global commons’ (Brunnée, 1993), as it
considers Trail Smelter only as a civil case (see also Chapter 8).
The second classic case is the Corfu Channel case (Merits).15 Although the case con-
cerns Albanian responsibility for failing (or omitting) to warn British warships of the
presence of mines in its waters, this is not, strictly speaking, an environmental case. But
the language of the court can be integrated and extended to continue and support
the point made in the Trail Smelter Arbitration about state responsibility. The judgement
found the state (Albania) to be responsible, in these words:

Such obligations are based not on the Hague Convention of 1907, No. VIII, which
is applicable in time of war, but on certain general and well-recognized principles,
namely: elementary considerations of humanity, even more exacting in peace than in
war . . . and every State’s obligation not to allow (knowingly) its territory to be used
for acts contrary to the rights of other states. (emphasis added)

This quote establishes that, first, humanitarian considerations are not limited to war
circumstances, and second, that the Trail Smelter rule ‘do no harm’ also held in this
case.
The third case, the Lake Lanoux Arbitration, completes the trilogy as support for the
existence of customary duties to avoid causing trans-boundary environmental damage
and to make reparation for such damage, should it occur (Mickelson, 1993).
Together, this trilogy of cases and arbitrations present the main elements in inter-
national environmental law that are neither domestic laws nor principles, rules or
articles taken from various instruments. Using primarily the latter, Mickelson (1993)
argues that the use of those documents ‘perpetuates the notion that international
environmental law has developed in a virtual vacuum’, and that it is, for the most part,
‘a decontextualized invocation of abstract principles’. Nevertheless, she also claims that
this judgement is incorrect, invoking ‘the rich body of material that does, in fact, exist’.
I find this statement not to be supported by facts: a survey of much of the scholarly
literature on the topic simply reveals different interpretations or analyses of the same
basic cases. These interpretations are indeed ‘rich’ in theoretical arguments, but it is
important to note that none of these cases is even remotely applicable to the grave
environmental problems we face today. The only one that is truly environmental, the
Trail Smelter Arbitration, at best involves economic damages to a specific agricultural
community in a specific area. In addition, the independent research of the International
Joint Commission, as well as other factual research upon which the arbitration was
based, also cited insect infestations and climate variations as additional contributive
causes to the problem (Mickelson, 1993).
The patterns prevailing in current problems are not present in Trail Smelter. That
is, considerations of grave ecological disasters with global implications are absent from
 CULTURAL INTEGRITY & ECOLOGICAL INTEGRITY 39

that arbitration, so that, in the final analysis, we are only left with one major principle,
sic utere tuo, as a standard and guide arising from this ‘case study’. Some of the major
differences between the situation in the Trail Smelter and today’s global problems are:

 a full comprehension of the scope of the harms imposed (such as the effects of
disruptions of ecosystem functions on human health), beyond simple economic
consequences;
 a full comprehension of the scale of the harms imposed (such as the effects on
the ozone layer), with consequences affecting populations far removed from the
location of the environmental hazard;
 an understanding of the possible mutagenic effects of the harm, such as changes in
normal human functions and development, affecting even future generations;
 an appreciation of the substantive justice issues involved when environmental
harms disproportionately affect certain populations more than others; and
 an appreciation of the need for the precautionary principle when evaluating an
activity that might produce environmental harms.

Hence, we can conclude that not only is the case law meagre in regard to international
environmental law, but it is almost irrelevant with respect to the real issues we face
today. One could argue that there are, in addition to the few environmental cases
and arbitrations, several international human rights cases, some involving aboriginal
peoples,16 where the ostensible primacy of human rights, both of the individuals and of
peoples, are indivisible from environmental rights. These cases view the environment
as a fundamental human right of peoples because it is basic to aboriginal cultures, not
just in the physical sense of a necessary basis of all human life, as argued for the most
part in this work.
Indigenous peoples are not states, although they are increasingly present and
heard in international law (Anaya, 2004). So that in the sense I have applied, ‘territorial
integrity’ is far more than the presence of borders or an area kept from the possible
use of other national entities. It is the basis and the foundation of the basic rights of
indigenous people, the very foundation of their right to survive both as individuals and
as a people.

The question of collective indigenous rights

Indigenous peoples possess collective rights which are indispensable for their existence,
well-being and integral development as peoples.17

For the most part, international human rights instruments refer to individuals, with
the paradoxical results that an aboriginal community intent on suing a corporation,
for instance, requires that one or more of its members prepare the submission to a
court of law, rather than allowing the community itself to speak officially through its
representatives. The corporation, itself, an aggregate of far more diverse components,
is viewed as one.
But the worst aspect of this approach is that the communication and collective
aspects of indigenous rights are left aside. It is possible, according to Anaya (1999)
40 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

and others (Newman, 2006), to understand the resistance of the US and others to
the recognition of collective rights on political grounds, but their approach is no less
harmful to aboriginal communities if their approach can be rationalized with reference
to concerns about cold war issues and the like:

After a long interagency consultation, a 2001 US Security Council position paper on

indigenous peoples, again referring to the concern of possible conflict with individual
rights, indicated a preference for the intermediate concept of rights held by ‘individuals
in community with others’, rather than by indigenous communities themselves.
(Newman, 2006)

In contrast, Article 27 of the ICCPR recognizes collective rights, as does also the govern-
ment of Canada:18

. . . [a] further dimension of aboriginal title is the fact that it is held communally.
Aboriginal title cannot be held by individual aboriginal persons; it is a collective right
to land held by all members of an aboriginal nation.

Both Australia,19 and New Zealand20 are equally committed to recognizing collective
indigenous rights. This is, nevertheless, a difficult position to accept in general terms as
the neoliberal ideal is one of maximum freedom and individual right of choice, without
allowing many traditional moral and communitarian concerns to interfere with such
choices. The emphasis is on ‘my rights’ rather than on ‘my responsibility’ (see Jonas,
1984), and this stark individualism also represents the fundamental tenet of capitalism,
as I argue in Chapter 9.
That is why it is not only the US but also several of the affluent Western countries
that hold the same or similar positions to the one noted for the US. This includes the
UK’s ‘long-held position against the concept of collective human rights international
law’ (Newman, 2006). Whatever the political reasons that prompt the concern about
the presence of collective rights in international law, the root cause is the undisputed
and indisputable primacy of individual rights. Newman (2006) adds:

Saying that individual rights can also run up against other competing individual
rights, and thus concluding that collective rights do not uniquely threaten to limit
individual rights, does not limit individual rights further compared to what could
have been the case without recognition of collective rights.

I believe that Newman’s concern shows that he is prepared to turn community and
collective rights ‘on its head’, so to speak. As part of the general project of neoliberalism,
it is the individual rights of natural and legal persons that not only ‘threaten’ but
effectively obliterate community rights, and thus the rights of indigenous peoples, as
we shall see clearly in the case law of Chapters 4, 5 and 6.
In defence of his position, Newman (2006) cites Buchanan (2004) and Kymlicka
(1991), with his real politic effort to defend indigenous peoples by finding a way to
convince non-indigenous powers ‘in ways they will understand and respond to’. For
both, it is important to fit indigenous peoples’ discourse into the concerns of those
 CULTURAL INTEGRITY & ECOLOGICAL INTEGRITY 41

who support the absolute primacy of individual freedom, a bizarre effort to reconcile
opposites that does not seem to have worked in the past or to work today.
For instance, Lawrence Gostin (2004) (see Chapter 10) views this approach as
fatal to the very existence of public health concerns, hence he sees the real danger of
adopting, as a starting point, a position that endangers all of mankind in general, and,
I argue, indigenous peoples in particular. In simple terms, not only aboriginal rights
instruments, but also eco-footprint analysis (see page 221) have it right, as does much
of the soft law we shall discuss below, including the Earth Charter. Aboriginal peoples
are communities, their rights are appropriately collective and they do not deny but
embrace the fact that they are also part of the community of mankind, as well as part of
the community of life on Earth (see Earth Charter, Appendix 1).
They, and their understanding of what ‘rights’ mean are not the enemies of rights,
properly understood. They simply represent the unavoidable counterpart of rights, that
is responsibilities to their community, to future generations and to life on Earth. This is
their starting point, and it is one I fully support in this and my previous work. To oppose
the primacy of responsibility is to ignore the reality of morality and of science which,
increasingly, indicates just how wrong and harmful the other ‘starting point’ is and has
been. In the next section I consider a well-known case where this argument was brought
to its full conclusion and presented successfully in the courts.

COLONIZATION, NEOLIBERALISM AND

THE RIGHTS OF THE U’WA PEOPLE

Indigenous peoples are thus subjects of a special duty of care on the part of individual
states and the international community, akin to the ‘sacred trust’ articulated in the
United Nations Charter with regard to peoples of non-self-governing territories.21

There are two sources of consideration regarding indigenous rights: international

law and domestic law. Although there are treaties and agreements between provincial
(Canada) or state (US) governments, the federal governments of both countries, and
native populations, international law standards influence all juridical decisions. Under
international law, decisions taken to protect indigenous peoples may well be considered
non-derogable obligations, governed by jus cogens norms. This is certainly true of all
acts that can be considered genocide, and may also be true of the protection of the
territorial integrity of national groups.
The protection model that addresses the biological/ecological rights of indigenous
peoples also appeals to fundamental human rights, equally binding on all individuals
as well as states. This is, in fact, the main appeal of international law as the best source
of protection instruments. In contrast, treaties must be negotiated with the country in
which the indigenous nation is embedded, and that approach does not always produce
the best results for the indigenous groups.
The case concerns the U’wa’s unrelenting resistance to neoliberalism’s ‘second
conquest’.22 Even without mobilizing armies, neoliberal policies have encouraged and
supported ‘the escalation of resource extractions’23 that, I have argued, is a form of
42 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

eco-violence as it is presently practised (Westra, 2004c). In other words, it is no longer

a question of conquering a nation for their labour, but it represents a far more serious
threat: ‘The threat to the Indians is not this time one of slavery, but of expropriation
of their lands and [the] total destruction of their way of life, if not their persons as well’
(Maybury-Lewis, 1984, emphasis added).
The case of the U’wa people of Colombia combines the two strands arising from the
previous section: first, the absolute dependence of indigenous peoples’ lives on their
territory; and second, the importance of international courts and legal instruments
for the protection of that interdependence and their lives. It also demonstrates the
need for a cosmopolitan reconstruction of human rights (to be discussed in the next
chapter) (Anaya, 2004).
The U’wa are an indigenous people of 5000 members living in northeastern
Colombia (Rodriguez-Garavito and Arena, 2005). Theirs was not the first effort of
resistance in South America; for example, the Mayagnas in Nicaragua and the Huaorani,
Secoya and Cofan in Ecuador have been fighting against Texaco (Rodriguez-Garavito
and Arena, 2005). The ‘global triad of modernity’, comprising states, markets and
Western ideology, has been the catalyst of the ongoing battles in support of indigenous
peoples’ ‘trio of core demands: self-determination, land rights and cultural survival’
(Brysk, 2000).
However, that ‘trio’ includes cultural integrity, but not the right to ecological/
biological integrity, despite the explicit, thorough and well-funded research of the
WHO, the EEA and, in general, recent work in epidemiology, and abundant work
from the 1980s in conservation biology. In Chapter 1 we also noted that international
legal instruments call for the right to ‘a clean and healthy environment’. This right
was invoked on 22 March 2006 by the lawyers representing several Montana citizens
(without specifying whether some might have been from local tribes), in a hearing
before the Montana Supreme Court in Helena, Montana (Dennison, 2006).24
Lawyers for the polluting companies declared the right to be ‘too vague and
inconsistent’, in fact ‘essentially meaningless’, and expressed the opinion that relying
on laws ‘for awarding damages’ or for ‘forcing cleanup’ would make more sense. But
Cliff Edwards, a Billings lawyer representing landowners in the case, responded that:

We need it because we have it (in the Constitution) and we’re entitled to it. I can’t
imagine a better policy of Montana public policy than this (as it was adopted at the
1972 Constitutional Convention). (Dennison, 2006)

The companies being sued include Asarco, for the pollution of soil and water by the
Canyon Resources and the now defunct Kendall gold mine. Also, Texaco is appealing
most of a US$41 million verdict against the company for groundwater pollution from
their refineries’ spills.
Of course, ‘healthy environment’ remains vague only when you do not refer the
concept directly to the well-documented public health damages that follow upon these
forms of pollution. The research of the WHO and many epidemiologists is quite explicit
and precise, and the expression ‘healthy’ opens the door to the inclusion of that science,
without waiting for the results of the present spills and pollution to directly affect the
exposed populations, as cancers and other diseases may not develop for several years.
Nevertheless Brysk (2000) is also correct when she adds that:
 CULTURAL INTEGRITY & ECOLOGICAL INTEGRITY 43

. . . indigenous concepts of land also encompass location as a source of cultural

reproduction: territory as identity. This notion includes environmental consideration
for land (‘Mother Earth’) viewed as a living organism whose existence and integrity
must be respected.

This view is indeed scientifically correct and generally accepted as a proper understanding
of the relation between indigenous peoples and their lands. The latter has spurred
‘transnational advocacy works’ to integrate this position in the constitutions of South
American countries. This was in fact done through the integration of indigenous rights
in the constitutional frameworks of Nicaragua (1987), Brazil (1988), Colombia (1991),
Mexico (1991), Peru (1993), Bolivia (1994) and Venezuela (2000) (Rodriguez-Garavito
and Arena, 2005).
From the early 1970s, the U’wa started organizing to resist the infiltration of
their territory. They pressed the Colombia government ‘to recognize their collective
entitlement to their land’ (Rodriguez-Garavito and Arena, 2005). The U’wa enjoyed
the constitutional right to consultation before any exploitation of their land could
take place. In January 1995, the national office for indigenous affairs of Colombia
organized a meeting with Oxy and Ecopetrol (the Colombian counterpart of Oxy,
fully Colombia-owned), as well as the Colombian Ministry of the Environment and of
Mining and Energy. The result was a joint communiqué acknowledging the U’wa’s right
to participate and modify the planned oil extraction project.
But on 3 February 1995 the Ministry of the Environment granted the licence for oil
exploration drilling to Oxy, stating that the constitutionally required meeting had, in
fact, taken place! The U’wa’s response was a strong one: ‘the U’wa announced that they
would collectively commit suicide unless plans for exploration were halted’ (Rodriguez-
Garavito and Arena, 2005). They also issued a communiqué:

in view of a secure death as a result of the loss of our lands, the extermination of
our natural resources, the invasion of our sacred places, the disintegration of our
families and communities, the forced silence of our songs and the lack of recognition of
our history, we prefer a death with dignity: the collective suicide of our communities.
(Rodriguez-Garavito and Arena, 2005)

International law and activism support the U’wa

After more than one and a half years of legal proceeding that slowed down both the
U’wa political mobilization and preparations for oil exploration, in February 1997
the Constitutional Court ruled in favour of the U’wa. Invoking the Constitution and
the ILO Convention No. 169, the Court concluded that indigenous collective rights
stand on a par with individual human rights. (Rodriguez-Garavito and Arena,
2005)

However, although this ruling opened the way for participation and actually guaranteed
a new meeting time, the Council of State, in contrast, found that their constitution did
not guarantee the right to participation to indigenous peoples and, on such procedural
grounds, reversed the constitutional court’s decision without even considering the
44 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

principles and the material facts of the case beyond the procedural grounds (Rodriguez-
Garavito and Arena, 2005).
A transnational advocacy network (TAN), together with many litigation-oriented
non-governmental organizations (NGOs), such as the Earth Legal Defense Fund, the
Rain Forest Action Network, the Italian Green Party and Spanish and British groups,
put pressure on OXY to withdraw. The Organization of American States (OAS/Harvard
Group) issued a report in September 1997 containing several recommendations,
including:

 an immediate suspension of oil exploration in the territory under dispute;

 the granting of the long-standing petition of the U’wa to live in a unified
reservation;
 the establishment of a two-phase consultation process, whereby negotiations would
be conducted first to identify the limits of U’wa territory (outside of which the
suspension of oil operations could be lifted) and then to develop measures to
prevent harms to the U’wa that might result from renewed oil exploration;
 technical assistance to the U’wa to ensure that they are ‘adequately prepared
to evaluate and to decide on the issues under consideration’ (MacDonald et al,
1998).

After several vicissitudes involving many indigenous groups as well as the U’wa, Oxy
announced its withdrawal, and in late 2001, the ILO ‘found that the new Colombian
legislation violates the ILO Convention No. 169’, as it does not establish the state
obligation to consult with indigenous peoples before granting licences in their areas.
In fact, Oxy had turned over its licence to the Columbian company Ecopetrol in 2002,
and the latter was resuming prospecting in the area.
Thus, despite widening international support in the battle against Oxy, the U’wa
won a battle but are still in a position to lose the war, as their fate is still hanging in the
balance. Their case demonstrates the interface of politics and law and brought the rights
of indigenous peoples to territory clearly to the forefront of regional and international
consciousness (Rodriguez-Garavito and Arena, 2005).25 Even more important, the
U’wa people courageously stated the true position of all indigenous peoples and the
life-altering consequences of the neoliberal ‘second colonization’. From the point of
view of my argument, the case clearly demonstrates that having a territory with certain
borders and a certain number of square miles is not enough if the ecological integrity
of the territory is not respected. The U’wa rightly felt they were losing their lands, even
though no one attempted to change the size of their possession but only its natural
conditions.

NOTES

1 UN Charter Article 2, para. 7.

2 See also Montevideo Convention on the Rights and Duties of States of 1934, www.yale.edu/
lawweb/avalon/avalon.htm
 CULTURAL INTEGRITY & ECOLOGICAL INTEGRITY 45

3 See also Bernard Ominayak, Chief of the Lubicon Cree v. Canada, Comm. No. 167/1984,
Human Rights Commission UN Doc. A/45/40, Vol. II, Annex IV.A., finding Canada in
violation of article of the International Covenant on Civil and Political Rights because of
state authorized natural resource extraction on indigenous traditional lands.
4 Conference on Yugoslavia, Badinter Commission Opinion No. 1, 29 November 1991 ILM 31,
1992: 1494–1497.
5 Reference re Secession of Quebec, 20 August 1998, SCR 2[1998], 281.
6 Frontier Dispute Burkina-Faso v. Republic of Mali, ICJ Reps. 1986, 586.
7 Trail Smelter Arbitration, US v. Canada 1931-1941 3 R.I.A.A. 1905.
8 Australia v. France; New Zealand v. France [1974] ICJ Rep. 253, at 267–70; 51.
9 ICJ Rep. 1974, 312 and 494.
10 Adv. Op.[1996] ICJ Rep. 66.
11 Convention on the Prevention and Suppression of the Crime of Genocide (1951), 78 UNTS 277.
12 See International Criminal Court Statute, Article 7.1(d) (g) and (h).
13 UN Framework Convention on Biological Diversity, Article 8(j).
14 US v. Canada (1931–1941), 3 R.I.A.A. 1905.
15 UK v. Albania (1949) ICJ Rep. 4, 17.
16 Lubicon Lake Band v. Canada, Communication No. 167/1984; or the ICCPR case Ilmari
Lansman et al v. Finland, Communication No. 511/1992: Finland. 8 November 1994.
17 ECOSOC, Commission on Human Rights, ‘Human Rights and Indigenous Issues: Report of the
Working Group’, Annex I, UN Doc. E/CN.4/2006/79 (22 March 2006), prepared by the
Chairperson-Rapporteur, Luis-Enrique Chavez.
18 Delgamuukw v. British Columbia [1997] 3 SCR 1010.
19 Native Title Act, 1993, Aust. Cap. Terr. Laws §223(1).
20 Treaty of Waitangi, 1840.
21 UN Charter Article 73; see also Anaya, 2004, p. 186.
22 Ibid., p. 244.
23 Ibid.
24 See also www.missoulian.com/articles/2006/03/09/news/mtregional/news02.txt
25 See an International Court of Human Rights decision in the 2001: Awas Tingni v. Nicaragua
case.
 CHAPTER 3

Cosmopolitanism and Natural Law

for the Recovery of Individual and
Community Rights

INTRODUCTION: THE MEANING OF ‘MINORITIES’

The non-arbitrary interference parameter apparently resembles the equally, at least

primarily, negative rationale of Article 27 ICCPR, which states that persons belonging
to ethnic, religious or linguistic minorities ‘shall not be denied’ the right to enjoy their
own culture, to profess and practice their own religion, or to use their own language.
At the same time, though, the hands off approach implied by the criterion of non-
denial is measured against the backdrop of a marked interaction between individual
rights and aspects of group protection. Irrespective of any positive action arguably
attached to Article 27, this element is somewhat tentatively echoed by the reference in
the provision to the communal exercise of rights. (Pentassuglia, 2006)

Territorial considerations, although prominent in international law, are not sufficiently

developed to encompass current scientific paradigms. In a sense, current regulatory
regimes are flawed; for example, offering the elderly or the poor unwholesome or
harmful meals that would not appease their hunger would represent a flawed programme
of ‘assistance’. In addition respecting an indigenous nation’s borders should include
respecting the lands defined by those borders. Thus territorial considerations remain
incomplete as forms of protection of indigenous rights, if all aspects of the territories in
question are not protected in a way that permits them to function to provide ‘nature’s
services’ (Daily, 1997).
As we saw in the U’wa case, the unique relations between indigenous peoples and
their territories renders the health and integrity of the land even more important and
basic than its role as provider of life services when its unique cultural and religious
features are acknowledged. These considerations support the emergence of a conflict
between human rights (primarily understood as individually applicable) and group
rights, when the latter do not coincide with either the state or with a specific legal
aggregate (such as a corporate body). I am speaking of communities whose rights
include those of individuals within their confines, but not necessarily the rights of the
state within which they simply represent a minority. It is hard to define what, precisely,
constitutes a ‘minority’, although it is indeed a meaningful concept in international
law:
48 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

. . . the prevailing view is that it is possible to find some elements of the concept of
minority endorsed by international law and therefore to determine the scope of
application of the respective rules ratione personae. (Pentassuglia, 2002)

In democracies, where ‘equality’ and ‘equal treatment’ for all are, at least in theory, the
reigning bywords, it is hard to see how special or different treatment can be applied
to individuals in certain groups without asserting that they are different in a pejorative
sense. Nevertheless there are, traditionally, several definitions of ‘minorities’, starting
with the two categories that apply to all such groups: first, ‘minorities by force’, that
is, peoples who might offer to be fully integrated but are not allowed to do so; and
second, ‘minorities by will’ or ‘cultural integrity’ (Claude, 1955). This dichotomy is best
expressed in the definition proposed by J. A. Laponce (1960):

. . . a group of people who because of a common racial, linguistic or national heritage

which singles them out from the politically dominant cultural group, fear that they
either be prevented from integrating themselves in the national community of their
choice or be obliged to do so at the expense of their identify.

The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities

(1950), isolated several aspects of the concept of ‘minorities’ as their protection depends
upon the full understanding of the notion:

 the stable ethnic, religious or linguistic peculiarities of the group, as to make them
‘markedly different’ from the rest of the population;
 their non-dominant position as national groups or sub-groups;
 the demand to preserve their own cultural identity; and
 their ‘loyalty’ to the state in which they live and whose members are citizens of the
state (Pentassuglia, 2002)

These and later definitions combine objective and subjective elements and Pentassuglia
(2002), for instance, adds several other components to the category of ‘minorities’:
‘numerical size, non-dominant position, ethno-cultural distinctive characters . . . and a
“sense of solidarity directed toward preserving their own cultural identity”’.
There are several important points to consider. The first is that, according to the
ICCPR, Article 27, belonging to a minority is not simply a matter of choosing a lifestyle
or cultural preference that diverges from the majority. It is based on the traditional
understanding of ‘distinctness’, based on ‘ethnic, religious or linguistic communities’
culture, practices and religion’. The main concern in international law is, therefore, to
establish state obligations to maintain and respect the cultural identity ‘for all ethnic/
religious minorities who strive to protect their identity, which include “the notion of
‘implicit’ will to preserve minority identity, so as not to make the subjective requirement
too demanding, especially in relation to minorities living under undemocratic regimes”’
(Pentassuglia, 2002).
This approach reinforces the difference between established indigenous/minority
groups and more recent groups, such as migrant workers or refugees, whose intent
may well be integration rather than the protection of distinct cultural identity. At least,
their intent in this regard should be kept an open question. Hence, in this work, the
 COSMOPOLITANISM & NATURAL LAW FOR THE RECOVERY OF RIGHTS 49

arguments proposed will apply only to traditional minorities and indigenous peoples,
not to any other newer group that call themselves ‘minorities’ in other senses.
The important difference, from our point of view, is that the traditional groups
have a sui generis relation to the land, a form of physical and spiritual interdependence
that renders necessary the preservation of ecological integrity in their territories in
order to ensure the respect for their basic rights to biological integrity and normal
function, as well as cultural integrity. No other groups qualify, so that our exclusion of
others in this work is not discriminatory, but simply factual.
This factual aspect is clearly in evidence in the judgement of the Human Rights
Court, in Sandra Lovelace v. Canada.1 Sandra Lovelace had been prevented from
returning to a First Nation to which she originally belonged, although she had indeed
left to marry a non-band husband. She wanted to reclaim her First Nation rights after
her divorce and the International Human Rights Court confirmed her right to do so
because the domestic provision preventing her from doing so was unjustifiable (Kontos,
2005; Pentassuglia, 2002).
The fact that membership in a group is not simply a matter of choice or preference
was confirmed by another case brought before the Human Rights Court, R. L. et al. v.
Canada.2 In that case, the members of a Canadian First Nation:

. . . challenged the amendment made to Canada’s Indian Act, in order to address

the issues raised in Lovelace, on the ground that this amendment interfered with
their freedom of association with others, since they could not themselves determine
membership in their community. (Pentassuglia, 2002)

The court did not deal with the merits of the case but simply judged the case to be
inadmissible because all local remedies had not been exhausted. In general, however,
the force of Article 27 was reaffirmed, and the possibility of equating minority rights
exclusively with individual choice was rejected:

In general [the Court] . . . indeed upheld the notion as reflected in the minority’s
treaties, that the individual declaration of affiliation with a minority group was to
reflect a fact, not solely the expression of an intention or a wish. (Pentassuglia,
2002)

FROM INDIVIDUAL MINORITY RIGHTS

TO COMMUNITY RIGHTS

Rights based on biological integrity are clearly individual rights as are those related
to health and normal function. In contrast, indigenous peoples ‘minorities’, in the
sense of the term discussed in the last section are groups and, in fact, more than simply
aggregates of individuals, a definition that would equally fit states, corporations and
other disparate groups. For this aspect of their status and their rights, the presence
of ecological integrity is absolutely fundamental, hence the coupling of ‘biological/
ecological integrity’ in the title of the third model of protection proposed in
Chapter 1.
50 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Community rights can best be found in the cosmopolitan aspects of human rights
defended by Kant (1957; 1964; 1981) and Kantians. This is so not because Kant’s
doctrine has a particular affinity to indigenous groups, but because, in his time, a
nation was much closer to a community than it is today, and the presence of small,
distinct religious or cultural minority groups was not significant enough to violate his
argument. This position acquires great importance, if we hope to transcend what Jose
Manuel Pureza (2005) terms ‘the three main assumptions of Grotian theory’:

1 States are the only relevant actors in the world scene.

2 Respect for state sovereignty is the fundamental value in international relations.
3 Interstate relations are founded upon a logic of reciprocity, with which each state
aims at maximizing its own individual interests and recognizes its partners’ legitimacy
to behave in the same way.

In contrast, Pureza (2005) analyses Kant in terms of ‘three opposite characteristics’ that
emphasize: first, the major role individuals play; second, the presence of ‘universally
shared values (peace, self-determination, human respect)’ that pose non-underogable
obligations on the international community; and third, a sense of ordre public going
beyond simple reciprocity.
This analysis shows precisely why indigenous/minority groups, although admittedly
not Kant’s explicit concern, fit much better within his theory than the rules governing
globalization. However, Pureza does not appear to be prepared to grant Grotius the
aspect of normativity that is strongly present in his thought, as we will see below, as it
arises from its natural law roots (Falk, 1998). Nevertheless Kant’s normativity is indeed
the better path toward a supranational form of government that may attempt to mitigate
or even eliminate the harms wrought by globalization.

Kant for supranational eco-justice and human rights

A global system of a plurality of more-or-less sovereign states, whose inhabitants’ lives

are restricted for many purposes to their own state, can injure many lives. Even if each
state were more or less internally just, and they rarely are, states may injure those whom
they exclude; and a system of states may systematically or gratuitously injure outsiders
by wars and international conflict and by economic structures that control and limit
access to the means of life. (O’Neill, 1996)

There is a basic difference that emerges in this passage between globalization and
cosmopolitanism. While the former is primarily procedural in its structures and
primarily influenced by powerful, market-oriented powers, the latter is based primarily
on substantive moral principles of justice that include but also transcend the economic
realm and rely on Kantian principles. States may or may not be fully just within their
own borders but, even at best, they may well injure those outside their borders by
exclusionary practices and these are direct injuries (O’Neill, 1996). Trans-boundary
pollution and disintegrity provide indirect injuries instead. This is a form of indirect
injustice as ‘destroying parts of natural and manmade environments injure those whose
lives depend on them’. In addition, ‘the principles of destroying natural and man-made
environments, in the sense of destroying their reproductive and regenerative powers is
 COSMOPOLITANISM & NATURAL LAW FOR THE RECOVERY OF RIGHTS 51

not universalizable’ (O’Neill, 1996). Ecological and biological integrity is precisely what
O’Neill terms ‘regenerative and reproductive powers’, or true sustainability:

Environmental justice is therefore a matter of transforming natural and man-made

systems only in ways that do not systematically or gratuitously destroy the reproductive
and regenerative powers of the natural world, so do not inflict indirect injury.
(O’Neill, 1996)

In O’Neill’s terms, moral principles represent the ‘blueprint’ and the ‘specifications’,
which define the ‘product’ to be eventually produced. In a similar sense, strategies
based upon principles are not, as such, the strategic tools to use in order to achieve
just aims, but they define what forms such tools might take. O’Neill (1996) argues that
‘The move from abstract and inconclusive principles of justice toward just institutions,
policies and practices is analogous to moves from design specification towards finished
product’.
The possession of fundamental, inalienable rights for all humanity finds its
strongest expression in Kant’s philosophy. His categorical imperative defends human
dignity and the infinite value of each human life, so that the Universal Declaration of
Human Rights (1948), the UN Charter (signed 1945, amended 1965, 1968, 1973) and
all other international legal instruments that take a strong position in defence of human
rights, originate from Kantian moral theory (Kant, 1964; 1981). But Kant also wrote on
‘perpetual peace’, and he saw a ‘league of nations’ as ‘the ideal of international right’
(Cavallar, 1999; Kant, 1957). It is not very common to find appeals to Kantian theory
today, in law or even in political thought. But it is in Kant that one can find both strong
support for human rights and the move to focus beyond the state as the ultimate source
of legitimacy, to a vision of cosmopolitanism and constructive peace that comes quite
close to the vision that animates the UN Charter.
In Kant’s theory, reconciliation is achieved between individual rights and universal-
ism, as instantiated not only through international laws, but through cosmopolitanism.
In 1310 the Italian poet Dante Alighieri advocated a ‘universal monarchy’. Kant knew
that a monarchy may not foster respect for individual autonomy and freedom that are
foundational to human dignity and thus to his moral theory (Cavallar, 1999). According
to Kant (1957):

There is only one rational way in which states coexisting with other states can emerge
from the lawless condition of pure warfare. Just like individuals, they must renounce
their savage and lawless freedom, adapt themselves to public coercive laws, and thus
form an international state.

In this passage we find almost a premonition of the direction that will be taken by
public international law. From a consideration of international legal instruments, at
least three points emerge:

1 The rule of law is the goal for individuals, states and beyond.
2 Public international law should be the final arbiter of what is just; it should provide
the connection between individuals, single states, and the so-called ‘international
state’ or supervening regulations and laws, when required.
52 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

3 The reason for going beyond single states and allowing these to have the ultimate
power in all matters, is to enable states to transcend warfare, as the goal of ‘perpetual
peace’, indicated in Kant.

Kant sees a ‘world republic’, rather than a single monarchy that might give rise to
a ‘soulless despotism’ that ‘leaves no room for rightful or lawful freedom, or public
coercive laws’ (Cavallar, 1999).The ‘finished product’ of this work, or a strategy toward
just and ecologically sensitive institutions may not yet be achievable, but at least there
emerges a prototype of what the ‘finished product’ may look like and what it may
achieve.
In this section we are still at the ‘blueprint’ and ‘specification’ stage. In contrast to
the procedural thrust of liberal governance, with its avoidance of moral absolutes or of
any clear commitment to a specified ‘common good’, beyond the economic advantage
of the most powerful groups, states and institutions, cosmopolitanism recognizes the
porousness of borders, despite their logic of inclusion and exclusion. It recognizes
the existence of non-derogable obligations beyond borders so that its scope includes
‘distant strangers and future generations’ (O’Neill, 1996). Cosmopolitanism based on
Kantianism can supply the principles and also the guidelines that are largely absent
from even the best among the advocates of liberal democracy, as the roots of injustice
are seldom sought out by these thinkers:

The idea that our economic policies and the global economic institutions we impose
make us causally and morally responsible for the perpetuation and even aggravation of
world hunger, by contrast, is an idea rarely taken seriously by established intellectuals
and politicians in the developed world. (Pogge, 2001)

Rawls’ (1999a; 1999b) work distorts this basic reality: ‘like the existing global economic
order that of Rawls’ Society of Peoples is then shaped by free bargaining’ (Pogge, 2001).
I return to the strategies required to overcome ‘free bargaining’ below, but for now, the
main point is that every practice that bears the prefix or qualifier ‘free’ is, ipso facto not
so in the universal sense: ‘free’ to pursue harmful practices does not render those who
are harmed ‘free’. It can be considered an obstacle to global justice, not a constructive
component of it, as, for instance, in Rawls’ liberalism in his work on justice (1999a)
and in The Law of Peoples (1999b). These works emphasize and support the very lack
of substantive, principled approaches that must be transcended because they support
globalization with all its inherent injustices (Pogge, 2001).
The alternative to globalization here proposed is a form of Kantian cosmopolitanism,
an approach that embodies the respect for near and distant persons and future genera-
tions as well. In contrast, the principles that Rawls embraces and that support ‘fairness’,
are said ‘to be internal to liberal societies’ (O’Neill, 1996), hence, at best, they attempt
to mitigate some of the ‘evil’ fostered by liberalism, but without any attempt to reach all
the way to the destructive foundation on which these theories and practices rest. This
‘pattern of derivation shows that inclusive principles of indifference to and neglect of
others also cannot be universalized’ (O’Neill, 1996).
Hence, in order to proceed from ‘blueprints’ to specifics, we must ensure that our
starting point is compatible with and supportive of our final aim: a Kantian form of
cosmopolitanism provides such an initial ‘blueprint’.
 COSMOPOLITANISM & NATURAL LAW FOR THE RECOVERY OF RIGHTS 53

Pureza (2005) views the doctrine of the ‘common heritage of mankind’ as the
approach to the community of humankind. I am not entirely convinced by this argument,
but I will discuss it further in the final chapter of this work. What is important at this
point is to discover what specific principles, beyond the respect for individuals, might
help the transition from that form of respect to the respect for a community, a group
that is neither a nation nor a simple aggregate of diverse individuals. Pureza (2005)
argues that in ‘the second age of the common heritage of mankind’, there should be
‘no privileged political targets’. But, while we can applaud his quest for ‘social and
ecological’ forms of sovereignty, the point is moot when we need to find an appropriate
way to ‘privilege’ groups or, at least, to find the legal basis required to justify their
treatment as particular, and indeed as unique.
That is why we must return to the other two protection models discussed in
Chapter 1: the cultural integrity and self-determination models. Even taken together,
these two models are certainly necessary but not sufficient to fully characterize the
kind of protection required by indigenous peoples: the biological/ecological integrity
approach is required to separate traditional indigenous groups that are fully and
explicitly protected in international law by erga omnes obligations, imposed on the states
that house them.
As we saw, the mere wish to be a member of an indigenous group or tribe is
insufficient to allow a person to acquire membership. But self-determination and culture
both play a pivotal role, combining with the individual Kantian rights expressed in
cosmopolitanism, to provide an additional justification for special status. In conclusion,
these groups possess:

 individual human rights beyond the general rights engendered by citizenship in

the state where they reside;
 these rights, and the corresponding non-derogable obligations of both their
state and of the international community, are based on their culture and self-
determination in a special way that includes first of all a special relation to their
land;
 that relation manifests their uniqueness and imposes special obligations erga omnes
on the international community to extend respect and full protection to their
territory, beyond the protection required for other areas and other citizens;
 hence ‘community’ in this special sense, emerges as the result of joining culture
and self-determination to the integrity of their specific territory.

Self-determination and culture may suffice to define other minorities, but while
necessary, they are not, as such, sufficient for the indigenous/tribal peoples that are
the focus of this work. For example, another traditional group worth special cultural
features and the need for self-determination, the Roma or gypsies in Europe, have
no particular legal or other form of attachment to a specific territory, and one of the
features of their culture is precisely the practice of moving freely from place to place. In
contrast is a group that fits our definition well, the Sami of Finland and Norway.3 In that
case, the Supreme Administrative Court of Finland (nos 692 and 693, 31 March 1999)
ruled against mineral exploration of their territory because of its effects on reindeer
herding, which would have violated the Sami’s cultural rights protected under Article 2
of the Finnish Constitution (see Anaya, 2004).
54 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

NATURAL LAW AND INDIVIDUAL AND COMMUNITY

RIGHTS: THE ‘WRONG TURN’ AFTER GROTIUS

A just law is a man-made code that squares with the moral law or the law of God. An
unjust law is a code that is out of harmony with the moral law. To put it in terms of St
Thomas Aquinas: an unjust law is a human law that is not rooted in eternal law and
natural law. Any law that uplifts human personality is just. Any law that degrades
human personality is unjust. (King, 1990)

In order to best understand natural law, we must start by considering the laws of nature
and their foundational role in natural law, according to Aristotle. Nature is central to
Aristotle’s argument in the Politics, written around 340 BC. This is routinely accepted
by Aristotelian scholars:

Aristotle conducted his study of things human in the fields of politics and ethics (and
also of logic, poetry and oratory), side by side with a study of things natural (physics,
medicine, and general biology). (Barker, 1973)

In addition, his ‘inclination towards the Ionic “becoming” – the genetic doctrine of
phusis’ (Barker, 1973) ensures that nature will be and remain foundational for all his
arguments, from the admiration he evinces for the beauty of perfected forms, to the
presence of design in nature (Aristotle, 1968 [c. 350 BC]). Governance, citizenship
and the polis itself were discussed with reference to natural standards (of size,
of completeness and the like). In the same sense, the constitution of the state will
provide its ‘essence’, the explanation of its identity as a ‘quasi-juridical person’ (Barker,
1973). The constitution is analogous to the natural laws governing physical organisms
(Artistotle, 1900 [c. 340 BC]).
Like all natural entities, the state has two main ends (in this case, not just one
end), for the association it represents. Aristotle starts with the basic ‘natural impulse’,
according to which ‘men desire to live a social life’; the other end is represented by the
common interest: ‘The good life is the chief end, both for the community as a whole
and for each of us individually. But men also come together, and form and maintain
political associations merely for the sake of life’ (Aristotle, 1900 [c. 340 BC]). Hence, the
essential nature of a state and the laws that regulate it, exist for the sake of maintaining
life, social association and the good life (Barker, 1973). This simply re-elaborates the
theme clearly stated in Book I of the Politics, that ‘every polis exists by nature’, and that
the ‘nature of things consists in their ends or consummation’, as ‘the end, the final
cause is the best’ (Aristotle, 1900 [c. 340 BC]). The polis exists ‘by nature’ and man is
meant ‘by nature’ to live in a social environment.
If we consider the modern liberal democratic state, we find something that is in
direct conflict with the Aristotelian view of ‘the state’. It does provide association, so
it satisfies at least one condition Aristotle finds essential to the nature of the state. But
note that the other two ‘ends’ or reasons why men join together in political association
are missing or under threat. In glaring contrast with the Aristotelian emphasis on the
state’s support of the common good, or the happiness that is based on the ‘natural end
of man’ as a moral ideal, in modern times even a token quest for that sort of good has
been completely eliminated from present political institutions (Westra, 1998).
 COSMOPOLITANISM & NATURAL LAW FOR THE RECOVERY OF RIGHTS 55

Thomas Aquinas, nature and natural law

As we move to consider natural law in Thomas Aquinas, we necessarily pass from antiquity
to the Middle Ages, a very different historical period. Yet it would be simplistic to assume
that the difference is simply one of adding Christianity to Aristotle, or eliminating from
his doctrine whatever is contrary to Christian thought. We need to understand how
the concept of natural law evolved, as it did not leap a thousand years from the great
philosopher to a great philosopher/theologian, without maintaining some sort of
continuity. We find the thread of this continuity quite early in the definition attributed
to a Roman jurist, Domitius Ulpianus (circa 170–228 AD): Jus naturale est quod natura
omnia animalia docuit (natural law is that which nature taught to all animals). This
definition was also adopted by Justinian in the Corpus Juris Civilis (Crowe, 1974). Ulpian
was known as a ‘great name’ in Roman jurisprudence and, unlike other contemporaries,
he distinguishes clearly between the ‘natural law’ and the ‘jus gentium’. Gaius (180 AD)
instead ‘distinguishes only two kinds of law, the jus civile and the jus gentium, the latter
being the work of natural reason’ (Crowe, 1974).
What nature teaches animals, freely translated from Ulpian, is ‘to reproduce,
(Ulpian adds, “that is what we call marriage”), to educate one’s offspring, and the like’
(Crowe, 1974). Jus gentium, is the law used by humans, which is different ‘because it
is held in common solely by human beings’. Finally, there is civil law. This division,
surprisingly, was the one preferred by Aquinas, rather than Isidore’s two-way division
between jus naturale, incorporating whatever is natural to mankind, and is thus common
to all nations and civil law. The former is natural because it is ‘independent of human
conventions’ (Crowe, 1974).
Eventually Bonaventure (circa 1217–1274), who did not write specifically on laws,
adopted Ulpian’s definition in his own Commentary on the Sentences. The tripartite
definition can be roughly translated as follows: in the first sense, natural law represents
what is found in both Gospel and laws; in the second sense, it is the law common to all
nations, and it is mandated by right reason; and finally, in a third sense, it encompasses
what is most appropriately what nature teaches all animals.
There is no need to pursue further the history of natural law, interesting and
varied though it is. The main point, at least according to Ulpian, Bonaventure and
Aquinas, is the relation of nature, as non-human, that is a firm component of a true
understanding of natural law. Nature remains the standard, the starting point and basis
to help us understand what natural law might mean when we apply it to humankind.
It is implicitly acknowledged that man and non-human animals (to insert the use of
modern terminology) have several common characteristics: they are created and they
are subject to identical or similar biological laws, so that a Cartesian split between
nature and human reason becomes impossible. We are connatural with whatever is
alive, though it might not be possessed of reason, at least insofar as we are considered as
biological beings. The presence of biological nature is, thus, ensured in this conception
of natural law.
I have briefly traced the role of the laws of nature, and of the concept of nature in
natural law doctrines, from ancient philosophy through the Middle Ages, looking at
Aristotle and Thomas Aquinas. I have shown the presence of several important principles
linking morality and law through nature and to nature. If we are to understand the
direction our laws should take today, in order to help correct the inability of modern
56 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

governance to enact laws and regulations that are environmentally sound and that
protect citizens, we should reconsider the doctrine of natural law.
We found a number of principles and arguments tying the historical, powerful
natural law doctrine to nature, its processes and its laws. Particularly important, yet
mostly absent from today’s understanding of the proper role of governance and the
law, are the following:

 The connaturality of human and non-human life, with the clear acknowledgement
that the same laws and processes apply to both.
 Therefore, the legal and regulative part of modern governance should equally
reflect that reality in its mandates.
 Because of this reality, it is wrong, at least in principle, to act in ways that prevent
the actualization of natural entities, according to their own natural unfolding. To
prevent such entities from reaching their final form cannot be done routinely, as
it is morally suspect (as well as prudentially suspect, according to environmental
ethics and the precautionary principle).
 Objections aimed at discrediting the validity of natural law can be answered, and
the common attacks on it from analytic philosophy can be refuted.

In the final analysis, whether implicitly or explicitly, much of the content of natural law,
its core meaning including the value and importance of natural laws and functions, is
present in today’s civil and criminal laws. Of course, it is not fully understood and the
debt to past traditions is seldom acknowledged or accepted. It is, therefore, imperative
to re-examine and clarify the full import and meaning of natural law doctrines so that
their implicit message can be rendered explicit.
No doubt this brief excursion into natural law helps to clarify its biological or
‘animal’ aspects, and hence to show that it is not a question of ‘construction’ of ideas
about what it is to be human; rather it is a question of scientific observation, albeit only
at the scientific level possible in 300 BC. Harris (1990) names one of the values and the
related rights that natural law supports in Aquinas’ formulation as:

‘Biological Values’, including life and procreation, both of which support the right of
self-defense, in turn foundational for the rules of jus ad bellum and jus in bello,
and the natural inclination ‘to engage in sexual intercourse and to rear offspring’.

These values do not attempt to make a statement about human choices, they simply
observe what is true in the animal world and accept those basic tenets as typical of
the animal part of rational animals, or humans. What can be learned from this simple
exposition is that, whatever is inimical to the support of human life in its natural
unfolding, is morally wrong and unjust, as Ken Saro-Wiwa recognized when he referred
to ‘genocide’ and ‘ecocide’ in the same paragraph with regard to the life-threatening
conditions forced upon the Ogoni by the complicity of their own government and the
actions of Royal Dutch Shell Oil (Westra, 1998).
According to Aquinas, that complicity would be sufficient to delegitimize the
military government. Barker (1973) summarizes the legal implications of natural law
as follows:
 COSMOPOLITANISM & NATURAL LAW FOR THE RECOVERY OF RIGHTS 57

the doctrine that law is the true sovereign and that governments are the servants of the
law; the doctrine that there is a fundamental difference between the lawful monarch
and the tyrant who governs by his arbitrary will: the doctrine that there is a right
inherent in the people by virtue of their collective capacity of judgement to elect their
rulers and to call them to account.

Harris (1990) names another of the values stemming from Aquinas as ‘characteristically
human values’, listing ‘knowledge and sociability’ under this category. The first clearly
implies the right to education and to the pursuit of knowledge, including religious
knowledge. The second implies the right to associate with others and form communities
(Harris, 1990). War is permitted as a just extension of self-defence, to the defence of one’s
community and rightful state. But when the state is radically unjust, then the obligation
is to disobey and not to be in any way complicit in its wrongful aims because the state’s
legitimacy is lost when the ‘common good’ is not served by its rulers. Speaking of man’s
obligation to obey a ‘prince’, Aquinas says clearly, ‘if he commands what is unjust, his
subjects are not bound to obey him’.4 Essentially, the relations between community
and individual are emphasized in natural law, as is the pivotal role played by the laws of
nature. Only through natural law, may individuals and communities be reconciled and
understood in ways that complement one another.
It is partially a function of the doctrines of both Aristotle and Aquinas, but also in
part, as we noted in the cast of Kant, the fact that in earlier times, before the advent of
migrations, colonization and conflicts that created a constant stream of refugees, that
ensured the presence of a Eurocentric perspective that made it a lot easier to identify
a ‘people’ with the citizenry of a small nation mostly composed of an homogeneous
group. Thus the complementarity that may be observed between individuals and
communities is unequivocally based on the physical laws of nature as well as in the
rational characteristics of humankind, and can never become identified with various
aggregates of peoples such as corporate entities or even states.
Hence, the ‘wrong turn’ of Emmerich de Vattel (1872), who obscured the true
sense of natural law because he believed that it would be sufficient to simply apply
natural law to the relation between states, rather than to individual humans (Anaya,
2004). In contrast, states are aggregates that lack all the principal characteristics of
human persons and of specific communities, thus resulting in a total misunderstanding
of both natural law and of the concepts of individuals and communities within it. In
defence of de Vattel, one must concede that he is motivated by excellent reasons, and
that the difficulties inherent in his ‘turn’ may not have been clearly visible to him at
the time.
For instance, he sees a ‘nation’ as a homogeneous group of citizens, and colonization
as fully appropriate on behalf of sovereigns. The latter would attain both ‘the domain’
of a country (thus allowing the sovereign to receive necessities from it and to dispose
of it), and ‘the empire’ or his right to govern it entirely as he sees fit. Starting with the
establishment of a country, de Vattel (1872) says:

The earth belongs to mankind in general; destined by the Creators as their common
habitation, and to supply them with food, they all possess a natural right to inhabit
it, and derive from it whatever is necessary for their subsistence, and suitable for their
wants.
58 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

His point is that, with the numbers of humans constantly growing, the Earth at the
time was no longer capable of providing for humankind spontaneously, so that various
nomadic tribes had to give way to groups practising proper cultivation to improve yield
(de Vattel, 1872). Appropriating uninhabited lands is one thing, but in the presence
of ‘Indians’, these may need to be lawfully ‘confined’ because, according to de Vattel,
they had no need of the ‘vast lands’ over which they roamed. Thus it is not their lack of
certain forms of governance or their specific culture that makes it appropriate to limit
their rights to territory, but the fact that they had much more than they could use to
survive well.
Nevertheless, he finds admirable the actions of the Puritans who, despite possessing
a charter from their sovereign, bought the land from the ‘Indians’ (as did the Quakers
later, led by William Penn) (de Vattel, 1872). Among the rights following upon the
conquest (or purchase) of the land, like all nations, the conquerors had the right to
keep themselves ‘alive’ by perpetuating themselves through ‘propagation’, for which
women are necessary, and – if these should be unwilling to accede to such requests of
marriage – the nation’s peoples have the right to carry them off by force (de Vattel,
1872)!
This brief overview of some of the rights of nations according to de Vattel is prob-
ably sufficient to give the flavour of his work and its somewhat anachronistic tenets,
despite the presence of its natural law background. In Chapter V of his work, ‘Of the
Observance of Justice Between Nations’, we come closer to the spirit of his position and
the somewhat reasonable causes of his ‘wrong turn’, as I have termed it. He argues that,
‘The obligation imposed on all men to be just, is easily demonstrated the law of nature’;
but although it is not legally binding on all nations, ‘All nations are therefore under a
strict obligation to cultivate justice toward each other, and to observe it scrupulously,
and carefully abstain from everything that may violate it’ (de Vattel, 1872).
It is clear then, that de Vattel’s concern is not to suppress or diminish individual
rights, but to use the strongest principle in his arsenal to ensure that nations, too, like
individual humans, be bound by natural law’s commands to ensure that justice be
present in all their decisions and activities. He goes even further, anticipating the gist
of erga omnes obligations when he states:

To form and support an unjust pretension, is only doing an injury to the party whose
interests are affected by that pretension; but to despise justice in general, is doing an
injury to all nations. (de Vattel, 1872)

Therefore, I would like to propose that perhaps de Vattel himself may have been
guilty of a ‘wrong turn’ as much as his interpreters might have been too hasty in their
reading of his doctrine, or at least the motives that animated his thought. Nevertheless,
granting individual rights to legal entities like states, may also be seen as the precursor
of granting them to corporate legal individuals, a wrong turn from which we are all
suffering today.
 COSMOPOLITANISM & NATURAL LAW FOR THE RECOVERY OF RIGHTS 59

The origin of indigenous rights in international law

and the role of natural law
The jurisprudential starting point of the rights of peoples is a direct assault upon the
positivist and neopositivist views of international law as dependent upon state practice
and acknowledgement. In this regard, the rights of peoples can be associated with the
positivist conception of natural law which, at the very birth of international law were
invoked by Victoria (sic) and others on behalf of Indians being cruelly victimized by
the Spanish conquistadores. (Falk, 1988)

Natural law is basic to human rights of indigenous peoples, in direct contrast with the
prevailing ‘statism’. Crawford (1987) reinforces this belief in his work on ‘The Aborigine
in comparative law’:

The first thing to notice is statism. Discussion of Aborigines takes place against the
background of the division of the world into states or state areas and the assumption
that primary human collective, above the family, is the state.

By dissolving peoples and communities into individuals within states, and by identifying
the latter’s interests with those of the former, positivism ignores and in fact eliminates
indigenous communities and groups, as well as the individuals themselves, from con-
sideration in international law.
As we saw in the previous section, natural law is based on a series of principles that
use human nature as foundational, hence it has no obvious application to states or
other aggregates. In fact, Thomas Aquinas explicitly contrasts the rights of individuals
against inappropriate laws enacted by a state, thus clearly showing that states are not
the ultimate authority and nor can they be substituted for individuals and indigenous
communities.
Unjust laws are even more likely to appear when the ‘governed’ are far from
the governing body, both geographically and in other senses. This is the situation
encountered by Spain and Spanish colonizers in relation to the indigenous peoples
inhabiting the Americas. The problems presented by such a ‘conquest’ are well
described in the work of the Spanish school and natural law scholars such as Bartolme
De Las Casas and Francisco de Vitoria. The ‘Spanish School of International Law’
(Scott, 1934) provided the point of origin for international law:

. . . the discovery of America gave rise to a modern law of nations. . . the Spanish
School came into being and passed on within the course of a century, but it has to its
credit the modern law of nations.

Natural law, the treatment of the theological/juridical work of De Las Casas and de
Vitoria, was the basis of the universalization of international law (Brierly, 1963). This is
also the argument of Marks (1990–1991), and it is fully supported by our earlier analysis
of natural law in the work of Aquinas.
The first point to consider is that these early scholars disputed the classification of
the ‘conquered’ lands as terra nullius and argued for establishing indigenous rights in
60 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

law. In addition, de Vitoria ‘proclaimed a “natural community of all mankind, and the
universal validity of human rights”’ (Stone, 1965). De Vitoria, and especially De Las
Casas, argued that indigenous peoples were not ‘barbarians’, and therefore they did not
fit Aristotle’s understanding of ‘natural slaves’. In contrast, they argued, these people,
although unable to read or write, had laws, religion, a good form of governance, and
held most values that were dear in the home country. Hence colonialism (or the ‘first
conquest’) could not be justified, although de Vitoria’s position is somewhat softer
because it allows for colonization if that appeared to benefit the indigenous peoples
themselves (thus unfortunately providing a first step toward ensuing paternalist
domination).
In any case, from its promising beginning as defender of indigenous rights, natural
law has only remained as one of the sources of international law recognized today.
Natural law supported individual rights, but it also served to empower rulers (as part of
the natural order), as these are, like everyone else, subjects of the natural law (Marks,
1990–1991). From the point of view of our argument, one of the most important issues
is captured in De Las Casas’s understanding of indigenous rights. As Marks (1990–
1991) argues:

his wide view of such rights to encompass material security, cultural integrity and
political autonomy, [which] make his doctrine comparable with modern notions of
self-determination and assertion of indigenous rights.

The most important concept in this passage is that of ‘material security’. This notion
is not a component of today’s views on indigenous rights, although ‘cultural integrity’
and ‘political autonomy’ (or ‘self-determination’) certainly are. I propose therefore
that ‘material security’ might be translated into ‘biological/ecological integrity’ or
the latter viewed as its basis, as argued in Chapter 1, and it can be understood as the
historical precursor of my ‘third model’ perhaps.
Although De Las Casas does not fully define ‘material security’ to my knowledge, the
notion should involve the life and physical security of individuals and groups; precisely
what modern science has proven to be the function of biological and ecological integrity.
Hence, those who view the natural law beginning of individual rights as incapable of
providing guidance in today’s modern world, neglect to take into consideration this
important and fruitful beginning.
In times when the global presence of so many different peoples and cultures is
obvious to all, it is almost viewed as reactionary to attempt to draw the (admittedly)
fine line between tolerance and acceptance on one hand, and repression or even
‘imperialism’ on the other. Yet even in the times of the Roman stoics, the thrust to
cosmopolitanism was present, in the same sense that commonly accepted practices,
including slavery, were at least viewed as necessarily limited and constrained by principles
of justice (Lauterpacht, 1950). In those cases, long before the Magna Carta, the primacy
of law and rationally recognized moral principles (not simply religious observances)
were deemed to be superior even to the will of ‘kings’. Lauterpacht (1950) notes these
advances and says that ‘By the end of the Middle Ages, the substance of what proved to
be the doctrine of the natural rights of man was well established’.
But the question raised by Baxi (2001) is whether in today’s multicultural world it is
even possible to use absolute principles originating in one age in another where quite
 COSMOPOLITANISM & NATURAL LAW FOR THE RECOVERY OF RIGHTS 61

different cultural realities are present. For instance, because the present concern with
eco-violence and eco-crimes is the fruit of practices that rapidly multiplied, became
magnified and incrementally hazardous since the Second World War (Carson, 1962),
we cannot expect to find anything in natural law to accommodate these phenomena.
In a sense, eco-violence (an evil), like multiculturalism (a good), is an emergent
phenomenon that is not obviously or clearly covered by the provisions of international
human rights legal instruments. As far as multiculturalism is concerned, there is an
abundant literature on the topic in relation to human rights. For instance, Jennings
(1987) notes that:

. . . as more and more aspects of international law reach down through the states to
corporations to other legal entities and to individuals, so international law has more
and more to take into account and allow for differences of municipal law, differences
of legal tradition, and differences of culture.

But to acknowledge these developing issues, and, in the case of eco-violence, these
‘emergent risks’ (Hiskes, 1998) does not necessarily require abandoning previous
principles of natural law in their support of human rights.

FROM NATURAL LAW TO ERGA OMNES OBLIGATIONS

FOR THE DEFENCE OF INDIGENOUS PEOPLES

The protection of the environment is likewise a vital part of contemporary human

rights doctrine, for it is a sine qua non for numerous human rights such as the right
to health and the right to life itself. It is scarcely necessary to elaborate on this, as
damage to the environment can impair and undermine all the human rights spoken of
in the Universal Declaration and other human rights instruments. (Weeramantry,
1997)

Weeramantry’s (1997) opinion defends the right to treat the environmental reasons
advanced by Hungary to justify its non-compliance with the original treaty with Slovakia
to build a dam diverting the River Danube, as an obligation erga omnes. But he appeals
to universality by presenting a scholarly dissertation on how all countries, from the time
before Christ to modern times, considered environmental concerns to be the common
rights of humanity, but also considered them to be their international obligations.
The examples in Weeramantry (1997) include the ‘royal edicts’ dating from the
third century BC in Ceylon:

Mahinda, son of the Emperor Asoka of India, preached to him a sermon on Buddhism
which converted the king. Here are excerpts from that sermon: ‘O great King, the birds
of the air and the beasts have as equal a right to live and move about in any part of
the land as thou. The land belongs to the people and all living beings; thou art only
the guardian of it. [This sermon is recorded in the Mahavamsa, Chap. 14]’.
62 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

‘Do no harm’ is the basis of all morality, from ancient Greece onwards. In Buddhism,
no harm can be caused to others, hence ‘sic utere tuo ut alienum non laedas’ is present in
all laws and moral principles. Weeramantry (1997) adds:

‘Alienum’ in this context would be extended by Buddhism to future generations as

well, and to the other component elements of the natural order beyond man himself, for
the Buddhist concept of duty had an enourmously long reach.

Other examples confirm the universality of these principles of respect and conservation:
from sub-Saharan Africa, where two ancient cultures, the Sonjo and the Chagga
(Tanzanian tribes), had created complex networks of ‘irrigation furrows’ in order
to convey water from mountain streams to the cultivated fields. The maintenance
of these furrows was the sacred responsibility and duty of all citizens (Weeramantry,
1997). Weeramantry’s historical survey ranges far afield in place and time in order
to demonstrate the timelessness and the universality of environmental concern and
obligation, supporting laws and customs entailing sustainable development long before
the concept became a modern byword. In essence, the traditions of peoples everywhere
show that ‘environmental rights are human rights’ (Weeramantry, 1997).
Weeramantry’s (1997) historical survey, however, does not show that different
cultures chose these principles, and that, therefore, they represent legitimate sources
of international law. It demonstrates instead that all peoples, universally recognize the
existence and the acceptability of these beliefs, hence they are far more than the
modern articulation of principles arising from a European country (Sweden), were
Gro Brundtland led the contemporary articulation of ‘sustainable development’
principles.
Similarly, natural law in its original formulation embodies principles and beliefs
that can be found in many civilizations, hence it is well able to provide not the latest
word on human rights, but the best starting point for a comprehensive and non-partisan
understanding of human rights, imperative in our complex and changing world.
Therefore if we lose the template or standard provided by universal moral principles,
we retain no ground from which to argue about the difference between different mores
and unacceptable action. The right to wear a turban, to refuse certain foods or to
wear a veil must be respected as different cultural mores; but the ‘right’ to segregate
according to colour or race, the ‘right’ to eliminate minorities perceived as threatening,
or the ‘right’ to practise painful, non-consensual mutilations on girl-children, all fly in
the face of basic morality, whether founded in natural law, which proclaims the basic
equality of all, regardless of colour or ethnic origin, or Kantian belief in the respect
due all humans (Westra, 1998). On what ground, or with what voice, are we to say to
a cultural group or to any people, that their accepted practices are in fact genocidal
(Schabas, 2000) or represent attacks on the human person (Bassiouni, 1996) and are
therefore unacceptable, although they are accepted in their community? If we cannot
discriminate between acceptable and unacceptable practices on principle, we have little
else to use to proscribe what some groups are prepared to do.
Ragazzi (1997),5 discussing human rights in relation to obligations erga omnes
(through the examples provided in the Barcelona Traction case), lists: ‘acts of aggression’,
‘acts of genocide’, ‘protection from slavery’ and ‘protection from racial discrimination’.
Ragazzi (1997) states:
 COSMOPOLITANISM & NATURAL LAW FOR THE RECOVERY OF RIGHTS 63

In giving the examples of the outlawing of genocide and the protection from slavery
and racial discrimination, the International court wrote that obligations erga omnes
may derive, in general, from the principles and rules concerning the basic rights of the
human person.

Ragazzi (1997) adds that, according to Fitzmaurice (1950), ‘. . .a principle is

something which underlies a rule, and explains or provides the reason for it’. Hence
it is important that the principles be preserved and used as standards, even as the
circumstances that provide the background for our activities may be in constant flux. In
sum, embracing ethical relativism would admit and permit far more negative decisions as
legal and just than it would eliminate. It seems clear that if the Aristotelian background
of natural law principles is fully understood, as is the development of natural law from
ancient Greece to the Middle Ages, from Aquinas to Grotius, there are several points
that may help rather than hinder the protection of human rights internationally. Some
of these are:

1 the ‘basic rights’ to subsistence and physical security (Shue, 1996);

2 the right to a safe ‘habitat’ or environment that would not hinder the ‘natural’
development and biological function of all humans (Shue, 1996);
3 the right to ‘social’ living, the right of all humans to live in a community that fosters
their ‘common good’;
4 the right to the acquisition and pursuit of knowledge, including religious
knowledge;
5 the right to a form of government that ensures (1), (2) and (3) above, so that the
common good of all is protected;
6 the right to rebel against any form of governance that does not respect and protect
the rights listed in (1) to (5) above.

The sixth and final point, needs much more discussion because, like ecological de-
gradation, the presence of diverse ethnocultural groups and their rights as ‘peoples’
are anachronistic from the standpoint of natural law, although, I believe, they are
compatible with it. Hence, peoples’ rights is the topic of the next section.

COSMOPOLITANISM AGAINST
GLOBALIZING ‘COLLATERALISM’ AND
THE RECOVERY OF INDIGENOUS RIGHTS

Although natural law precedes cosmopolitanism historically, and it may even be con-
sidered to be stronger than cosmopolitanism in defence of indigenous rights, Kantian
cosmopolitanism is undisputedly against neoliberal globalization. In a world where the
WTO is the most powerful court, and the ecological footprint harm perpetrated by
globalizing trade can be considered a weapon of mass destruction wielded by the North
against the South, it is imperative to appeal to non-derogable rights that are not open
to be bypassed in favour of any trade deal, even when the latter may be based on signed
treaties.
64 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Kant bases his concept of human dignity, hence human rights, on free agency, and
I have argued for the importance of the preconditions of free agency, based on the
right to be free from environmental harm (Westra, 2006). The point is that no one
can develop normal agency, the ability to think, to be a self-directed person, unless the
preconditions necessary for his/her normal development are present and protected
(Westra, 2004b).
Hence, although Kant did not address specifically environmental or public
health concerns, the basic sense of his doctrine presupposes autonomous individuals
(hence, individuals that have developed normally, rather than having any aspect of
their development arrested or interfered with by multiple exposures) (Westra, 2004b).
Hence, I have argued that the protection of the preconditions of agency is an absolute
requirement of the respect due to all human beings. Kant’s emphasis on ‘autonomy’
for individuals also lends itself well to the ‘self-determination’ model of protection of
indigenous peoples.
For all these reasons, Kant’s cosmopolitanism joins natural law in support of
individual rights, especially in their just fight against globalization with its prevailing
logic of economics over and often against life. It is a familiar story: as the power of
states recedes and is all but eliminated by the domain of trade groupings (WTO, North
American Free Trade Association and the like), there is very little left to protect vulnerable
people in general, and indigenous peoples in particular, from the phenomenon that
Sheldon Leader (2004) terms ‘collateralism’.
Leader argues that although the WTO, IMF and other economic organizations
have a specific purpose (outlined in the documents that define those organizations),
and that therefore their choices are functional as they reflect those goals, they still
consider human rights. Nevertheless, there is conflict between what he terms ‘civic
principles’ or ‘responsibilities’ and the ‘functional imperatives’ of those organizations
(Leader, 2004).
Civic principles guide the conduct of states, in contrast with the function imperatives
of economic and trade organizations, according to Leader (2004). But the analysis
ignores the fact that, for the most part, powerful states, and in fact all of them in various
manners, are allied to economic institutions and complicit with them in their harmful
dealings. If they are the powerful states of the North, they count on trade organizations to
expand and support their power, and foster their economic goals. If they are the weaker
states of the South, they need and actively court the goodwill of economic organizations
in order to survive as states.
In both cases, the most vulnerable people are the poor, globally, and indigenous
populations. Both are victimized both by trade organizations and by the application
of ‘civic principles’ by states. The first conquest was conducted brutally by powerful
states, and the principles of natural law were involved to attempt to mitigate its
deleterious impacts. But the ‘second conquest’, whereby states and trade and economic
organizations form an almost unbeatable ‘unholy alliance’, can only appeal to Kantian
principles of the absolute value of life, for the respect for all human beings, in order
 COSMOPOLITANISM & NATURAL LAW FOR THE RECOVERY OF RIGHTS 65

to counteract both economic functionalism and the current amorality of today’s states
and their ‘civic principles’.

FROM COMMON MORALITY TO INTERNATIONAL

LAW IN DEFENCE OF INDIGENOUS PEOPLES

3. The Committee is conscious of the fact that in many regions of the world indigenous
peoples have been, and are still being discriminated against, deprived of their human
rights and fundamental freedoms and in particular that they have lost their lands and
resources to colonists, commercial companies and State entrepreneurs. Consequently
the preservation of their culture and their historical identity has been and still is
jeopardized.6

Most of this chapter has been devoted to a discussion of moral principles and morally
supported political principles. Some of the most basic legal principles existing in defence
of indigenous people are to be found in the work of the Committee on the Elimination
of Racial Discrimination (CERD). But that work, and indeed that document, is fairly
recent (1997), whereas the principles upon which it is based can be traced far back
both in morality, in the sense of respect for the dignity of human beings (Beyerveld and
Brownsword, 2001), and in the law.
An exemplary case of this moral principle, together with the aspiration to see it
enshrined in international law, is the Le Louis case.7 On 11 March 1816, the Queen Charlotte
cutter captured a French ship, Le Louis, that had sailed from Martinique, destined for
Africa and back. Le Louis was seized and taken to Sierra Leone, where the Vice-Admiralty
Court heard the pleadings of the case, to the effect that Le Louis was clearly fitted and
intended for the slave trade from Africa, that the slave trade was contrary to both the
Treaty of 20 November 1815, between England and France (abolishing the slave trade)
and the laws of both countries, as well as the ‘law of nations’, and that the crew of the
Queen Charlotte was duly empowered to search the French vessel. The court also relied
on an earlier case of The Amedie: 8

in which it is laid down generally by the Superior Court that the slave trade is prima
facie illegal, and that the burden of proof is on the claimants to shew (sic) that the
laws of their own country permit such a traffic.9

However, Sir William Scott in his judgement, despite his horror at the ‘trade’ involved,
took quite a different position, as he argued:

1 that the search and seizure were both illegal according to the law of nations, as the
slave trade is not considered a crime internationally, as piracy is, which alone grants
leave to anyone to seize and search vessels on the high seas in peacetime;
2 that because of that illegality, the fruits of the search should not have been admitted
in evidence, and the force used in the search and seizure that led to the death of five
persons and many injuries, could not have been legal in itself;
66 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

3 that even if, under the British Slave Trade Act, slave trading were indeed illegal,
Le Louis was a French vessel with French documents and a French Master, thus it
remained unclear at that time whether any applicable legislation supported the
condemnation of the slave trade (initially made by Bonaparte, but after the latter’s
exile to Elba, also adopted by the King of France). The note of the British Minister
to Prince Talleyrand (the French King’s minister) elicited only the information
that ‘His Most Christian Majesty’ had issued ‘directions’ to the effect that ‘the
traffic should cease for the present time everywhere and forever’, but a formally
promulgated law appeared to be missing at that time,10 and was apparently only
formalized in 1817.

This is a highly instructive case, because slavery, the ultimate form of racial discrimina-
tion, was viewed with unquestionable distaste and even disgust by the judge and the
court, but in the final analysis it was not possible to condemn the vessel’s activities, and
free the slaves, while condemning the ship’s master as well as his country, as there was
no law expressly forbidding that activity at the time. Sir William Scott said:11

I must remember that in discussing this question, I must consider it, not according to
any private moral apprehension of my own (if I entertained them ever so sincerely) but
as the law considers it.

He added that to simply consider the state of laws at the time (from one perspective,
without the presence of a ‘United Nations’, or the possibility of enforcing erga omnes
obligations), had he attempted to condemn and punish the practice through violent
acts, would be:

. . . to force the way to the liberation of Africa by trampling on the independence of other
states in Europe; in short, to procure an eminent good by means that are unlawful; is
as little consonant to private morality as to public justice.12

What is obvious in this case is that the common morality of the day, at least in England,
viewed slavery as akin to piracy, a practice that rendered those who followed it hostes
humanis generis (enemies of humankind), thus open to seizure and attacks on the open
seas even in times of peace. Yet the lack of a specific law forced a judge who strongly
believed in the wrongness of the slave trade to argue that it was hard to term it a ‘crime’,
as it had historically been practised from ancient times to date and was even permitted
in British colonies.
At any rate, one can judge the vast gulf that separates almost universally held moral
principles from the legal codification of those principles into international law. The
slave trade has been abolished for a long time, but racism and ethnically motivated
attacks are alive and well in all regions of the world, as we shall see in the case of law
discussed in the next chapters. Hence the thrust of this work is to see the physical reality
of the harms against indigenous communities acknowledged in law. It is incredible that
we are still, in some sense, placed in the position of Sir William Scott, viewing a crime he
abhorred being committed and being unable to enforce the punishment in the law of
the time of an act that his conscience told him unequivocally was against both morality
and justice.
 COSMOPOLITANISM & NATURAL LAW FOR THE RECOVERY OF RIGHTS 67

The connection between environmental injustice and racism is clearly in place in

CERD (see Appendix 3). The UN Human Rights Committee expects periodic reports
from all countries that are signatories; it is the most relevant treaty for the rights of
indigenous peoples, together with the International Covenant on Civil and Political
Rights (ICCPR). The latter is intended to secure the cultural integrity of indigenous
peoples, ‘including cultural attributes linked to land use, economic activity and political
organization’ (Anaya, 2000).
Hence the UN Committee’s reporting requirements clearly support the environ-
mental justice for which I am arguing in this work. CERD now considers reports on
indigenous peoples’ rights, ‘within the general framework of the non-discrimination
norm running throughout the Convention on the Elimination of All Forms of Racial
Discrimination’ (Anaya, 2000), and the fact that the convention acknowledges the
connection between land use/cultural integrity and racial discrimination, demonstrates
that CERD is one of the instruments that has not yet been used to its full potential in
international law for the protection of indigenous rights.
Racial discrimination, like slavery, is part of the totally unacceptable consequences
of present-day economic activities, thus the emphasis of CERD on the principle of self-
determination for indigenous peoples is a necessary, though insufficient, approach to
their protection. Unless the harms that befall them are clearly understood in all their
implications, especially as environmental and health related, even full internal self-
determination within indigenous communities will do nothing to restrain the attacks
perpetrated by those activities outside their lands. In 1993, CERD adopted ‘early warning
measures’ or ‘urgent procedures’ to ensure that preventative action might help to
better protect indigenous peoples:

Under this mechanism, efforts to prevent serious violations of the [convention against
racial discrimination] would include . . . Early warning measures to address existing
structural problems from escalating into conflicts. . . and urgent procedures to respond
to problems requiring immediate attention to prevent or limit the scale and number of
serious violations of the convention.13

CERD, however, interacts only with states, whereas it is – for the most part – non-state
actors that are responsible for the unjust treatment to which indigenous peoples are
subjected. Nevertheless, it is indeed the state’s responsibility to protect all people within
its borders, including indigenous communities. I return to this topic in Chapter 9.
For now, we note the similarities between one of the gravest forms of racial dis-
crimination, the practice of slavery (including abductions and trafficking of those
unfortunate people), and the present grave attacks against land-based minorities that
include (as we shall see in Chapter 5), deportation, forced labour (akin to slavery),
torture and other forms of racial discrimination. Despite the fact that we are no longer
in the 18th or 19th centuries, the courts continue to lack the appropriate instruments
needed to translate into practice the quest for justice that is their obligation and their
mandate.
68 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

CONCLUSIONS

The three chapters of Part One were intended to set the stage for the argument of
the whole work and its main points: first, the fundamental necessity for ecological
and biological integrity to be enforced in order to protect the rights of indigenous
peoples to individual and collective survival; and second, the genocidal results that
ensue when this first necessity is not upheld and defended. The first chapter addressed
the significance of the existing models of indigenous peoples’ protection, the second
focused on the meaning and role of ecological integrity and added a brief survey of
some of the law regarding their rights.
The third chapter traced the historical background of the laws and principles
that have led to the present situation facing aboriginal peoples. In Part Two, it will be
important to move from principles and arguments for more desirable outcomes (lex
ferenda), to lex lata, and the reality of some representative cases where indigenous peoples
attempt to fight legally for their own protection and for environmental justice.

NOTES

1 Communication No. 24/1977, Views of 30 July 1981, [1981] Annual Report, p. 166; [1983]
Annual Report, p. 248.
2 R. L. et al v. Canada, Communication No. 358/1989 views of 5 November 1991, [1992]
Annual Report, p. 358.
3 See the Administrative Court of Finland, Nos. 692 and 693, 31 March 1999.
4 Summa Theologiae, bk. II. pt. I, Q. 104, A. 6, reply obj. 3 in Aquinas (1988 [c. 1260]).
5 See also IJC Reports 1970, p.32, para. 34.
6 Committee on the Elimination of Racial Discrimination (CERD), general recommendatins
(XXITTI) concerning indigenous peoples, adopted by the UN Committee on the Elimination
of Racial Discrimination at its 1235th meeting, on 18 August 1997. UN Doc.CERD/C/51/
misc.13/Rev.4 (1997).
7 Le Louis, 2 Dods. Rep. 210; it is ‘the sentence of a Vice-Admiralty Court, condemning a
French ship for being employed in the slave trade, and for forcibly resisting the search of
the King’s cruisers, reversed – No British Act of Parliament, a commission founded upon it,
if inconsistent with the law of nations can affect the rights or interest of foreigners’.
8 1 Dods. 84.
9 Le Louis, 2 Dods. 211–212.
10 ibid., 237–259.
11 ibid., 247.
12 ibid., 257.
13 Prevention of Racial Discrimination, Including Early Warning and Urgent Actions Procedures: Working
Paper Adopted by the Committee on the Elimination of Racial Discrimination, UN GAOR 48th Sess.,
Supp., No. 18, UN Doc. A/48/18, Annex III, para. 8.
 PART TWO

Selected Examples from Domestic

and International Case Law
 CHAPTER 4

Indigenous Peoples and Minorities in

International Jurisprudence and the
Responsibility of the World Bank

THE CASE OF THE AWAS TINGNI V. NICARAGUA

[The case of the Awas Tingni v. Nicaragua]. . . is the first legally binding decision
by an international tribunal to uphold the collective land and resource rights of
indigenous peoples in the face of a state’s failure to do so. (Anaya and Grossman,
2002)

On 31 August 2001 the Inter-American Court of Human Rights held that the state of
Nicaragua, by allowing a foreign company the rights to log within the community’s
land, had violated the rights of the Awas Tingni community. The Dominican-owned
company, Maderas y Derivados de Nicaragua, S.A. (Madensa) was granted about 43,000
hectares of land for their logging operation in 1993, but under pressure from the
World Wildlife Fund (WWF), the Nicaraguan government agreed to ask that Madensa
suspend these operations until environmental regulations could be put in place (Anaya
and Grossman, 2002). Although lawyers from the Iowa Project (Indian Law Resource
Center), at the request of the Awas Tingni community, asked that all concessions be
revoked as unconstitutional according to Nicaraguan law, the government attempted
‘to have the constitutional defence “cured” by securing a post hoc ratification of the
concession by the Regional Council’ (Anaya and Grossman, 2002).
Eventually and through another legal action, the concession was cancelled. Despite
this important success, however, the question of the Awas Tingni’s land tenure had
not been addressed, let alone resolved. The community and their legal representatives
presented their case to the Inter-American Court of Human Rights and the case was
decided on 31 August 2001.1
There were two main problems to granting title, according to Nicaragua. The
first was the fact that the listed members of the community were no more than 300
or 400 people, and even the more recent census only established the number of 1000
members, thus too few to require a deed to the number of hectares requested by the
legal representatives, Dr Anaya and Dr Acosta, in 1993:

The State, in turn, has argued that the extent of the territory claimed by the Mayagna
[Sumo] is excessive, bearing in mind the number of members of the Community
72 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

determined by the official census, and that the area claimed by the Community is not
in proportion to the area it effectively occupies.2

In addition, the second problem was the claim by Nicaragua that their main village had
only been established in 1940, hence contradicting the community’s claim to traditional
historical occupation, whereas other indigenous groups had similar land claims in that
general area (Anaya and Grossman, 2002). The witnesses before the Inter-American
Court stressed how vital the land, in all its variety, was for ‘their cultural, religious and
family development’, and that territory was not only necessary for their hunting and
fishing activities (as agreed by the community, based upon their conservation goals),
but also the territory included several sacred hills and places where fruit trees grew.
Their people were accustomed to walking through those areas in silence, ‘as a sign
of respect for their dead ancestors, and the great Asangpas Muijeni, the spirit of the
mountain, who lives under the hills’ (Anaya and Grossman, 2002). According to the
testimony of Rodolfo Stavenhagen in The Mayagna (Sumo) Awas Tingni Community Case:

Indigenous peoples are defined as those social and human groups, culturally identified
and who maintain a historical continuity with their ancestors, from the time before the
arrival of the first Europeans to this continent.

Stavenhagen adds that the historical continuity can be established not only through
their self-identification, but also through the use of a pre-Hispanic language they
speak.
Under Article 25 of the Constitution of Nicaragua (1995), indigenous peoples
have the right to ‘juridical protection’, hence to prevent the group’s access to the
judiciary represents an act of discrimination. In fact, Article 25 affirms that states are
obliged to offer all legal remedies against ‘acts that violate their fundamental rights’
and, under Article 5, the existence and rights of indigenous peoples are reaffirmed.
Article 5 guarantees political pluralism and the respect for the sovereignty of all nations
and states Nicaragua’s strong opposition to discrimination: ‘Article 5. . . [Nicaragua] is
opposed to any form of discrimination, and it is anticolonial, anti-imperialist, anti-racist
and rejects all subordination of one state to another state’ and furthermore, Article 89
adds:

The Community of the Atlantic Coast have the right to maintain and develop their
cultural identity within national unity; to their own forms of social organization and
to manage their local affairs according to their traditions.3

Nicaragua was responsible for violations of the Awas Tingni community relationship
with the lands and natural resources under a ‘combination’ of breached articles
of the American Convention: Articles 4 (the right to life); 11 (right to privacy); 12
(freedom of conscience and religion); 16 (freedom of association); 17 (rights of the
family; 22 (freedom of movement and residence); and 23 (right to participate in the
government).4
In this case, then, the doctrine of uti possidetis (see Chapter 2) would appear to
be appropriate because the traditional presence of the Awas Tingni in the same area
strengthens their interdependence with those lands and no others. But, although in 1998
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 73

the government of Nicaragua drafted a bill, ‘Organic Law Regulating the Communal
Property System of the Indigenous Communities of the Atlantic Coast and the Bosawas’,
to implement the sections of the constitution to formally provide legal instruments ‘to
regulate and provide borders for indigenous lands’, that bill had been adopted as law
after 2001.
Aside from granting monetary compensation to the community, the court unani-
mously decided that Nicaragua should create ‘effective mechanisms for delineation,
demarcation and titling of property of indigenous communities’, pursuant to Article 2
of the American Convention on Human Rights. The court also decided unanimously
that the state:

. . . must abstain from any acts that might lead the agents of the state itself, or third
parties acting with its acquiescence or its tolerance, to affect the existence, value, use
or enjoyment of the property, located in the geographical area where the members of
the Mayagna (Sumo) Awas Tingni Community live and carry out their activities.
(Constitución Politica de la Republica de Nicaragua)

Therefore, as well as the groundbreaking judgement upholding the collective land

rights of an indigenous group, this judgement breaks new ground by ensuring that a
state should not be allowed to ‘acquiesce to’ or to ‘tolerate’ activities that may affect
‘the existence, value, use or enjoyment’ of the newly allocated lands.
In Chapters 1 and 2, the lack of buffer zones to protect the integrity of the indigenous
lands was discussed; without them, the land’s ‘existence’, ‘value’ or ‘use’ are affected
so that it no longer provides the same services or permits the same enjoyment to the
community. Although the particular point in the court’s decision refers explicitly to
the period before the ‘delimitation, demarcation and titling of the corresponding lands’
could be carried out, the principle supporting the argument remains the same, once the
scientific evidence is understood.
If it is wrong to affect the ‘existence’, ‘value’ and ‘use’ of the lands through possible
activities that might affect the land’s natural functions and services, then, if it can be
demonstrated (as it has been), that industrial or extractive activities, just outside the
established borders have the same deleterious effects, then those activities should be
equally forbidden for the same reason.
The court’s decision was based neither on the tenets of conservation biology, nor
on those of public health. But the principle upon which it based its decision (point
no. 4 of the judgement), may well be adapted to reflect both. The understanding
of the ‘protection of indigenous territories’ can and should incorporate the science
developed since the 1970s, demonstrating beyond doubt the effects of industrial/
extractive activities beyond the borders of a specific territory, unless the territory is
protected by a properly sized corridor or buffer zone. In this case, Nicaragua had not
fulfilled its international obligations, ‘because of the particular acts and omissions of
legislative, executive, and judicial agencies that, in the aggregate, resulted in failure to
protect indigenous land rights’. The Inter-American Court of Human Rights found that
Nicaragua has ‘an inadequate legislative and administrative framework to address land
titling procedures’, as well as an inappropriate way of allowing logging in traditional
lands, without indigenous consent (Anaya, 2000).
74 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

BEYOND CORPORATE ACTIVITIES:

INDIVIDUAL CHOICE V. CULTURAL INTEGRITY

The 1988 case of Ivan Kitok v. Sweden (Anaya, 2000) stressed the cultural integrity
rights of an indigenous people without, however, involving any corporate enterprise or
foreign individuals. The case demonstrates the interdependence between cultural and
ecological integrity, although the former is its main focus, as Article 27 of the ICCPR’s
main focus is on culture and not ecology.
Ivan Kitok, a Swedish citizen of Sami ethnic origin (half-Sami), requested his right
to participate in the traditional cultural activities of his people. He claimed that he
belonged to a Sami family that had practised reindeer breeding for 100 years, and ‘On
this basis the author claims that he has inherited the “civil right” to reindeer breeding
from his forefathers as well as the rights to land and water in Skatium Sami Village.5
Kitok here refers to the fact that, in order to protect the reindeer breeding
programmes, both the Lapp Swedish Crown and the Lapp bailiffs have decided that a
Sami who has engaged ‘in any other profession for a period of three years . . . loses his
status and his name is removed from the rolls of the Lappby, which he cannot re-enter
unless by special permission’ (para. 2.2). Hence this is not a case of an indigenous
group against either a state (except for the fact that the rules are promulgated by the
Swedish state) or a transnational corporation. The conflict is between a Sami and the
Sami group, that is, it is a conflict between individual and group rights. The case of
Lovelace v. Canada faced a similar problem: the right of one woman, belonging to a First
Nation of Canada, but forbidden to return by her own group (according to the Indian
Act), after marriage to an outsider and a period of absence. The UN Committee on
Human Rights decided against Canada in favour of Lovelace (see Chapter 3).
But in the Kitok case, the very real possibility of exceeding the carrying capacity of
Sami lands puts an entirely different spin on an apparently similar question:

The pasture areas for reindeer husbandry are limited, and it is simply not possible to let
all Sami exercise reindeer husbandry without jeopardizing this objective and running
the risk of endangering the existence of reindeer husbandry as such.6

Of the estimated 5000 Sami who live in the Samby (Sami land) at issue, only 2000
are actually Samby members, whereas the others are ‘assimilated’, in conflict with
Article 27 of the International Covenant on Civil and Political Rights. Of the total Sami
population of about 15,000 to 20,000, most have no special rights under Swedish law
(although they do have some language rights, as they are either half-Sami or they have
been assimilated) so that only a small number enjoy specific hunting and fishing rights.
In addition, the half-Sami population is forced to pay 4000 to 5000 Swedish krona in
order to belong to the Sami association. In the three main states where Sami people still
exist – that is, Sweden, Finland and Norway – and the Kola Peninsula region of Russia,
they represent a small percentage of the population. One of the larger Sami groups,
20,000 living in Sweden, still represents only 2 per cent of the population. Only 10 per
cent of the Sami in all countries are presently involved in their traditional occupation
of reindeer herding.7
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 75

Kitok comments that ‘the important thing for the Sami people is solidarity among
the people (folksolidaritet), and not industrial solidarity (narigssolidaritet)’. The 1964
Royal Committee wanted to make the ‘reindeer village’ (renby), ‘an entirely economic
association’, as the large reindeer owners were favoured: they had a new vote for every
100 reindeer. But reindeer herding is essentially a cultural activity, and Article 27 of
ICCPR states:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging
to such minorities shall not be denied the right, in community with other members of
their group, to enjoy their own culture, to profess and practice their own religion or to
use their own language.

The Human Rights Committee decided that ‘a restriction upon the right of an individual
member of a minority must be shown to have a reasonable and objective justification to
be necessary for the continued viability and welfare of the minority as a whole’ (Morse,
2002). Hence Kitok was permitted to graze and farm his reindeer, hunt and fish, but
‘not as of right’.
What makes this case particularly interesting is that it makes the cultural integrity/
ecological integrity of the group primary, and the right to self-determination secondary,
as was argued in Chapter 1. Cultural integrity is based upon indigenous territorial rights,
and these are inseparable from their ‘ecological integrity’. Indigenous peoples are
defined by their special relation to the land, as this aspect of their culture is inseparable
from what gives them their uniqueness and their special rights. Thus the possibility of
an indigenous group denying this tradition and choosing options that are deleterious
to their cultural background, and hence to their identity, must be considered, as was
argued in Chapter 1.
In Fort McMurray, Alberta, there is presently a First Nation that has entered into
a lucrative business arrangement with Shell Oil in order to participate in the present
oil sands boom in that province. This decision negates most of the major aspects of
their identity (see Chapter 1), based upon which they are enjoying a special status in
international and domestic law. Yet some have argued8 that to take into consideration
such decisions takes away their basic human rights to freedom of choice and to ‘self-
determination’, and ‘This seems paternalistic and inconsistent with other bundles of
property rights afforded to other entities (e.g. States) in international law, and therefore
a double standard’ (Sandler, 2006). Sandler (2006) suggests that perhaps individuals
‘cannot violate their own rights’, but – at least from a Kantian point of view – this is
certainly not true; people are not morally allowed to sell themselves into slavery, sell
their body parts, or allow themselves to be dehumanized.
It is important to note that individual rights and group rights may be different
too. Also, indigenous peoples have special community rights, beyond those each of
the members may have as an individual. Hence the claim advanced here is that the
community as such, cannot make choices that contradict their essential identity, upon
which their special status and rights are based, and retain those rights. In fact, as noted
here, even a single group member cannot choose ways that might jeopardize the
community’s survival and thus their rights.
In principle (though not necessarily in the law) the First Nation at Fort McMurray
should retain the individual rights of the members as those of all human beings, and
76 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

their corporate rights as any other business entity, but perhaps they should not claim
any special rights that accrue to them as an indigenous community while they continue
their industrial operations. In law, they are defined by their unique interdependence
with the land, and the respect for it that is both traditional and mandatory in their
culture. If they choose to ignore that aspect of their identity, their identity could and
should be brought into question, and their rights might be differentiated according to
the different spheres within which they operate.

ENTITLEMENT AND HISTORICAL OCCUPATION

Native communities still occupy the bottom rung of the ladder of economic and social
status in the countries in which they reside. Their physical and spiritual survival is
threatened by outside encroachment – private and sometimes public action. There is,
however, a clearly discernible trend toward legal recognition of the special spiritual bond
between indigenous peoples and their lands, the demarcation and legal guarantee, if
not return, of lands of traditional indigenous use, and a recognition of Native Title
conferring right to at least use of the resources of nature in the traditional communal
ways (hunting, fishing for example). (Sandler, 2006)

Several issues have emerged in our discussion of indigenous rights: all are related, but
they are characterized by emphasis on diverse problems. Territorial integrity is a major
problem, and so is the protection of ecological integrity and of biological integrity and
public health. Then there is the problem of the limits of self-determination and the
importance of cultural integrity. In addition, we can also consider another problem
related to territory: the question of title, something we discussed briefly when we
considered the conquest of North America and the concept of terra nullius. The first
case to be considered is in North Africa, the Western Sahara case; the second is the Mabo
case from Australia.

Western Sahara advisory opinion (16 October 1975)

The General Assembly of the UN had requested the court to give its advisory opinion
on two questions: first, ‘was Western Sahara (Rio de Oro and Sakriet el Hamra) at the
time of the colonization by Spain, a territory belonging to no one (terra nullius)?’; and
second, ‘what were the legal ties between the territory and the Kingdom of Morocco
and the Mauritania Entity?’.
Most important is the court’s answer to the first question: Western Sahara was not
terra nullius at the time of the Spanish conquest. Hence, at the time of Spain’s withdrawal
and the ‘decolonization’ of the area, it is necessary to discover the original political
situation before the conquest. Both Mauritania and Morocco wanted to have their own
chosen ad hoc judge sitting in the proceedings (paras 1–13, Advisory Opinion) to support
the existence of early ‘legal ties’ between the indigenous tribes and their countries.
For instance, Morocco claimed ‘sovereignty’ on the grounds of alleged immemorial
possession of the territory and the uninterrupted exercise of authority (paras 90–120).
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 77

Morocco wanted the court to take into consideration various documents produced in
support of the allegiance of various tribes to the Sultan of Morocco, ‘through their
caids or sheiks, rather than on the notion of territory’ (Wiessner, 1999). But these
documents, at best, indicated that ‘a legal tie of allegiance existed at the relevant period
between the Sultan and some, but only some, of the nomadic peoples of the territory’
(Wiessner, 1999).
The ‘Mauritanian entity’ also claimed a connection to the tribes at the relevant
period, based on their earlier political authority over both emirates and tribal groups.
Mauritania also proposed the notion of a ‘people’ or ‘nations’ for the inhabitants at
that time. They claimed to have ‘legal ties’ with them, but these ‘ties’ were also judged
to be insufficient to determine the status of the area’s indigenous peoples. In contrast:

The Court stressed that self-determination, the overriding principle in the decolonization
of the Western Sahara, required regard for the freely expressed wishes of the peoples of
the territory, notwithstanding their character or political status immediately prior to
colonization. (Wiessener, 1999)

In fact, this advisory opinion recognized the presence of ‘native title’ on the ‘basis of
historical use and occupancy’.9 Hence a ‘title’ of sorts was present for the nomadic
tribes of the area, based on their lengthy association with the lands subsequently taken
over by Spain. Hence the historical roots of the Western Sahara’s indigenous peoples
were sufficient to confer upon them the title they sought to those lands after Spanish
decolonization.

Mabo v. Queensland: Native title and the Australian High Court

. . . this means that if traditional nation title was not extinguished before the Racial
Discrimination Act came into force, a state law which seeks to extinguish it now will
fail.10

The issue before the Australian High Court was the Queensland Coast Island Declaratory
Act 1985 (The Queensland Act), that purported ‘retrospectively’ to abolish ‘the rights
and interest of the Miriam people of Murray Island’, and to have the traditional lands
revert to the Crown instead. The plaintiffs (Miriam Peoples or Murray Islanders), now
own and have both proprietary and usufructuary interests ‘in relation to the land,
seabeds, reefs and fishing waters of the Murray Islands’. The Murray Islanders are a
distinct indigenous group and section 9(1) of the Federal Racial Discrimination Act
states that:

. . . it (is) unlawful for a ‘person to do any act’ involving racial discrimination which
has the purposes or effect of nullifying or impairing the recognition, enjoyment or
exercise of any human right or fundamental freedom in the field of public life.11

In addition, ‘Section 109 of the Constitution. . . resolves any conflict between competing
laws in favour of the paramountcy of the Commonwealth law; to the extent of that
inconsistency the State law is inoperative’. Thus section 3 of the Queensland Act,
78 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

declaring that the lands in question were ‘freed’ from all previous right claims and
became simply ‘wastelands of the Crown’ cannot stand.
The Racial Discrimination Act’s section 10 also aims at eliminating discrimination
in all legal instruments (Commonwealth, state or territory law), so that persons of all
races, colour, national or ethnic origins must be permitted to enjoy the same rights
under conditions of full equality, a position also held by the International Covenant on
the Elimination of all Forms of Racial Discrimination, Article 5(d), which includes the
right to own property, as well as the right to inherit.
The presence of Murray Islanders in their lands from time immemorial is not in
question, thus the Queensland Act is invalid and unable to impair the traditional rights
of these peoples on three separate grounds: first, ‘As a matter of construction’, as it
cannot extinguish the specific rights of a people; second, ‘As a matter of power’, as
there are limits to the power of Queensland on how to deal with Crown lands and to
deprive people of their property rights; and third, ‘As a matter of inconsistency’, as it is
inconsistent with the provisions of section 9 of the Racial Discrimination Act of 1975, as
well as section 10(1), that ensures the continuation of traditional rights.12
Brennan (CLR at 120-1),13 adds a very important point regarding racial discrimina-
tion. He argues that ‘The dominant theme that runs throughout the Convention, is
equality before the law’. But depriving the Murray Islanders of their rights, even to
allow their lands to become the property of anyone else, without discrimination, does
not correct the ‘inequality’, because ‘a deep sense of injustice may remain’.
Formal equality in law is not the same as ‘effective and genuine equality’. Equality
in law precludes discrimination of any kind, ‘whereas equality in fact may involve
the necessity of differential treatment in order to attain a result which establishes an
equilibrium between different situations’.14 This is the sort of correct argument that has
been advanced in defence of quotas and other anti-discrimination procedures in the
workplace and elsewhere in North America.
Hence the most important consequences of the resolution of this case are: first,
no domestic or regional law may impair basic international human rights and promote
instruments in direct conflict with such rights; and second, formal, procedural ‘equal
treatment’ is insufficient to support the human and community rights of indigenous
peoples, as they represent a sui generis case, and they require special treatment under
conditions of substantive justice instead.

Aboriginal land rights in Australia

Echoing the pattern of the Canadian judiciary, however, the Australian High Court
followed several opinions upholding the environment-related rights of indigenous
peoples with a series of opinions severely curtailing those rights.15

Three years after the Mabo v. Queensland decision, discussed above, the court returned
to the same or similar issues, in Wik Peoples v. Queensland (Manus, 2006). The question
was, once again, Aboriginal rights regarding ‘pastoral leases granted by the government
to non-indigenous lessees’:16
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 79

If the government had entered into leases that extinguished native title, the appellants
argued, those leases were illegal and a breach of the sovereign’s fiduciary duty to the
tribe as its trustee. (Manus, 2006)

The majority of the judges in the case concluded that pastoral leases could coexist with
the kind of land uses Aboriginal peoples practised, hence demonstrating the court’s
acceptance of the specific ties of Aboriginal peoples to the land and their environmental
rights (Manus, 2006).17
Nevertheless, after the amendment of the act in 1998, subsequent cases do not
follow the lead of Mabo and Wik. In Ward,18 for instance, and in Yorta Yorta,19 the tribal
peoples hoped that the court would declare their right to ‘exclusive possession’ of their
territories, the right ‘to speak for’ the lands, and the right to protect ‘culture knowledge
related to it’.
It is interesting to note that although the court recognized the spiritual/religious
relation between Aboriginal people and their land, and also acknowledged that it
amounted to ‘a protective dominion or stewardship over its environment’20, it reached
a conclusion quite different from that hoped for by the local tribes. The court argued
that this ‘spiritual’ relation had to be ‘translated’ into ‘non-indigenous legal rights and
interests’.21
This approach runs counter to that of the Canadian courts which, increasingly,
accept oral histories and other indigenous witnesses as equivalent to other more formal
legal histories. The Australian court treated native title as a ‘bundle of rights’, implying
that each needed to be proved separately and each could be extinguished by the Crown
(Manus, 2006). Even more damaging than this understanding by the court is the formal
interpretation of the relation between Aboriginal people and the land one finds in
Yorta Yorta.
Various government policies and activities, both legal and illegal, had conspired in
several ways to force the alteration or elimination of Aboriginal traditional practices,
from the removal of local children from their families, to the near elimination of
the use of tribal languages, to the interference with the right to perform traditional
ceremonies. The court, however, concluded that their present lifestyle and practices
did not have ‘a continuous existence and vitality since sovereignty’ (Manus, 2006).
It seems to be particularly offensive to an indigenous group that a government
should first allow and support activities that destroy the integrity of a group’s territories
and their cultural identity by negatively affecting the lands and declaring their cultural
and religious practices forbidden, then look at the group’s current lifestyle and declare
that there is no ‘continuity’ between traditional ways and their present practices in
their ‘adapted’ form.22 Nevertheless, at the time of the British settlement of Australia in
1788, the land was viewed as terra nullius, that is, ‘the land was treated as if it had been
vacant or desert so as to be available for claim by any nation that established settlements
upon it’.23
This understanding implied that the ‘Aboriginal people were so primitive that
their occupation was inconsequential’ (Morse, 2002). Hence, Aboriginal peoples there
had to battle to demonstrate from the start that they were human beings with rights.
The fact that they presently have the same rights as other Australians, therefore, is an
indication of great progress, although they have neither ‘sovereignty’ nor other special
rights.
80 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

The High Court, in the Mabo decision, found that:

. . . the common law of this country recognizes a form of native title which in cases where
it has not been extinguished, reflects the entitlements of indigenous inhabitants, in
accordance with their laws and customs, to their traditional lands. (Morse, 2002)

Thus, the Mabo case was by no means the final word on Aboriginal rights. The Racial
Discrimination Act of 1975 (according to sections 9 and 10) provides that, ‘. . . if
Aboriginal people are deprived of certain rights by discriminatory laws, then those
rights are not lost’ (Stephenson, 2004). The Native Title Act (1993) codifies the fact
that the common law in Australia ‘recognizes native title’, rather than creating it
(Stephenson, 2004). As noted in Yorta Yorta (Stephenson, 2004), the ‘bundle of rights’
of Aboriginal groups was determined as ‘a matter of fact’ by reference to the traditional
laws, customs and practices of the particular indigenous community,24 thus avoiding a
decision enshrining a clear definition of native title rights.
In conclusion, although clear progress has been made by Aboriginal communities
in Australian law, grave problems remain, given the apparent lack of an overarching
protective principle or instrument and the ad hoc treatment of indigenous rights.

Ongoing environmental issues in Oceania

The interface between harmful commercial practice and lax laws and incomplete
indigenous rights instruments is a problem much in evidence, although some other
areas appear to promote much stronger respect for traditional ways and knowledge.
The Final Report of the International Marine Project Activities Centre Limited (IMPAC)
lists numerous case studies intended to study local practices, cultures and the interface
between Aboriginal groups and the environment:

Many government regulations in the Pacific, however, apply management concepts

and models developed elsewhere or by international processes and do not properly take
into account the customary practices and traditional knowledge – even though there
is a high degree of congruence between the local customary systems and these other
models. (IMPAC, undated)

The harmful Western practices emerge as one reviews the numerous case studies
presented by various participants in the work, including attacks on biodiversity that are
acknowledged to also be attacks on traditional legal and policy regimes. An example
from Papua New Guinea touches on some of these issues:

PNG is a biodiversity ‘hot spot’ and has the second largest variety of species in the
Pacific with 40,000 square kilometres of reefs; it hosts 7% of the world’s biodiversity.
Major threats of this exceptional biodiversity include logging, mining, destructive
fishing and subsistence practice methods, and industrial and natural disasters.
(Henao and Genolagani, undated)
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 81

This case study also cites the ‘mining policy’ funded by the World Bank, and the inclusion
of biodiversity in local protocols, but the authors lament the lack of implementation.
Another interesting aspect of the ongoing accommodation between local governments
and indigenous communities is the newly adopted ‘six feet law’, ‘stating that the first
six feet depth of the land belongs to the customary owners, while the land under this
burial limit, belongs to the State’ (Henao and Genolagani, undated).
The differences between Western and customary forms of governance are also
emphasized in a case study on Palau in Micronesia. In villages ruled by traditional
chiefs, conservation was achieved by declaring moratoriums (buls):

Breaking buls was a serious misconduct and would bring shame and dishonour to
the lawbreaker. The role of Taboos on food (e.g. eagle spotted ray) was and still is
important in marine resources management, as it could lead to the effective protection
of endangered species. (Ridep-Morris, undated)

The use of taboos is also important in Vanuatu, although they have now been incorpo-
rated in the newly enacted Environmental Management and Conservation Act (2003)
(Nar, undated).
The inclusion of aboriginal values in local law is also present in New Zealand,
although the Western laws on which local regulations are based tend to separate
‘sectors like plant, land, water and fishes’, in contrast with traditional Maori values and
management practices (Havemann, undated). This case study also raises a different
question: what is the difference, if any, ‘between indigenous and place-based peoples?’,
a question also raised in Chapter 1 by a scholar researching African peoples. No answer
is proposed here. Another unanswered question is how to protect traditional knowledge
from exploitation, as ‘99 per cent of traditional knowledge is used commercially by
outside users’ in Pacific countries (Evans-Illidge, undated).
The usurpation of both traditional knowledge and of marine biodiversity itself by
outsiders remains a grave problem:

Marine resources are of great importance in the Fijian communities, historically,

culturally, and economically. People are identified by the land, animal, sand, fish that
they traditionally own – so they are strongly identified with the environment which is
of great importance in their culture. (Tuivanuavou, undated)

Authors and researchers in the area view the establishment of more ‘taboo sites’
(goligolis) as an increasingly viable manner of achieving effective site/species protection.
Despite significant recent increases in their numbers, these sites are not supported by
government instruments but only by NGOs (Tuivanuavou, undated). In addition, even
‘taboos’ are insufficient for marine protected areas (MPAs), as the issue of the ‘eco-
services’ provided by these areas, to benefit both local and larger communities, must
also be considered:

. . . different ecosystems should be regarded as a whole as land and sea are intimately
connected for conservation management. MPAs can only be successful if the watershed
is also managed. Vanuatu for instance is trying to manage the islands as a whole
instead of sectionalizing. (Tuivanuavou, undated)
82 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

The findings of the IMPAC report were considered by the World Conservation Union
(IUCN) Secretariat for the Commission on Environmental Law. It created a Specialist
Group on Indigenous Peoples and Environmental Law, which met in December 2002
for the first time in Gland, Switzerland (Craig, undated). In general, the report indicates
a very impressive approach to the marriage of customary law, traditional knowledge
and state laws. It also recognizes the importance of traditional knowledge for the
conservation of biodiversity, and for the protection of ‘natures services’ (Daily, 1997),
as well as the need to combine traditional knowledge with recent scientific research,
particularly in the field of ecosystem management.
It is regrettable that the merging of these harmonious strands cannot be found
in many other locations, where confrontation, rather than mutual understanding
and complementarity, seem to be the rule as the only form of interaction between
indigenous peoples and the legal regimes of the countries they inhabit. What is clearly
missing is a full understanding of the human rights dimension of their environmental
plight. Craig Scott (2001a) notes:

An Aboriginal community may have certain rights within Article 27 of the ICCPR
related to land and natural resources because of the way the environment ties into their
cultural community survival needs. Some of these rights may have a property rights
dimension. These are still human rights even if there is no general (non-treaty) right
to property in international human rights law and even if most other communities
cannot make exactly the same claim because they do not have a similar mix of cultural,
spiritual, and economic ties to the land base and resources.

Aboriginal land rights in New Zealand

We, the hereditary chiefs and heads of the tribes of Northern parts of New Zealand,
being assembled at Waitangi, in the Bay of Islands, on this 28th day of October, 1835,
declare the independence of our country which is hereby constituted and declared to be
an Independent State under the designation of the United Tribes of New Zealand.25

The situation in New Zealand is quite different than that of Australia regarding
indigenous peoples. There are now estimated to be over 60,000 Maori in New Zealand,
or more than 15 per cent of the total population (Morse, 2002). The Maori consider
that anyone who ‘self-identifies as Maori’ has met the test, as there is no government-
sponsored test to identify members of the group. The Maori’s own institutions foster
language retention for children, and New Zealand schools offer at least partial
instruction in the Maori language, so that many aboriginal peoples go on to higher
education today, and English and Maori languages now have equal status:26

Maori chiefs eventually negotiated the Treaty of Waitangi (1840) in both languages,
and . . . it has also come to symbolize once again the partnership and commitment to
mutual understanding between the two cultures. (Morse, 2002)

In 1975, the Treaty of Waitangi Act was adopted and the Waitangi Tribunal was estab-
lished, with the mandate to examine disputes, defend the appropriate interpretation of
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 83

the treaty, and to make practical recommendations to the government. Although the
tribunal cannot make binding judgements, the government has, in fact, accepted all
the solutions proposed by the tribunal in various disputes (Morse, 2002).
Regarding their traditional territories, fisheries, rather than hunting and trapping,
have been the major concern of the Maori:

For over one hundred years, Maori had argued before the Crown, the Waitangi Tribunal
and the courts that the guarantee of ‘full, exclusive possession . . . of their fisheries’
contained in the Treaty of Waitangi had never been given effect. (Stavenhagen,
2002)

The Treaty of Waitangi’s Fisheries Deed of Settlement of 1992, had the Crown paying
NZ$150 million, so that Maori could ‘purchase half a share in Sealord Products Ltd
(New Zealand’s biggest fishing company) holding 27 percent of the New Zealand fishing
quota’ (Stavenhagen, 2002). Hence Maori appear to be more integrated in the general
and economic life of New Zealand than many aboriginal groups in other countries. In
contrast, Morse (2002) says:

. . . from the vantage point of total land quantum that is currently in the hands of or
dedicated to the exclusive use of original owners of the land, then Australia has the
best record by far, even though its courts had failed to accept the application of the
common law doctrine of aboriginal title to the nation until 1992. Nordic treatment of
the Sami would then deserve the worst rating with New Zealand a close second.

In addition, CERD has been working with New Zealand on the implications of the
Foreshore and Seabed Act of 2004. Rodolfo Stavenhagen (2002)explains:

Both foreshore (the area of land between the low and high tide marks) and seabed have
long been a part of Maori environment, culture, economic activity and way of life,
basically for marine farming and small scale sand mining, more recently for tourism.

The problem arose because, according to New Zealand, the ‘government understood
that foreshore and seabed in New Zealand was generally owned by the Crown’, an
understanding based on existing legislation and domestic case law (1963 Ninety Mile
Beach case) (Stavenhagen, 2002). But the New Zealand government subscribed to CERD
and claimed that the Foreshore Act was intended ‘to preserve the public foreshore and
seabed in perpetuity as the common heritage of all New Zealanders and to recognize
the rights and interests of individuals and groups in those areas’ (Stavenhagen, 2002).
In Chapter 10, we will return to the implications of using the ‘common heritage
of mankind’ regulatory framework as a possible strategy to be used in defence of the
rights of aboriginal peoples. In this case, it seems the act was used by the government
of New Zealand for a purpose contrary to that goal. Nevertheless more research is
necessary to assert whether the position of Maori in New Zealand is one of progress and
advancement, or whether this is a case of assimilation, which remains essentially a form
of elimination of aboriginal communities. Stavenhagen argues (2002), in a section
entitled ‘The Challenge: Reducing Inequalities’ that ‘Maori are highly integrated into
84 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

the wider national economy at all levels and made a significant and vital contribution
to it, as workers, owners, investors and consumers’.
There are, however, racial inequalities that ‘continue to exist in health, housing,
employment, education, social services and justice’ (Stavenhagen, 2004). While it is
highly desirable that any gaps between Maori and other New Zealanders be eliminated,
it remains unclear whether Maori will retain their existence as a people when that gap
has been closed.

PRECEDENTS IN LAW: THE TRAIL SMELTER

ARBITRATION ON ENVIRONMENTAL HARMS

[U]nder principles of international law, as well as the law of the United States, no
State has the right to use or permit the use of its territory in such a manner as to cause
injury by fumes in or to the territory of another or the properties or persons therein,
when the case is of serious consequence, and the injury is established by clear and
convincing evidence.27 (emphasis added)

No one can dispute the importance of the Trail Smelter Arbitration, although the extent
of its influence over international environmental jurisprudence is the subject of much
debate. The facts are well known. Consolidated Mining and Smelting Company had
established the Trail Smelter for the extraction of sulphur from the fumes (McCaffrey,
2006). The International Joint Commission (IJC) (Canada and US) started by making
an ‘exhaustive examination’ of the facts (Read, 1963), thus placing itself above all recent
courts dealing with pollution harms, none of which had the desire or the foresight to
actually investigate the claims of harm brought to them by various indigenous groups.
In fact, the IJC’s report recommended the drastic reduction of emissions in order to
ensure that no trans-boundary harm would ensue (McCaffrey, 2006). Nevertheless, no
health study was even considered in order that ‘serious consequences’ to human health
might be properly assessed. The US was prepared to delve into other cases that might
indicate the correct procedures to follow when sovereignty (or ‘quasi-sovereignty’)
might collide (McCaffrey, 2006). Many years later, Principle 21 of the 1972 Stockholm
Declaration on the Human Environment separated the references to sovereignty and to
harm in its formulation. In addition, it did not qualify the severity of the harm required
to trigger legal mechanisms:

States have, in accordance with the Charter of the United Nations and the principles
of international law, the sovereign right to exploit their own resources pursuant to their
own environmental policies, and the responsibility to ensure that activities within their
jurisdiction or control, do not cause damage to the environment of other states or of
areas beyond the limits of national jurisdiction.28

It is unclear, from the point of view of justice and fairness, why ‘sovereignty’ permits any
country to harm its own environment, as the consequences of environmental harms are
seldom confined within borders anyway. The consequences of environmental harms
affect territories and people worldwide, and climate change is an excellent example of
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 85

this (see Chapter 8 and the discussion of global warming and the Nunavut people in
the Arctic).
The second aspect of this principle is even more important, but, as listed, it is
equally incomplete. It relates to the question of the true import of ‘environmental
damage’. It is a great improvement over the Trail Smelter principles, in that ‘damage’
is here not qualified by ‘severe’, ‘significant’ or other limiting characteristics. But it
is still insufficient, and it was with scant justification in 1972 (and absolutely none in
this century), that environmental harms or damage were still not linked to the health
and normal function of human beings – not only those facing immediate exposure in
the area, but also those far removed, such as in the Arctic regions. Nevertheless, the
obligation to a state’s own citizens is not clearly articulated in law. For those living in
other states, the IJC refers to the duty of protection beyond one’s borders, as it was
apparent, for instance, in the Corfu Channel case,29 where that state duty is explained
as ‘not to allow knowingly its territory to be used for acts contrary to the rights of
other States’. Similarly, the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), 1997, ICJ
7, para. 53 (September 25) argued for:

The existence of the general obligation of States to ensure that activities within their
jurisdiction and control respect the environment of other States or of areas beyond
national control is now part of the corpus of international law relating to the
environment.

Yet even this formulation, clearly arising from the tradition of Trail Smelter, over 50
years after it, refers to the ‘environment’ as a separate entity, without recognizing
the connection between humankind and their habitat (Westra, 2004a). However,
the case represents a great improvement over its precedent in Trail Smelter. In Judge
Weeramantry’s dissenting opinion (1997):

Environmental rights are human rights. Treaties that affect human rights cannot be
applied in such a manner to constitute a denial of human rights, as understood at
the time of their application. A Court cannot endorse activities which are a violation
of human rights by the standards of their time, merely because they are taken under a
treaty which dates back to a period when such action was not a violation of human
rights.

Hence, even applying the precedent of Trail Smelter to modern cases, as Weeramantry
argued, that case ‘could not operate as precedent on the basis of environmental norms
as though they were frozen in time when the Treaty was entered into’ (Weeramantry,
1997).

THE ROLE OF ECONOMICS IN

INDIGENOUS PEOPLES’ ISSUES

The main debates in the jurisprudence pertaining to indigenous peoples fall into at
least five major categories: first, the question of territorial integrity and that of title
86 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

to their lands and resources; second, the impact of economic/industrial (especially

extractive) activities on traditional practices, and on ecosystem and human health;
third, the lack of protection available to indigenous communities by local governments;
fourth, the power of the World Bank Group and the IMF, and the limits of the guidelines
under which they operate in relation to indigenous peoples; and fifth, the question of
‘consultation’ v. ‘consent’ to the extractive/industrial activities.
As the literature on Trail Smelter acknowledges (Handl, 2006), both Trail Smelter
itself and other cases involving indigenous groups arise primarily from conflicts between
environmental/human rights, and the economic thrust of industrial operations aimed
at ‘developing’ or ‘expanding’ the present economic basis of their operation, either
in general, in some remote location, or in various developing countries. Essentially,
it is consistently the economic motive, viewed as both ultimate and determinant, that
initiates most disputes. But the extractive/mining operations that are most dangerous
are not, for the most part, the effort of an individual company. The funding required
to bring about these large projects requires solid outside financing, and most often a
coalition of corporate persons. Hence the World Bank Group and the IMF are in an
ideal position to commit to and enforce the strongest regulations for the protection of
the indigenous peoples at risk.
In order to examine the root of the problems we are discussing, I start by reviewing
the fourth and fifth issues listed above in order to pinpoint one of the causes of the
major problems discussed, the sine qua non, almost, of the hazardous operation we have
examined.

The World Bank, indigenous peoples and the problem of consent

The first, second and third issues listed above are closely related, as we shall see below.
In Chapter 3 the importance of ‘collateralism’ was considered and in Chapter 2 I
attempted to define eco-footprint crime. In both cases, the harmful/criminal activities
are the effects, or perhaps the ‘side effects’, of corporate/industrial activities, primarily
but not exclusively mining and other extractive operations. For the most part, it is these
large-scale activities that result in eco-footprint crimes, that is, that give rise to criminal
activities such as grave breaches of human rights, beyond the obvious overuse of local
resources to the detriment of indigenous peoples and their lands.
Large-scale activities by transnational corporations based in wealthy Northern
countries tend to be supported by the IMF or the World Bank Group, both of which are
ostensibly committed to the alleviation of poverty, especially in developing countries. The
World Bank has prepared studies and developed policies since the early 1980s, intended
to ‘mitigate harms to indigenous groups’ through the projects they finance (Goodland,
1982; MacKay, 2005). But we cannot expect too much from these documents. At best
those of the Bank state that it ‘should avoid unnecessary or avoidable encroachment
onto territories used or occupied by tribal peoples’. It also rules out involvement ‘not
agreed to by tribal peoples, requires, guarantees from borrowers that they would
implement safeguard measures and advocates respect for indigenous peoples’ rights to
self-determination’ (MacKay, 2005).
Compliance with the first Operational Manual Statement produced by the Bank
(OMS 2.34) in 1982 was slow. The 1986–1987 first review of implementation of the
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 87

policy, four years after it had been adopted, found that only 2 of 33 World Bank Group
projects substantially complied with the policies (MacKay, 2005), leading to ongoing
critiques by indigenous peoples and NGOs. The major lack of compliance with the
policy prompted a revision and update of OMS 2.34, so that in 1991 the Operational
Directive 4.20 on Indigenous Peoples was adopted.30
This document represents an improvement on the previous manual as it requires
indigenous input for all projects, as well as respect for indigenous lands and resource
rights; it also demands that local domestic legislation be strengthened (MacKay, 2005).
Nevertheless the requirements of OD 4.20 were still judged to be insufficient, largely
due to limited compliance by both the Bank and its borrowers with those requirements.
Internal evaluations continued to note that newer drafts under discussion had to
respond, minimally, to indigenous demands that their internationally mandated rights
be respected, that is:

. . . their right to free, prior and informed consent, recognition and protection of terri-
torial rights, self-identification (as the fundamental criterion in determining the
peoples covered by the policy), a prohibition of involuntary resettlement, and respect
for indigenous people’s rights to self-determination. (Griffiths, 2003a; see also
Griffiths, 2003b)

Even if the policy prescriptions of the instruments of the World Bank were sufficient
to reflect the mandates of the UN Permanent Forum on Indigenous Issues, the results
of the applications of those policies, ‘were not satisfactory in the energy, mining,
transportation and environment sectors, which comprise 65% of Bank commitments’.31
However, even if their intentions were the best, there are several problems that the
World Bank projects encounter: some are formal and internal; others are external and
contingent, as we shall see. But the role played by the Bank cannot be underestimated
when we consider the jurisprudence that involves indigenous groups. In order to fully
appreciate both its policies and the respective applications of those policies, it might be
useful to start with the ‘Preambular Paragraphs’ of OP 4.10 (MacKay, 2005), which is
the document presently in use:

Para. 1 states that the document ‘contributes to the Bank’s mission of poverty reduction
and sustainable development by ensuring that the development process fully respects
the dignity, human rights, economics and cultures of indigenous peoples’

This statement is neither fully defensible as ‘true’ as it stands, nor does it represent a
clear plan of action of the Bank’s future projects. In addition, in the same paragraph, we
find that ‘the borrower must engage in free prior and informed consultation (‘FPICon’)
with indigenous peoples’, and that this mandate is valid for both projects where the
Bank is the sole lender and where it is simply one of several (World Bank Group, 2004).
Further, the Bank will ‘include measures to avoid potential adverse effects’, or, if ‘not
feasible’, it will ‘minimize, mitigate or compensate for such effects’.
The second paragraph of this document, however, does ‘recognize that indigenous
peoples’ cultures and identities are inextricably related to traditional lands and
resources’ (MacKay, 2005), and thus that these people will be exposed to risks and im-
pacts beyond those to which other groups would be exposed. In contrast, indigenous
88 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

peoples ‘play a vital role in sustainable development’ so that special (and increasing)
recognition must be given to their rights.32
In the next section, I consider more closely these preambular requirements, both
through the internally generated position of the World Bank and through the conflicts
that arise from those requirements.

Internal issues within the World Bank: Consent or consultation?

The meaning of ‘free’, ‘prior’ and ‘informed’
‘Consent’ is a concept that is clear to understand. It should mean that the indigenous
group in question should be able to veto a project that, after a period of discussion,
information gathering and consultation, it finds it cannot approve. When we turn
to ‘consultation’ instead, we find a truncated approach to the broad ‘community
consensus’ each project is intended to secure. That is the main difference between
free, prior, informed consent (FPIC) and free, prior, informed consultation (FPICon).
The former implies an ongoing process requiring the latter.
Both consent and consultation need full prior disclosure of information presented
in terms and in a language that are fully understandable by the people affected by
the decision. Nor is the ‘broad community support’ clearly defined: ‘It is a general
principle of law that consent is not valid if obtained through coercion or manipulation’
(MacKay, 2005). Given the inequality present in processes involving indigenous peoples
and powerful and wealthy corporations and their lenders, at least some level of manipu-
lation can be assumed. In addition, neither the ‘community support’ nor the ‘freedom’
of the final decision is ever monitored by established mechanisms. The sequencing
itself is unclear; when is the support to be secured? Probably, the intention is to seek it
after the borrower has submitted a proposal to the Bank. At that stage there must be
a clear interplay between the Bank, the borrower and the country where the specific
indigenous group lives. I return to this topic in the next section.
For now it is sufficient to mention that various countries’ domestic law defines
their own requirements for FPIC.33 The process of consultation is therefore basic and
necessary, but it is insufficient and the concept is by no means equivalent to ‘consent’, a
far stricter requirement. The effective switch from one term to the other is reminiscent
of the industry-led initiative by chemical companies to engage in ‘consultation’ with
the general public affected by their hazardous operations in North America. The result
of such a process of ‘consultation’, based on all parties sitting around a table while the
affected people voiced their concerns, usually resulted in some public relations efforts
but no real change, making it is easy to be cynical about the possibility of tangible
change ever resulting from ‘consultation’ alone. In fact, the whole process could
be termed simply a public relations operation, even in countries like Canada where
people’s human rights are somewhat better developed and enforced than they are in
other areas where indigenous peoples live (Westra, 1994a).
One needs to understand the basic imbalance between such different groups with
disparate interests, and, most of all, with entirely different powers, to see these exercises
for what they really are. Indigenous peoples have been clear on what they want: their
right to express FPIC.34 The World Bank Draft Indigenous Peoples Policy Draft is
criticized because it does not incorporate previous recommendations by indigenous
peoples, because it confuses consultation with effective participation and ‘. . . it fails
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 89

to recognize the right to free, informed prior consent’ (McKay, 2005). The affected
groups clearly understood that ‘FPICon resulting in broad community support’ is not
the same as FPIC, so that the manipulation involved in making the latter appear to be
like the former is an action that ‘lacks any basis in international law’.35
What is offered is, at best, a nebulous goal such as ‘development’. But most
indigenous groups want to be left alone to live their lives in the traditional ways they
have practised since time immemorial, and not to ‘develop’ in some forced and foreign
direction. For instance, an indigenous Mayan group in Guatemala, the Sipakapa of San
Marcos, live peacefully, practising agriculture and animal husbandry. In 2005, Montana
Exploradora, a subsidiary of the Canadian/US Transnational corporation Glamis Gold,
received US$45 million from the World Bank Group to exploit an open pit gold mine in
their area.36 The original video with English subtitles, demonstrates clearly the vast gulf
between the arguments and proposals of the mine representatives, and the responses
of the local people. In the final analysis, the people’s ‘no’ should have meant just that.
ILO Convention No. 169 and even the Constitution of Guatemala demand consultation
with the indigenous peoples; the result was not consensus but a resounding ‘no’ to the
project, but that was not respected and the exploration and work continued. While the
Guatemalan courts are still to pronounce themselves on the topic, in April 2006 the
open pit mine was in full operation, resulting in highly toxic cyanide ponds and the
heedless use of the scarce local water for industrial activities. In the video, the people
ask ‘what is our advantage?’. The answer to this question remains unclear, while the
damages inflicted emerge clearly, and the courts deliberately proceed at a slow pace as
the corporation continues with its unwanted and harmful ‘development’.
Some have argued that it is wrong to: first, view the World Bank Group as a fully
homogeneous group, inherently inimical to any policy of respect for human rights and
ecological integrity;37 and second, as incapable of influencing domestic laws in a way
that ‘facilitates norm internalization’ (Sarfaty, 2005).
Sarfaty (2005) does present evidence of the presence of agreements between various
‘parties’ within the World Bank, and she emphasizes the conflict that exists between
environmentalists (as a ‘second class’ group) and anthropologists on one side, and
the economists on the other. Nevertheless, the Bank Group is a unitary body, making
important decisions through its own international decision-making processes. In fact
this process and unitary decision-making define it as a legal entity (Westra, 2004a).
The presence of internal conflicts, even if proven, is only meaningful up to a point. It
parallels the case of accused persons speaking of their own internal conflicts leading
to a criminal act; interesting mainly to psychologists, and useful at the penalty stage of
trials, but essentially not fully exculpatory.
The second point of Sarfaty’s (2005) argument about how the World Bank shapes
domestic law, actually makes the weight of responsibility resting on their collective
shoulders even clearer. Some of the positive aspects of this reality are the topic of the
next section.

An aside on corporate/institutional decision-making

The legal and moral status of the corporation should be discussed in the context of
mens rea requirements for assaults/convictions in corporate crimes. To sum up, briefly,
90 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

corporations are indeed legal persons, and there are several theories that address
the meaning of that terminology (Chick, 1993; French, 1984). For our purpose, it is
sufficient to mention three major positions to predicate corporate intentionality: fiction
theory, legal aggregate theory, and the position that is taken to be most appropriate,
corporation’s internal decision structure (French, 1979). Fiction theory has its roots
in Roman jurisprudence, but its main flaw is that, in relying on the description of
‘legal fictitious persons’, it ignores the biological existence of real persons, as well
as, by implication, of any others. Legal aggregate theory recognizes the biological
reality of persons and grants priority to these legal subjects, while treating corporate
persons as purely derivative, and identifying them only with ‘directors, executives and
stockholders’ (French, 1979). In so doing, however, aggregate theory supporters are
choosing arbitrarily where to ascribe responsibility, and make it impossible to distinguish
between a group (or mob) and corporate reality.
A case in English law demonstrates the difficulties embedded in the first two
theories. In Continental Tyre and Rubber Co. Ltd. vs. Daimler Co. Ltd. (1915) (K.B., 893),
a company whose directors and shareholders were German subjects and residents, was
incorporated in England and carried on its business there. The question was whether
Continental Tyre should be treated as an English subject and could bring suit in an
English Court (while Britain was at war with Germany). The Court of Appeals’ majority
opinion (five to one) was that, ‘the corporation was an entity created by statute’, hence
that it was ‘a different person altogether from the subscribers to the memorandum,
the shareholders on the register’ (French, 1979). Hence, the corporation’s biological
composition may not be identical to its true ‘personhood’ or its intentional structure.
It is also worthy of note that not all who are subjects of rights can in fact be the
administrators of rights, and infants, foetuses, animals, future generations and eco-
systems are relevant examples of entities that have been declared at one time or
another to have some rights, although it has never been argued that any of these could
administrate their own rights (Stone, 2000). If we accept a non-specific description of
a person, such as the subject of a right, we can at least make the following claims: first,
biological existence is not always necessary to personhood; and second, the subject of a
right is ‘the noneliminatable subject of a responsibility ascription’ (French, 1979).
Responsibility is the necessary correlative of a right. In this sense, it goes beyond
simply being the one (or the corporate person) who performed an action. We must
address the question of intent. For corporations and institutions, the corporate internal
decision-making (CID) structure is the locus of the intentionality we intend to establish.
Through the CID structure, corporate power is deployed, setting in motion a series of
actions flowing from a central, hierarchically made decision, but involving the ‘acts of
biological persons who . . . occupy various stations on the organizational chart of the
corporation’ (French, 1979).
An advantage of this approach is to be able to maintain corporate responsibility
while also, at the same time, retaining the ability to consider varying degrees of intent
or of desire to bring about a certain result, the product of corporate ordered activities.
French’s (1979) argument strongly supports corporate responsibility and, because of
its inclusivity, could easily be extended to other institutional bodies, as long as these are
also possessed of ‘internal decision-making structures’. Can French’s argument help to
redefine the mens rea question? French assumes the presence of intentionality; would
that impose a heavier burden upon regulatory offences cases? Perhaps we can argue that
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 91

the CID structure approach implies intentionality as corporate activities are performed
by subjects of rights in all cases where an action has been performed or omitted. But
neither institutions nor corporations may be free to be the subjects of rights without
accepting the corresponding full responsibility toward all other right holders, be they
individual or corporate.
In other words, once a corporate body has been distinguished from a mob or an
aggregate, and is, in fact, defined by its structure, then it is clear that its very nature is to be
capable to intentional agency; that is the root of its ‘personhood’. In addition, because
it is not a biological entity, it can also be argued that such persons are not capable of
the emotions that characterize individual biological entities. Corporate persons then,
can only rationally intend whatever activity they choose; such actions cannot be the
result of sudden impulses or passions (provocation), fear for its own life (self-defence)
or addiction (intoxication). Neither mental disorders nor automatism or any other
syndrome is possible. Hence, in a sense, by claiming to be persons, yet admitting they
are not individual biological persons, corporations may represent the clearest examples
of pure purposefulness or desire to bring about certain results, including the activities
whose results are the physical elements of an actus reus.
If this line of argument is accepted, the court’s burden of proof in regard to the
mental element of a corporate fault will be substantially reduced and simplified. Once
the physical elements of the fault are present, and after they can be causally connected
to the corporate person, the mental states that connote its agency are limited to variants
of intent, and may range from the purposeful desire to bring about a certain result,
to the certain knowledge that the result will occur, to the probability or possibility
(recklessness) that a result might follow.
But corporations do have aims, goals and purposes, as do institutions (and many
of these are even codified in their statements of intent or codes of practice). Thus, the
only conclusion one can draw is that, for the most part, and barring sabotage or people
acting outside the corporate perimeter on their own, whatever corporations actually
do is something they decided, planned out and fully intended to accomplish. That
guarantees the responsibility of the perpetrators. Chick (1993) argues that the US has
had a long time to define and regulate corporate rights in relation to constitutional
law. However, he adds: ‘it was only through the acceptance of one particular corporate
personality, the ‘aggregate theory’, that American courts even decided that corpora-
tions were entitled to claim constitutional rights’ (Chick, 1993). But aggregate theory
is not correct, and that is why it is not generally accepted as the best way to under-
stand corporate personality and function. The reasoning employed in order to link
corporations and constitutional protection is that individuals, those who compose the
corporation, should not lose constitutional guarantees because they join together in a
lawful association. I find this argument to be incoherent: if the lawful association is to
provide the associate with a new entity, with legal personality and corresponding rights,
then it is not logical to argue that the new body is nothing but an aggregate of persons
and nothing more. If the newly formed association is one, rather than as French (1979)
argued, a mob or a heap with no unitary defining characteristics, then there appears to
be no grounds for requiring special status for it, any more than it would be to require
and demand such status for a crowd.
French (1979) is correct in saying that to enjoy some rights (and legal status),
something more is required than a mass of individuals. There has to be something that
92 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

makes many into one, at least in one respect. He found this unifying element in the
CID structure of the corporate/institutional body. It is not sufficient to say that each
component part of the association has rights and duties, true though it is. There are
simply no grounds for additional legal status and personality, unless we can identify
something that serves to unify the corporation. The CID structure provides unity
through purpose and therefore provides that ground. However, the additional entity,
as it acquires the right to be and to act like single individuals, single citizens, has duties
and obligations.
It is possible to argue that corporate personality theories have been manipulated
and are still discussed from the standpoint of political ideals (Romano, 1984). But what
remains clear is that in order to be one person there must be something to permit
such terminology, as an undirected crowd or mob has no status as such beyond that of
the individuals that comprise it. On that basis, therefore, the CID structure theory of
corporate personality can be accepted as the most accurate. To sum up:

 We cannot accept diminished responsibility of any sort for an action because, as a

separate unit different from its human components, I can never claim defences or
mitigating circumstances based on human frailties and emotions.
 Based on similar reasons, the lack of human features, we need not claim for it
the status of ‘vulnerable accused’ in courts of law, and seek for it corresponding
Canadian or other legal protection (Sheehy, 1982).
 Having been accorded independent status and rights in the law, this will entail
corresponding duties and responsibilities; individual purposes cannot be pursued
without considering the rights of others as imposing on individual freedom. So
too the corporation must assume full responsibility for all its activities and their
results.

The World Bank’s influence on domestic laws?

It is vital to understand fully the role of the World Bank in the projects supporting
extractive industries before turning once again to the case law, and this brief section will
provide some additional information. As most of the cases I consider pit a domestic or
international court against a multinational corporate body funded by the World Bank,
it is clear that the ‘community support’ required, let alone the mandated ‘consent’ are
hardly, if ever, present. Nevertheless it is a fact that:

Transnational legal process, one of the leading theoretical approaches to international

law, can help explain the increasing importance of nonstate actors like the World
Bank in enforcing international norms such as human rights. (Sarfaty, 2005)38

Harold Hongju Koh (1996) describes transnational legal processes as ‘the theory and
practice of how public and private actors, nation states, international organizations’ and
others, interact to ‘interpret, enforce and ultimately internalize rules of transnational
law’.39 In fact, we noted in the Awas Tingni case, in this chapter, the importance of the
input of non-state actors into the process, which eventually helped that indigenous
group to prevail, at least for now, against corporate projects. So it would not be correct
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 93

to think of international law as simply the relation between states, when NGOs,
transnational corporations and bodies such as the World Bank, may wield such power
in their affairs, and even influence international tribunals in their decisions.
So, what is the role the World Bank Group may play? First, the World Bank can
impose a ‘policy conditionality’, that is, ‘a set of requirements and preconditions that
the recipient country is expected to meet in order to receive financial assistance’.40
But in its 1992 Wapenhaus Report, ‘the Bank’s Operations Evaluation Department
acknowledged the one-sidedness of negotiations between the Bank and borrower
countries’ (Sarfaty, 2005).41
When loans are extended to corporations rather than to countries, the situation is
even more complex. Sarfaty (2005) suggests that the Bank’s policy on environmental
assessment, for instance, has inspired guidelines for both private sector donors and
other development groups such as the Asian Development Bank, the European Bank
for Reconstruction and Development, and the Inter-American Development Bank. Yet
Sarfaty acknowledges that ‘the Bank’s institutional practices diverge from its written
policies’ and notes that ‘domestic political factors’ also play a significant role in the
Bank’s decision-making.
In is undeniable that the Bank plays an important role with developing countries’
legal and policymaking regimes, and that this role represents an integral part of
‘transnational legal processes’, but, of the three phases of these processes, ‘interaction,
interpretation, internalization’, the Bank, at best, is active at the ‘interaction’ level
(Koh, 1996), and even this ‘interaction’ does not appear to play a role with corporate
borrowers. In general, the Bank’s own culture rewards efficiency and the quantity of
loans over quality, and protracted consultations and dialogue with indigenous peoples
may contribute to neither. In addition, the Bank’s Articles of Agreement, stating that
the Bank shall not interfere in the political affairs of any member, and even more
significant, that ‘only economic considerations shall be relevant to decisions’,42 do
not prioritize human or ecological rights considerations, or even special treatment
of indigenous peoples. Even when guidelines for appropriate conduct are present,
‘punishments imposed by the Bank for failing to meet Bank conditions lack moral
legitimacy’ and, as mentioned, a ‘loan approval culture prevails’ (Sarfaty, 2005).
Another problem is that, at best, requirements for FPIC or FPICon tend to apply
only to ‘recognized’ or ‘titled lands’, thereby excluding approximately three-quarters of
the lands that traditionally are owned and are presently claimed by indigenous peoples,
as is the case in Guyana or Australia (MacKay, 2005). Because many indigenous groups
do not presently hold legal title to their lands and some may not even occupy traditional
territories because of ‘forced severance’,43 a criterion that excludes all these peoples
cannot be just.
The Bank’s OP 4.10 requires paying special attention to ‘customary rights’ and
to the ‘cultural and spiritual values that indigenous peoples attribute to their lands
and resources’.44 When the commercial exploitation of natural resources is at issue,
the required ‘broad community support’ is left undefined, although para. 18 of the
same document demands it, and the history of displaced peoples, despoiled land and
depleted resources does not encourage the belief in any positive outcomes when the
Bank supports projects related to extractive industries (MacKay, 2005).
Hence the expected ‘trickle down’ effect of desirable language in the World Bank
Group’s documents, intended to inform the domestic laws of state borrowers, or the
94 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

areas where commercial projects are funded, is no more successful than the economic
‘trickle down’ effect ever was. The Bank’s primary intent remains strongly financial, and
the ‘collateralism’ of environmental and indigenous concerns fosters – at best – some
interaction with borrowers regarding norms, but the internalization of better norms is
not clearly in evidence anywhere.
A further grave problem exists, which unfortunately has grave consequences for
indigenous peoples, as the result of corporate activities in general, even beyond the
ones funded by the World Bank Group. Robert Goodland (2003) explains:

Agencies trying to fight poverty should also redress today’s asymmetry between all
the many strong protections for capital vs. the few and little-enforced protections for
labor. The WBG [World Bank Group] and governments are often both stakeholders in
extraction. Governments’ role as regulator of industry and protector of its citizens may
conflict with its need for receipts from extraction. Governments, abetted by extractive
corporations on occasion, and often supported by the WBG, have been strengthening
national mining and hydrocarbon codes for about a decade in order to protect
multinational corporations, and to promote investment in the extractive sector. Oil, gas
and mining legislation has been changed in line with WBG advice in more than 70
countries over the last 20 years. People affected by extraction – indigenous peoples and
civil society in general – have been penalized by such mining codes, and their rights
have been reduced. The harming of indigenous peoples in Australia, Canada and the
USA is being repeated in developing countries (sometimes with WBG support).

Although the World Bank Group’s chief economist has emphasized that ‘the principle
of equality underlies poverty reduction’, the Bank has not explicitly acknowledged
human rights requirements as basic to poverty reduction. In 2000, the Bank committed
itself ‘to the Millennium Development Goals including direct poverty reduction, and
is phasing out its lending for big infrastructure projects including mines and dams’
(Goodland, 2003). UN organizations are more fully and explicitly committed to
human rights, but the World Bank Group is slowly evolving in the same direction, and
it even intervened directly in three recent cases involving gross human rights violations
(Goodland, 2003).45

THE WORLD BANK’S INSPECTION PANELS

2. The Bank recognizes that the identities and cultures of Indigenous Peoples are
inextricably linked to the lands on which they live and the natural resources on which
they depend. These distinct circumstances expose Indigenous Peoples to different types
of risks and levels of impacts from development projects, including loss of identity,
culture and livelihoods as well as exposure to disease.46

Before leaving the topic of the World Bank’s interface with aboriginal communities, we
need to consider the presence of the inspection panels that can in fact provide a forum
for the complaints of affected peoples regarding any project supported by the Bank. All
projects seeking funding start with a project concept review (as of July 2005). Several
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 95

problems emerge even at the conceptual planning stages. For instance, I question
whether the Bank’s commitments to: ‘(a) avoid potentially adverse effects on the
Indigenous Peoples’ communities’; or ‘(b) when avoidance is not feasible, minimize,
mitigate or compensate for such effects’, are even possible or logically sound.
When the vital importance of biological/ecological integrity is factored into the
project and taken seriously into consideration, then the ‘mitigation’ or ‘compensation’
aspects appear to be nothing but empty rhetoric. What is mitigation in oil extraction or
mining, against the background of epidemiological research that demonstrates a high
percentage of cancers, deformed births and other serious diseases and impairments, as
the outcome of these projects (Grandjean and Landrigan, 2006)?
If, say, 50 per cent of the population is presently affected (now and in the foreseeable
future) is a reduction to 40 per cent acceptable as mitigation? And what can possibly
compensate for the persistent ill-health, organic dysfunction and premature death
of children (Westra, 2006; Licari et al, 2005)? Finally, what is the meaning of ‘when
avoidance is not feasible’? An unfunded project seems to be the obvious answer to the
‘feasibility’ of avoidance.
Turning now to the question of ‘identity’ (paras. 3 and 4), the document is more
helpful, starting with a definition:

4. For the purposes of this policy, the term ‘Indigenous Peoples’ is used in a generic
sense to refer to a vulnerable, social and cultural group, possessing the following
characteristics in varying degrees:

1 self-identification as members of a distinct indigenous cultural group and recogni-

tion of this identity by others;
2 collective attachment to geographically distinct habitats or ancestral territories in
the project area and to the natural resources in these habitats and territories;
3 customary cultural, economic and social, or political institutions that are separate
from those of the dominant society and culture; and
4 an indigenous language, often different from the official language of the country
or region.

It is also important to note that, although the ‘project preparation’ requires ‘screening
by the Bank to identify whether Indigenous Peoples are present in, or have collective
attachment to, the project area’, when we turn to ‘a social assessment by the borrower’,
given the borrower’s interest in securing funds, her impartiality is, at best, in question.
Equally problematic is ‘a process of free, prior, and informed consultation’. This require-
ment means little unless the final term is changed to ‘consent’ (as argued above), and
the reference to ‘broad community support’ is clearly defined.
Nevertheless the World Bank has undertaken to remedy any lacunae that may arise
in the process through inspection panels; 40 of these have in fact been reviewed from
1996 to January 2007. It is useful to review two of the ‘investigation reports’ arising
in response to the ‘requests’ of indigenous groups. The first is the most instructive as
it includes both the request and the report itself, dealing with forests in Cambodia;
the second is only at the request stage and concerns the forests of the Pygmies of the
Democratic Republic of Congo.
96 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Cambodia: Forest concession management and control pilot project

7. The requesters claim that through a flawed design and poor implementation the
Bank promoted the interests of the logging concession companies rather than those of
the people.47

This passage indicates the tone of the whole request, as it details, ‘among other things,
human rights abuses and illegal logging of resin trees’, with no attempt to correct any
of this on the part of the Bank. The request also cites:

. . . noncompliance with Bank policies and procedures, including safeguards policies

such as OP/BP 4.10 on Environmental Assessment, OP/BP on Natural Habitats,
OP/BP 4.36 on Forestry, OD 4.20 on Indigenous Peoples, and OPN 11.03 on
Cultural Property.48

Clearly most of the problems cited were in conflict with the required ‘social assessment’
by the borrowers, with the addition of only a ‘19-day consultation period’, insufficient to
permit the forest communities informed input, let alone fully informed consent.49 The
main purpose of the subsequent investigation (approved by a panel, with Chairperson
Professor Edith Brown-Weiss and others visiting Cambodia from 12–19 March 2005)
was procedural, that is, intended ‘to establish whether the Bank complied with its own
policies and procedures in . . . the Project’. Nevertheless, besides the expected review of
all documents and procedures, the second part of the investigation was an ‘in-country
fact-finding visit’.50
It is imperative right at the outset to understand the interface between forests and
Cambodia’s society, and to be aware of the threat to the 13 million hectares, or about
73 per cent of the country’s forests and that since the mid-20th century, more than a
million hectares or over 10 per cent has been lost to deforestations.51 Forests represent
the only livelihood available to indigenous communities, as well as the basis for a strong
cultural and religious interest. However, Cambodia’s forests also represent a great
untapped source of income for the Cambodian government and its concessionaires:
‘The value “on the stem” of the average mature tree in Cambodia of the 1990s was at
least US$50. The value converted to lumber and plywood would have been US$250 or
more’.52
In addition, while indigenous peoples do not, normally, work in the timber industry,
a great percentage of them owns resin trees,53 which net them an average of over
US$300 per year per family, an income loss that would be hard to bear for indigenous
communities if the country succumbed to the lure of immediate profits:

The immediately available commercial values of timber could make an important

and desperately needed economic contribution to the country, but the unsustainable
exploitation of timber conflicts directly with the survival strategies of the rural poor,
with conservation of biodiversity.54

Some involvement of indigenous communities in the long-term permits (or concessions)

operating in certain areas might have been an option, but the government of Cambodia
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 97

which owns the forest land, was not eager to relinquish control to any local group.55
Against this background, the panel found that most of the Bank’s efforts in the 1990s
were on industrial logging, so that ‘there remains a large agenda for further policy
analysis and development related to agro-forestry, wood energy production, biodiversity
conservation and human resources development’.56
The Bank, in fact, had not recognized the tensions existing in Cambodia between
profitable forest activities and the rights of local communities. For instance the right
to tap resin trees is a legal usufruct right entrenched in law for indigenous peoples.
Funded by the Asian Development Bank, Fraser’s (2000) work states:

One of the major criticisms of the forestry sector is that for too long its primary focus has
been the sustained supply of wood products from forests in processing facilities, and
that inadequate attention has been given to the needs of forest-dependent communities,
to the broad hydrological and soil conservation functions of forests, their conservation
value and the broader significance in cultural and other terms.

In the case of the World Bank, in addition to the persistence of this attitude, there has
also been a lack of ‘emphasis on using the potential of forests to reduce poverty’.57 The
latter is particularly inappropriate, as one of the project’s objectives was ‘to demonstrate
and improve the effectiveness of a comprehensive set of forest management and
operational guidelines and control procedures in forest concession areas’.58 Hence, the
Bank was in the position to truly help develop the terms of reference for the required
guidelines, together with the United Nations Development Programme (UNDP)/Food
and Agriculture Organization (FAO) mission that same year.59 Although the ‘main
aim of the loan was to support a legal and regulatory program on the basis of which
long-term concessions were to be granted’, the staff generally viewed it as a ‘technical
assistance project’, an outlook that could not address the ‘total systems failure’ (Fraser,
2000) that was occurring at many levels, including large-scale corruption.60
The Bank indeed had policy guidelines that exclude commercial logging,61 and it
could be argued that in fact it adhered to its own policies. However, the panel acknow-
ledges that, given ‘the rampant forest destruction and community abuses’ present prior
to their loan, a more thorough investigation and a far more precautionary approach
would have been indicated.62 Finally, the project did not have adequate levels ‘of local
involvement, community consultation, and social-environmental assessment’.63
After reviewing the situation, the Bank concluded that the project should have
received far more supervision to ensure that it could develop towards a ‘broadly based
constituency’.64 Thus, in response to the request, the Bank ensured the 4 million hectares
of land under concession were cancelled65 and an additional 1 million hectares of
concessions are currently under review. Hence one can see significant, though limited,
success in redressing grievances, some of which may take a long time to be satisfied. It
will not be easy to regrow the forests that have been cut.
At least, unlike other mining and extractive projects, the impact on the health and
normal function of the affected indigenous groups was not as significant. However, the
impact of the deforestation allowed by the improper functioning of the original project
was not calculated in terms of the corresponding climate change, and was not taken in
consideration when assessing damages.
98 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Indigenous Pygmy organizations and the Pygmy Support Organization

in the Democratic Republic of Congo: Another request
If zoning of these forests were to be carried out, as the Bank’s current actions and
failings appear to indicate, without consulting the indigenous peoples, without taking
their interest into account, and after the new forest concessions have been allocated,
this operation would result in:

1. The violation of their right to occupy their ancestral lands;

2. The violation of the integrity of their traditional lands;
3. The violation of their right of access to their traditional lands and the resources
found thereon;
4. The violation of their right to manage their forests and the resources located therein,
in keeping with their traditional knowledge and practices;
5. The violation of their cultural spiritual values.66

The request submitted to the World Bank Inspection Panel on 30 October 2005 has
not yet been followed by the report of the investigation as it is ongoing at this time. It is
number 37 of the 40 requests presently listed by the Inspection Panel.67 It is worthy of
note that only four of the listed requests have been denied by the Bank, and only in the
earlier years, that is, 1994–1998.
The request of the Pygmy peoples starts with a list of failures: the failure to list
the Emergency Economic and Social Reunification Support Project (EESRSP) as a
Category A project; the failure to conduct an environmental assessment; and the failure
‘to implement OD 4.20’ despite the presence of Pygmy peoples in the area.68
The objective of the project as an ‘energy recovery loan’ includes reforms to areas
controlled by rebels. It was meant to ‘lay the foundations for reunification and economic
stability throughout the country’. In addition, it was to ensure implementation of
forestry reforms, a forest zoning plan, and intended to separate different areas for
rural development, sustainable production and environmental protection.69 To give
additional substance to the Pygmy peoples’ claim, in August 2002, a Forest Code was
adopted in the Democratic Republic of Congo.70
Hence, it seems that the Bank should have considered and reviewed very seriously
the Pygmy people’s term ‘the fallacious principles of the Forest Code’,71 as well as
ensured at least full consultation with the indigenous peoples. Neither apparently was
done, and the Forest Code itself, according to the request, is based on the Forest Law of
Cameroon (1994), and, like that document, it ignores both the traditional rights of the
indigenous groups in the area and ‘the boundaries of their traditional territories’.72
The Bank’s own ‘Preparation of a Forest Zoning Plan, Draft Terms of Reference’,
states:

Consult a wide range of stakeholders: villages, territorial and district capitals, economic
agents, etc. with a view to designing, and assessing the feasibility of various zoning
scenarios. Particular attention will be paid to consultations with Pygmy groups by
taking into account the distinctive characteristics of their nomadic or semi-nomadic
lifestyle.
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 99

The problems in this situation are akin to those arising in Cambodia: no consultation
and little understanding of, or even interest in, the interests and the traditional rights
of indigenous peoples, and a project originally intended to help foster sustainability,
later resulting in unwanted support for logging concessions instead.
The result of the lack of supervision and control on the part of the Bank is the
violation of the rights of the Pygmy peoples noted above. The ensuing damage would
lead, in their estimation, to:

1 the destruction and/or loss of their natural living environment;

2 the elimination of their means of subsistence;
3 an imposed, even forced, change to their lifestyles; and
4 serious social conflicts.

The plight of the Pygmy groups, although not fully investigated and researched at
this time, echoes the plight of indigenous peoples all over the world; to destroy their
habitat for various industrial activities is a crime against humanity (or should so be
defined). The lack of clear intent to eliminate should not excuse or diminish the guilt
and culpability of perpetrators and complicit governments.
Perhaps the Bank needs to tighten up both its follow-up procedures and the con-
ceptual and regulatory framework within which it operates. Witness the undefined
concept of ‘consultation’, or ‘broad support’, or the lack of the simple requirement of
‘consent’. It is, however, to the Bank’s credit that a majority of the requests for redress
brought to it are investigated, and that some of the most egregious injustices are re-
dressed. If a somewhat inappropriate comparison is allowed, the Bank appears to do
better than the US courts in Alien Torts Claims Act (ATCA) jurisprudence in many
cases.
Nevertheless, the effects of deforestation not only on local indigenous groups, but
also on coastal peoples everywhere, or on Arctic peoples though global warming, are
never considered, despite the widespread availability of scientific information, ecological
and biological in particular. For extractive industries, the same ‘wilful blindness’ is
apparent about the expected health results, so that the consequences are ignored for
the most part by both civil society and governing bureaucracies.

CONCLUSIONS

This chapter has reached across Europe, North and South America, Africa, New Zealand
and Australia, to touch upon some representative cases that deal with native title, self-
determination and justice. In all cases, the import of the area’s ecological integrity is
central. In addition, I considered the influence on subsequent jurisprudence and laws
of the classic locus of international environmental law, the Trail Smelter Arbitration. Its
ongoing influence on international environmental instruments cannot be denied, but,
it must be acknowledged, its major flaws have not been corrected in the 60-plus years
since its emergence.
We also considered some of the other classic cases normally cited in court decisions
dealing with environmental damage. The Corfu Channel case, for instance, is also too
100 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

general to offer specific guidance. In contrast, the well-known dissenting opinion of

Judge Weeramantry, in the Gabcikovo-Nagymaros Project, offers much greater hope for
the future instead.
Nevertheless, any hope is dashed when one considers the uneven power that, for
the most part, stands behind both corporate individuals and governments, that is, the
power of and the support for the economic motive, a power that can never be matched
by the resources of aboriginal groups. The main sources of this support come from
the World Bank Group and the IMF, especially for the largest (and most hazardous)
projects.
Hence, given the difficulty in ascribing full criminal responsibility to non-human
legal entities, I briefly described Peter French’s CID structure theory, and the application
of that theory to our problem, in order to show clearly how ‘intent’ can and should be
ascribed to a legal entity. In fact, I argued that their ‘intent’ is particularly clear and
strong, as it is not open to the mitigating presence of emotions, alcohol abuse or any
other human weakness.
It will be particularly important to keep in mind the significance of ‘intent’ as we
continue to argue for the presence of genocide in the cases discussed in Chapter 5, as
well as in Chapter 7’s analysis of genocide itself.

NOTES

1 The Mayagna (Sumo) Awas Tingni Community Case – Series C, No.79 [2001] 1A CHR 9 (31
August 2001).
2 www.worldii.org/int/cases/IACHR/2001/9.html, p. 16.
3 Constitución Politica de la Republica de Nicaragua, Managua, 9 January 1987.
4 ibid., 54.
5 Ivan Kitok v. Sweden, Communication No. 197/1985, CCPR/C/33/D/197/1985 (1988).
6 Communication No. 197/1985, submitted under the Optional Protocol of the International
Covenant on Civil and political Rights, Article 5, Para. 4, no. 2.
7 ibid., para. 4.3.
8 Citing the ratio decideni of Lovelace v. Canada, No. 24/1977.
9 Abopoz VIIX:108.
10 Mabo v. Queensland, 83 ALR High Court of Australia, (1992) 175 CL.
11 Mabo and Another v. State of Queensland and Another, 83 ALR 14, Breenan J.
12 ibid.
13 ibid.
14 ibid.
15 ibid.
16 Wik Peoples v. Queensland (1996) 187 CLR 1.
17 See also Native Title Act, 1993, 223; later, however, amended as Native Title Amended Act, 1998,
2B.
18 Western Australia v. Ward (2002) 213 CLR 1.
19 Yorta Yorta Aboriginal Community v. Victoria (1998) 1606 FLR (Austl.).
20 Western Australia v. Ward (2002) 194 ALR 538; Manus, 2006.
21 ibid.
22 Yorta Yorta, 214 CLR 444; see also Manus, 2006.
23 Yorta Yorta, 214 CLR 435.
 INTERNATIONAL JURISPRUDENCE AND THE RESPONSIBILITY OF THE WORLD BANK 101

24 Aboriginal Community v. Victoria (2002) 194 ALR 538.

25 The Declaration of Independence of New Zealand, 28 October 1835, Article 1.
26 The Maori Language Act of 1987.
27 Trail Smelter Arbitration, 35 American Journal of International Law, 6 84 (1941 at 716).
28 Report of the UN Conference on the Human Environment, UN Doc. A/CONF.48/14/Rev.1
at 3 (1973), adopted 16 June 1972.
29 Corfu Channel (U.K. v. Albania) 1949 ICJ 4 (April 1949).
30 World Bank (1991).
31 World Bank Group, ‘Implementation of Operational Directive 4.20 on Indigenous Peoples:
An independent desk review’, 10 January 2003, OED Report No. 25332.
32 United Nations, Report of the World Summit on Sustainable Development, 26 August – 4
September 2002 at 10, Article 25, UN Doc. A/CONF.199/20/Corr.1, at 10, Art. 25.
33 See for instance, Aboriginal Lands Rights (Northern Territory) Act, 1976 B42(6) 77A
(Austl.); Philippines Indigenous Peoples Rights Act, 1997, B3(g), 59.
34 Indigenous Peoples Statement at the 19th Session of the United Nations Working Groups on
Indigenous Populations, 29 July 2001; at www.forestpeoples.gn.apc.org/briefings.html
35 Comments on the World Bank Management Response to the Final Report of the Extractive
Industries at www.eireview.info/doc/P%20ManRes-short.sig.doc.; see MacKay, 2005.
36 Sipakapa No Se Vende, Video Documentary Caracol Production, Guatemala, 2005, at www.
sipakapanosevende.org
37 See for instance the ECA Watch, Jakarta Declaration for Reform of Official Export Credit
and Investment Insurance Agencies, at www.eca-watch.org/goals/jakartadec.html; the
guidelines address questions of environmental reviews to ‘benchmark projects . . . against
the safeguard policies published by the World Bank Group’ especially when they involve
involuntary resettlement or ‘indigenous peoples and cultural property’, Sarfaty (2005).
38 See also Press Release, Friends of the Earth et al, ‘Memorandum on Canisea Project
Violations of World Bank Safeguard Policies’ (17 October 2002) at www.bicusa.org/bicusa/
issues/misc_resources/338.php
39 See also Koh (1997).
40 Operations Policy and Country Services, World Bank, Review of World Bank Conditionality:
Issues Note 4 (2005).
41 See also World Bank (1992).
42 Article of Agreements of the International Bank for Reconstruction and Development, Art.
IV, 10, 60 Stat. 15 1449, 2 UNTS at 158.
43 OP 4.10 para. 4.
44 OP 4.10, para. 16.
45 The three instances involved were: (a) allegations of slavery on Myanmar’s Yadana gas pipeline
led the World Bank Group to drop the Thai component the day before board presentation;
(b) Bank President Wolfensohn personally interceded against gross mistreatment of critics
of the Chad–Cameroon oil pipeline, managing to spring the leader of the opposition,
Ngarledjy Yorongar, out of a torture chamber and to exile in Paris in May 2001; (c) President
Wolfensohn called Chinese Premier Zhu Rongji to free two researchers imprisoned while
investigating the Group’s fiercest controversy, the Western Region Project. This was a major
improvement in the Bank’s position on slavery as a non-economic, sovereignty or political
issue, therefore off limits to World Bank Group discussion.
46 OP 4.10, July 2005, ‘Indigenous Peoples’; I am grateful to Serge Selwan of the World Bank
for the information provided on inspection panels used in this section. Additional critique
and interpretation is entirely my own.
47 Credit No. 3365-KH and Trust Fund 26419 – JPN; Report No. 35556, 30 March 2006.
48 ibid.
102 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

49 Request, no. 12, p. 3; in their Response, at no. 16, the management argued that the ‘Bank
made it’s Phnom Penh office available for disclosing the forest management plans’, an
obviously poor choice as ‘forest peoples’ would be highly unlikely to travel to town to receive
explanations.
50 ibid.
51 ibid.
52 ibid.
53 ibid.
54 ibid.
55 ibid.
56 ibid.
57 ibid.
58 ibid.; note also that in 1996 the Cambodia Forest Policy Assessment recognized that
the concessions had been operated in an unsustainable manner, and recommended a
‘precautionary approach to logging’.
59 ibid.
60 Global Witness, ‘Taking a Cut. Institutionalizing Corruption and Illegal Logging in
Cambodia’s Aural Wildlife Sanctuary’, London, 2004, ‘Project’, para. 145, p. 42.
61 OP 4.36, 1 (d): ‘The Bank does not finance commercial logging operations or the purchase
of logging equipment for use in primary tropical moist forests’.
62 ibid.
63 ibid.
64 ibid.
65 ibid.
66 ibid. IV Rights and interests likely to be affected and possible damage.
67 Listed as 37. Democratic Republic in Congo: Transitional Support of Economic Recovery
Credit Operation (TSERO) and Emergency Economic and Social Ramification Support
Project (EESRSP), November 19, 2005.
68 ‘Request’, p. 2.
69 ibid.; see also World Bank, EESRSP, Technical Annex, Report No. T7601-ZR, p. 29.
70 President of Democratic Republic of Congo, Law No. 011, /2002 on the Forest Code,
www.radiookapi.net
71 ibid.
72 ibid.
 CHAPTER 5

The United States and Indigenous Peoples:

Some Recent ATCA Jurisprudence

THE US AND INDIGENOUS PEOPLES:

AN INTRODUCTION

Wounded Knee, the Trail of Tears, the Siege of Cusco, these words, vessels of meaning,
capture only a fragment of the history of suffering, actual and cultural genocide,
conquest penetration, and marginalization endured by indigenous peoples around the
world. (Wiessner, 1999)

It is perhaps unrealistic to expect a nation that started with the brutal conquest of
indigenous peoples to totally reverse its policies and practices even today, long after the
‘legacy of conquest’. In contrast, the government of the US extols the Declaration of
Independence, so that self-determination and beliefs in the natural rights of peoples to
secede are viewed as basic. The federal government eventually established a ‘trusteeship’
over Indian lands.1
The Indian Nations’ relation to the US resembles that of a ward to his guardian,
thus Indian tribes were considered ‘domestic dependent nations’. This position made
it relatively easy to conclude treaties with the Indian as ‘subjects of international law’,
until 1891, when the US Congress discontinued the practice. Nevertheless several
instruments were enacted to extend the rights of ‘Indian self-determination’, including
the Indian Child Welfare Act of 1978;2 The Indian Tribal Government Tax Status Act;3 The
Indian Self-Determination and Education Act of 1975;4 The Indian Tribal Justice Act of 1993,5
and others.
US President Bill Clinton not only appointed a native leader, the Honorable Ada
Deer, as Head of the Bureau of Indian Affairs, but he explicitly pledged to respect tribal
sovereignty (Wiessner, 1999) in a statement to Indian leaders present at the White
House:

This then is our first principle: respecting your values, your religions, your identity,
and your sovereignty. This brings us to the second principle that should guide our
relationship with the tribes and become partners with the tribal nations. I don’t want
there to be any mistake about our commitment to a stronger partnership between our
people. Therefore, in a moment, I will also sign an historic Government directive that
requires every executive department and agency of Government to take two simple
104 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

steps: first, to remove all barriers that prevent them from working directly with tribal
governments, and, second, to make certain that if they take action affecting tribal trust
resources, they consult with tribal governments prior to that decision.6

However, the US Supreme Court judgements have not always dealt fairly with indigenous
and tribal peoples, especially in recent times.7 Against this somewhat sketchy background
we need to consider the numerous cases tried by US tribunals under ATCA that involve
serious complaints advanced by indigenous peoples against US corporations. It is
important to note that US courts are also connected to inter-American laws, regional
laws and international laws. Equally important, although ATCA cases involved torts and
liability rather than principles of human rights or crimes against humanity, nevertheless
because of the nature of the complaints brought to these tribunals, they are based
precisely on issues that should mandate erga omnes obligations.

SOME RECENT CASES TRIED UNDER ATCA

IN VARIOUS US JURISDICTIONS

All these cases involve ‘egregious human rights violations’, perpetrated by multinational
corporations based in the US against local peoples and their communities, even when
indigenous status is not present. An example is Doe v. Unocal Corp.8

The law and corporate responsibility: Doe v. Unocal Corp.

The case dates back to 1992, when Unocal Corporation acquired a 28 per cent interest
in a gas pipeline project in Myanmar (Burma) (Harrington, 2002). One of the main
questions in the case is whether the project actually hired the Myanmar military to
facilitate their operations, as some of Unocal’s own employees suggested. The plaintiffs,
villagers from the area where the project was taking place, alleged that they had been
forced ‘to serve as laborers on the project’, with threats of violence, and that, in order
to protect the project’s security, the military:

subjected them to acts of murder, rape and torture. One plaintiff testified that, after
her husband was shot for attempting to escape the forced labor program, she and her
baby were thrown into a fire resulting in injuries to the woman and death of her baby.
(Harrington, 2002)

Two groups of villagers brought action for human rights violations against Unocal
and the project (under the ACTA).9 The treatment to which the villagers had been
subjected was termed by the Ninth Circuit, the ‘modern variant of slavery’ (see Chapter
3), and Unocal’s role, a form of aiding and abetting, to say the least. Unocal’s earlier
response that the plaintiffs were barred from bringing this action by the ‘act of state
doctrine’, was not accepted by the Ninth Circuit (Harrington, 2002).
Although this case is not directly related to environmental harms, it is in many ways
similar to the Saro-Wiwa case, in that the nefarious alliance between corporate crime and
 THE UNITED STATES & INDIGENOUS PEOPLES 105

egregious human rights violations are clearly present, and so is the corporate support
for the role of the military to ensure citizens’ compliance through rape, murder, torture
and terror. Scholarly writings on this case are divided on whether the concept of slavery
should have been introduced by the Ninth Circuit, as forced labour is also proscribed
in both national and international law. Tawny Aine Bridgeford (2003) argues that the
Ninth Circuit was practising judicial activism in this case. Andrew Ridenour (2001)
instead argues that the use of slavery is entirely apt in this case.
Ridenour’s concern is that municipal law should not be considered to determine
when acts are brought before the courts under ATCA, as section 1350 of the Judiciary
Act of 1789 (the Alien Torts Claims Act) permits federal district courts to hear claims
by aliens for torts committed ‘in violation of the law of nations’. When we consider
the import of ATCA’s history, it is evident that an act intended to deal with matters of
liability must deal exclusively with criminal matters instead: ‘Crimes such as genocide,
slavery, summary executions, and torture [which] have been universally held by courts
as violations of contemporary jus cogens and thus subject to liability under ATCA’
(Ridenour, 2001).The meaning of jus cogens was addressed in passing in Chapter 1
and is discussed in detail in Chapter 7. In essence, violations so defined, according
to Barcelona Traction, must be of norms that are ‘universal, specific and obligatory’;10
hence, they must be of a character beyond even the general concerns of customary
international law. For the most part, international treaties are enacted for the interests
of their signatories (Bridgeford, 2003), and derogation from their mandates does not
entail penalties other than economic or procedural, although customary law evolves
over time ‘to include offenses that the international community universally prohibits’
(Bridgeford, 2003).
Ridenour (2001) remarks on the odd coupling of criminal and tort law in ATCA:
‘While these violations are criminal in nature, international law allow states to fashion
remedies under universal jurisdiction, which the United States has done in a civil
form through ATCA.’ Ridenour’s important article was written in 2001, and in 2002
the International Criminal Court of Rome came into force. Eventually, perhaps, ruling
under ATCA will form the basis for additional criminal prosecutions best suited to
these crimes of universal jurisdiction that, like genocide, piracy, the slave trade and war
crimes, extend beyond the scope of state action.
The main point for our argument is that, although ‘no court had found a corpora-
tion liable for a violation of jus cogens under ATCA’ (Ridenour, 2001) until this case,
a test for conspiracy (under US 1983) is that ‘both public and private actors share a
common, unconstitutional goal’ and hence fit the Principles of Nuremberg as well (see
Chapter 1) (Ramasastry, 2002). This is the incalculable importance of this case: not
only to show a clear example of corporate liability, but also to establish the foundations
for a possible eventual criminal prosecution, based on jus cogens, for the violations of
which corporations were found liable.
Harrington (2002) notes that not only were human rights directly violated in
Myanmar, but that, in addition, ‘Myanmar’s rich pool of diverse natural resource is
currently being exploited for the benefit of the military’. He adds that ‘heightened
standards could translate into a victory for the environment’, at least if US corporations
could be forced ‘to adhere to US standards’, even when operating abroad. Given
that US standards on the environment, while better than those of most military
regimes, whether in Nigeria or Myanmar, are hardly a guarantee of a ‘victory for the
106 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

environment’, it seems to me that the threat of criminality (albeit a remote one, as

the US is not a signatory of the International Criminal Court), might better serve to
indicate to corporations of all countries the full extent of their responsibility.

Extractive industries and ATCA cases: Environmental and health harms

Citizens of Peru and Ecuador brought class action suits alleging that defendant oil
company polluted rain forests and rivers in their countries, causing environmental
damage and personal injury.11

This case is typical of this kind of jurisprudence and it has a long history that led to
an unsuccessful appeal.12 Texaco’s oil operation in Ecuador was initiated in 1964,
when Texaco Petroleum Company (TexPet) began oil explorations and drilling in the
Oriente region of eastern Ecuador.13 A petroleum concession was initiated in 1965
for a ‘consortium’ whereby TexPet was part owner with Gulf Oil Corporation and, in
1974, the Republic of Ecuador (PetroEcuador) joined in with a 25 per cent ownership.
Eventually Gulf Oil relinquished its shares to TexPet and the latter operated a trans-
Ecuadorian oil pipeline and continued to operate the consortium’s drilling activities
until 1992. At that time PetroEcuador took over that aspect of the operation and finally,
in 1999, TexPet left the consortium entirely in PetroEcuador’s hands.14
The plaintiffs brought a suit against Texaco in 1993, as Texaco’s activities had
‘polluted the rain forests and rivers’ in both Ecuador and Peru, and those polluting and
harmful activities were ‘designed, controlled, conceived and directed . . . through its
operation in the United States’.15 The indigenous peoples sought to recover damages,
citing ‘negligence, public and private nuisance, strict liability, medical monitoring,
trespass, civil conspiracy and violations of the Alien Tort Claims Act, 28 USC § 1350’.16
These requests were appropriate redress for contaminated water and environment,
for the restoration of hunting and fishing grounds, for both medical and environmental
monitoring funds, and the establishment of standards for future Texaco operations
as well as ‘an injunction restraining Texaco from entering into activities that risk
environmental or human injuries’,17 all appeared reasonable and appropriate.
These details are vital to a full understanding of the specifics of the case as well as
an appreciation of these proceedings in general. Note the substantive claims based on
indisputable scientific evidence, some of which has been presented briefly in earlier
chapters, and the extensive research that supports this sort of claim (in relation to
extractive industries’ operations) can be found in the work of the WHO and in that of
many epidemiologists, public health and cancer specialists, among others (see Epstein,
1978; Soskolne and Bertollini, 1999; Westra, 2006; WHO, 2002; Licari et al, 2005).
But the US court’s responses are, once again, typical of the courts’ analyses in this
sort of claim: they do not answer any of the claims made with counterclaims, and they
do not even attempt to dispute the factual issues as set out by the plaintiffs. But the logic
of their responses is flawed. Forum non conveniens, for instance, is based on the ‘fact’
that too many witnesses should be brought in to testify, speaking various languages and
dialects. But the injuries and diseases the plaintiffs name are well-known consequences
of chemical and toxic exposure, not some obscure symptom that needs to be personally
verified by someone who ‘saw’ the development of the disease, an almost impossible
 THE UNITED STATES & INDIGENOUS PEOPLES 107

feat for illnesses such as cancers. Not only are certain diseases well documented as
following upon certain exposures, but their treatment is equally well known, and no
member of an indigenous community can be better informed about both illness and
treatment than scientists and practitioners at local universities and hospitals, or the
WHO itself. In fact, the corporation could not say that their operation did not and could
not result in the harmful consequences the claimants outlined. When the extractive
operations are pursued in the usual way, one can and should expect the resulting harm,
both ecological and biological.
The certainty of this expectation renders the resulting injuries more than unex-
pected ‘collateral’ harm; it adds the knowledge of the relation between the cause
(extractive operations) and the harm itself. I have argued that it is this aspect of ‘eco-
crime’ that ensures the presence of a significant mental element, and hence facilitates or
should facilitate the transition from environmental regulatory breaches to ‘eco-crime’
(Westra, 2004a). When this knowledge is ignored in regard to indigenous peoples and
groups, because it is clearly more than an unexpected externality, the ensuing effects
of extractive practices are very close to genocide or attacks against the human person,
and I return to this topic in Chapter 7.
This aspect of ATCA jurisprudence, together with the details of the responses
offered by Texaco, and the court’s assessment of those responses, sheds a different and
much clearer light on the proceedings. These were some of the major issues discussed,
instead of the material/factual complaints themselves:

1 Texaco’s motion to dismiss on grounds of forum non conveniens, accepted by Judge

Rakoff.
2 Texaco’s motion to dismiss because of ‘international comity’.
3 Texaco’s motion to dismiss because the Republic of Ecuador was not joined and
neither was PetroEcuador; Judge Rakoff believed both would be ‘indispensable
partners’ in order for the court to assess the relief sought (and because the Foreign
Sovereign Immunities Act, 28 USC & 1603(b) and 1604, ‘prevented the assertion of
Jurisdiction on either’).
4 Class disputes and common damages would require ‘large amounts of testimony
with interpreters, perhaps often in local dialects, (which) would make effective
adjudication in New York problematic at best’ (Westra, 2004a).
5 These cases have ‘everything to do with Ecuador and nothing to do with the United
States’ (Westra, 2004a).
6 ‘Environmental torts are unlikely to be found to violate the law of nations’ (Westra,
2004a).
7 The United States has no special public interest in hosting an international law
action against a US entity that can be adequately pursued in the place where the
violations occurred’ (Westra, 2004a).

Hence, the reasons for the suit were not even addressed, only the reasons why a US
court should not be involved. Nor are such arguments separate and thus sufficient to
rebut the harms listed by the plaintiffs. First, point six is factually incorrect, and that
error is in fact the main reason for this work, and much of my previous work and that
of the scientists I cite (Westra, 2004a; 2006): ‘environmental torts’ are not simply that.
For the most part, ‘environmental torts’ entail gross breaches of human rights to life,
108 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

to health, to normal function, as well as to ‘family life’. These rights and their violations
are routinely addressed by international courts and the European Court of Human
Rights, hence they do indeed ‘violate the law of nations’.18 Hence, to simply provide a
misdescription of the situation, without providing adequate support for the validity of
that interpretation is insufficient to prove one of the major claims of this US court.
Another counter-example to the approach taken by the US court on point four
might be the international jurisprudence regarding nuclear tests.19 In that case, the
courts decided on the issue without requiring individual witnesses, either from the area
in question or from any other area that might have been affected by nuclear weapons
(say Hiroshima or Nagasaki survivors), to demonstrate the harm that would result from
exposure to radioactivity. The effects of nuclear weapons were judged to be given, that
is universally accepted harms would ensue, hence the court judged there was an erga
omnes obligation to desist from those tests because of the possibility of inflicting harm
on both New Zealand and Australian citizens.
While the harms that result from exposure to the practices of extractive and
mining industries are perhaps less catastrophic and immediate that those produced
by a mushroom cloud, the long-term effects of exposure to carcinogens and other
toxic substance that are part of those practices parallel those resulting from radiation
exposure and today are equally well researched. That said, it is worth repeating, neither
the court nor Texaco itself even attempted to refute the plaintiffs’ claims, and as we
noted, the procedural answers that were used instead are based on mistaken facts and
misunderstandings.
Similarly, neither ‘comity’ (point two) nor the fact that the relief sought should
have been shared by Ecuador (point three), are really applicable, when the gravity
of the harms perpetrated are fully understood. Bilateral obligations are superseded
by erga omnes obligations instead. Nor are the claims acceptable that these cases ‘have
everything to do with Ecuador’ (point five) and have no ‘public interest’ (point seven)
for the US. The ‘collateralism’ inherent in business-as-usual practices, I have argued,
is as harmful to human rights as any other attack on human life, including the better-
known ‘disasters’, such as Bhopal and Seveso. In all these cases, the countries of origin
of the hazardous operation did not succeed in avoiding their responsibility by saying
that the citizens of India or Italy should bear the burden of redressing the harms that
had occurred (Westra, 2006).
In sum, even the appeal to procedural matters in order to avoid altogether the
consideration of real reasons advanced in the plaintiffs’ claims should fail, as the factual
material (hence scientifically provable) elements of the crimes committed by Texaco
are implicitly denied by the court’s assessment of the case. Nevertheless, the forum
non conveniens doctrine is the first step to overcome, that is the first question asked
on ‘whether a court having jurisdiction may decline to exercise it’ (Scott, 2001a). The
question is closely tied to whether local remedies have been exhausted, but it is often
employed as a way of escaping the responsibility to provide a forum against multinational
corporations (MNCs):

One important reason forum non conveniens doctrine is so susceptible to being

employed to remove human-rights related suits against MNCs from Northern courts
is the ease with which judges in home states of MNCs persist in thinking in highly
parochial terms about whether the home state has an interest in being the venue for
global justice against its national MNCs (Baxi, 2001).
 THE UNITED STATES & INDIGENOUS PEOPLES 109

Forced relocation, war crimes and genocide: Bancoult v. McNamara

The plaintiffs in this case are persons indigenous to Chagos their survivors or direct
descendants. . . they bring this action against the United States and various current
and former officials of State and the Department of Defence (‘the individual defend-
ants’), for forced relocation, torture, racial discrimination, cruel, inhuman and
degrading treatment, genocide, intentional infliction of emotional distress, negligence
and trespass.20

Although the Chagos Archipelago comprises 52 islands administered by the British

government, it is leased to the US, and the US is responsible for the islands under the
British Indian Ocean Territory (BIOT) Agreement. In the late 1960s and early 1970s,
the whole Chagos population was moved to Mauritius and the Seychelles, to allow a
US military facility to settle in their space. The original inhabitants were not allowed
to return, and were offered no compensation to help ease their transition into a new
environment and the loss of their homes.
Those who had not left were forced on ‘overcrowded ships for Peros Banhos and
Salonen, from whence they eventually were taken to Mauritius and Seychelles’.21 The
US Congress went ahead with the construction of a military basis on Diego Garcia
island, despite hearings where multiple human rights violations were detailed, from
the lack of relocation assistance, to harsh removal conditions that caused injuries to the
survivors, including miscarriages, and eventual living conditions that include poverty,
unemployment and other deprivations.22
Before the judgement proper could be decided, the ‘individual defendants’ all
claimed that they had been obeying superior orders, based on ‘the statutory immunity
granted to the Federal Officers under the Federal Employee Liability Reform and Tort
Compensation Act’.23 Yet the gravity of the effects of the forced removal bring to mind
the language of the Nuremberg Principles, hence the international law’s denial of such
claims of immunity. In Canada, organization crime is addressed in Bill C-45, now part
of the Canadian Criminal Code as an amendment to section 22.1. The main changes
effected to the Criminal Code are as follows:

S 1.(1) extends the definition of ‘every one’, ‘person’ and ‘owner’ to include ‘an
organization’. In turn, ‘organization’ means,
(2) (a) a public body, body corporate, society, company, firm, partnership, trade
union or municipality, or
(b) an association of persons that
i) is created for a common purpose,
ii) has an operational structure, and
iii) holds itself out to the public as an association of persons. . .

Here, and in the amendments to section 22.1, Bill C-45 ensures that a wide array of
actors within an organization may be viewed as responsible for an offence, ‘whether by
act or omission’. It also ensures that if the prosecution is required ‘to prove fault, other
than negligence’ (section 22.2), then senior officers or representatives may manifest the
requisite ‘mental state’ also by ‘(c) knowing that a representative of the organization is
or is about to be a party to the offence, or does not take all reasonable measures to stop
110 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

them from being a party to the offence’. The bill also adds a section (217.1) to define
‘the legal duty to take reasonable steps to prevent bodily harm’, on the part of anyone
who is in the position to direct and order how work is to be done.
In addition, several sections deal with making or causing to be made false statements
with respect to the financial conditions of the organization (section 362.1(c)), or in
general, committing fraud or causing it to be committed. For the sake of the present
purposes, I will limit my observation and my discussion to the aspects of Bill C-45 that
are directly relevant to this work, thus to eco-crime rather than white collar crime in
general.
The expanded definition of organizations is of cardinal importance in cases
where the authority, other responsible senior party, or those directed by the senior
individuals ‘depart markedly from the standard of care’ (5.22.1) that could reasonably
be expected, and could be found to be provincial or federal officials. There is no
case law yet to determine whether this interpretation might eventually be part of the
positive developments arising out of Bill C-45, and of course ‘depart markedly’ from
the standard of care does not define the ‘standard of care’ itself or what, precisely, a
‘marked’ departure from a non-specified form of behaviour might be. In fact it may
be the case that the standard of ‘due diligence’ (also largely undefined), which has
been the expected test, is not different from the standard included or implied by the
changed wording of Bill C-45.
Another important point worthy of attention is that after section 718.2, the act now
provides section 718.21 on ‘organizations’ and the ‘factors regarding the offence’ that
must be taken into consideration in sentencing. Some of the most interesting of these
factors, in relation to our main concern, are:

(a) any advantage realized by the organization as a result of the offence;

(b) the degree of planning involved in carrying out the offence, and the duration and
complexity of the offence;. . .
(g) whether the organization was or any of its representatives were convicted of a
similar offence or sanctioned by a regulatory body for similar conduct;. . .
(j) any measures that the organization has taken to reduce the likelihood of it
committing a subsequent offence.

Briefly, the first factor cited shows that economic advantage renders the offence graver;
the second parallels the premeditation aspect as it renders a homicide committed by
an individual, a murder instead; planning may also include ‘conspiring’, something
that has become a crime in itself according to the Nuremberg Charter. Previous crimes
are now admissible at sentencing; (g) recognizes that an organization does not require
the same constitutional (charter) protections as does the individual offender, at least
implicitly. The commitment not to repeat the crime (j) also allows a degree of official
intervention that is not possible with individual persons.
Even if the individual defendants are eliminated from the action (justly or
unjustly), that leaves the US as the sole defendant. However, all those who knowingly
perpetrated the actions involving the Chagos indigenous population violated the tenets
of international law:
Pursuant to the Alien Tort Claims Act, 28 USC & 1350 (‘ATCA’), the district courts
shall have original jurisdiction of any civil action by an alien for a tort only committed
in violation of the law of nations or Treaty of the United States.24
 THE UNITED STATES & INDIGENOUS PEOPLES 111

Other issues used to rebut the plaintiffs’ claims were the fact that ‘they had failed
to exhaust their administrative remedies’, despite the fact that they were not allowed to
return to their home base, now a US military basis (in Chagos), nor to the other islands,
where the UK itself was not likely to offer an impartial forum after entering into an
agreement with the US that led to the very actions in question.
Another issue was ‘the judicial expertise’ of the court, as it was required to pass
judgement on US policy:

Neither our federal law nor customary international law provide standards by which
the court can measure and balance the foreign policy considerations at play in this
case such as the containment of the Soviet Union in the Indian Ocean thirty years ago,
and today the support of military operation in the Middle East. The court concludes
that it is ill-equipped to review the conduct of the military operation challenged in this
case, because they implicate foreign policy and national security concerns.25

Essentially, if the US government’s political branches made a decision 30 years

earlier, the court was not prepared to second guess that decision today.26 Of course, even
if the court was not prepared to question either the decision of the US government at
the time those decisions were made, or the reasons for those decisions, the way those
decisions were carried out appears to remain untouched by this argument. Even if a
country’s political or other decision cannot be judged under ATCA, ‘Article 2(3) of the
Torture Convention explicitly states that “An order from a superior official or public
authority may not be invoked as a justification for torture”’ (Steiner and Alston, 2000).
Torture is forbidden by jus cogens norms, and so is genocide, so that appealing to this
article appears to be appropriate, and I address this question below.
This point was also made clearly in the Filartiga v. Pena Irala case.27 In that case, the
US Supreme Court recognized that the law of nations:

. . . may be ascertained by consulting the work of jurists writing professedly on public

law; or by the general usage and practice of nations, or by the judicial decisions
recognizing and enforcing the law.28

Nevertheless, it must be acknowledged:

Unlike the criminal remedy, there is no treaty that clearly obliges or even authorises
courts to take jurisdiction over civil actions respecting torture committed abroad with
the exception of the US, there is no domestic legislation in any other country that
expressly grants courts jurisdiction with respect to these matters. (Terry, 2001)

Because ATCA permits individual citizens to sue for torture and other such injuries,
without the far more complicated requirements of initiating a criminal action for the
International Court of Justice or International Criminal Court, this avenue appears to
remain the preferred one of claimants in various venues:

While it is premised on the principle that victims of torture much be compensated, its
true role in many cases is admittedly symbolic: the third country tort remedy provides
recognition for, and emotional vindication of, the victims of torture and places moral
and political pressure on rights abusing governments. (Terry, 2001)
112 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Beanal v. Freeport-McMoran Inc. and Freeport-McMoran Copper and

Gold Inc.: Torture and cultural genocide

Beanal’s first amended complaint alleges that Freeport has committed environmental
torts, human rights abuses, and cultural genocide. (para.4)29

This case sues corporate bodies, but from the results obtained since 1997 and even earlier,
one wonders about the effect such judgements have on the actions of the corporate
bodies involved. It seems apparent that the ‘symbolic’ aspect of the court’s decisions is
somewhat lost, and the reduction of jus cogens acts to torts implying liability that may
be compensated (at worst) hence resulting in costs that may well be internalized, are
not having an appreciable effect on corporate behaviour. Translating crimes into acts
that are open to monetary compensation (and no further effect on chief executive
officers and firm’s other officers) reduces what should be erga omnes obligations not to
do harm to acts that courts find apparently less serious than insider trading or other
stock/accounting-related acts (as is apparent from the recent Enron judgement).
Tom Beanal is a leader of the Amungme Tribal Council of Lambarga Adat Suku
Amungme (LEMASA). As such, he filed a complaint against Freeport-McMoran Inc.
and Freeport-McMoran Copper and Gold Inc. (‘Freeport’). He describes the human
rights abuses and harmful environmental practices of Freeport as they affected himself
as well as others in his group. The practices included: ‘torture, detention, surveillance’,
the ‘deliberate, contrived and planned demise’ of the Amungme culture, due to various
human rights and environmental violations including ‘contamination of the natural
waterways, as well as surface and ground water sources, deforestation, destruction and
alteration of physical surroundings’.30
The details describe repeated acts of torture, including kicking with military boots,
beating with fists and rifle butts, starvation, shackling and keeping in uncomfortable
positions. Other examples describe victims ‘forced to stand in Freeport containers
which reeked of human faeces’, and ‘indigenous peoples . . . detained with their eyes
taped shut . . . subject to repeated beatings by Freeport security personnel’.31 These acts
are not simply proscribed by specific treaties, they are committed in violation of the
‘law of nations’. In fact the Alien Tort Statute § 1350 states that ‘the alleged violation
must be definable, obligatory (rather than hortatory) and universally condemned’.32
Hence the issue is whether the plaintiffs can assert that Freeport has failed to meet its
erga omnes obligation. In contrast, Freeport’s response is that ‘state action is required to
violate international law’; as state action is not involved, Freeport adds, it is not possible
to claim that the law of nations has been violated.33
Nevertheless, genocide, one of the categories alleged by the plaintiff, violates
international law, whether undertaken by a state or non-state actor (Restatement §
404 also asserts that ‘universal jurisdiction exists over specified offenses, as a matter of
customary law’). This is a central claim in most cases involving indigenous peoples and
determines the extent to which the concept of genocide is applicable.
Because of the interdependence between indigenous or tribal peoples including
the Amungme tribes and their lands, forced relocation, for instance, or any corporate
operation that displaces an indigenous group or ‘destroys natural habitats and causes
dislocation of the populations’, may be said to result in ‘the planned demise of a
culture’,34 and can be described as ‘eco-terrorism’.
 THE UNITED STATES & INDIGENOUS PEOPLES 113

I return to consider the full import of genocide in Chapter 7. But it is important

to note the explicit appeal to one of the two presently recognized and accepted
approaches to the protection of indigenous communities, that is, the protection of
‘cultural integrity’. The main issue is the relation between the protection of indigenous
groups like the Amungme and their lands. Open pit mining involves the use of harsh
chemicals to process the metals once these have been extracted, and the damage to
environmental and human health is truly incalculable and often irreversible.
An example from the Australian courts reinforces this point. In the Ok Tedi case35
BHP eventually settled the considerable claim (Aus$400 million) and the motion to
dismiss because the doctrine of forum non conveniens was not followed by BHP.36 Such
cases demonstrate some progress toward holding corporate bodies accountable for
human rights abuses grounded in environmental harms. In the case we are considering
in this section, a similar trend emerges as well:

The fact that Freeport is itself not a ‘state’ does not preclude its liability for violations
under the law of nations, since state actors, not merely the state itself, can be held liable
for such violations.37

Although Beanal could not ultimately prove the ‘symbiotic relationship’ between
Freeport’s employees and its security guards and the Indonesia military,38 not only are
governments expected to punish crimes within their borders, not aid and abet them,
but there is a long history of extractive industries’ practices in securing military or
paramilitary support from the country where their activities take place. This happens in
many areas including, as noted, South America and Nigeria, among others.
In this case, Beanal alleged that, ‘Freeport maintains, i.e. feeds, transports, pays
and equips, Indonesia military personnel on the premises’.39 Finally, despite the
copious and entailed claims of environmental damage from mismanagement of the
tailings drainage, ‘resulting in sulphide oxidation and leaching’, and a long list of other
environmental torts, the court could not discern an ‘international tort’ sufficient to
permit redress under ATCA.40
The court only found three international environmental law principles: the polluter
pays principle; the precautionary principle; and the proximity principle. And it added
that ‘none of the three rises to the level of an international tort’.41 This assessment totally
ignores the Trail Smelter Arbitration, which is perhaps the best known and foundational
case of international environmental law, and the erga omnes obligations it supports.
The conclusion that Beanal has ‘failed to allege an international environmental
tort’ while it affirms that ‘corporate policies . . . however destructive, do not constitute
torts in violation of the law of nations’42 is a clear example of the far-reaching results of
ignoring the science related to the case, such as epidemiology, public health, medicine
and toxicology, as well as ecology and biology. The proposed model of ‘biological/
ecological’ protection was designed to correct this lacuna, which should have been
addressed by the Judges Portal initiated by Justice Arthur Chalkalson of South Africa,
after the Agenda 21+10 meeting, intended to prepare judges to understand the
implications of the cases they are called to adjudicate (Westra, 2004a).
114 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

The Presbyterian Church of Sudan, Rev. John Gaduel, Nuer Community,

Development Services and Others v. Talisman Energy Inc. (1): Extra-judicial
killings, war crimes and genocide
Talisman, a large Canadian energy company, collaborated with Sudan in ethnically
cleansing civilian populations surrounding oil concessions located in Southern Sudan
in order to facilitate oil exploration and extraction activities.43

This is a case where the gross human rights violations, from forced displacement to
killings, can be described as genocide because these acts were all directed at the specific
ethnic and religious groups in the south of Sudan (footnote no. 2 of the case addresses
the meaning of ‘ethnic cleansing’ as a literal translation of a Serbo-Croatian term: it is
a euphemism for genocide).
Historically Sudan was a ‘collection of small independent kingdoms and princi-
palities’.44 After a period of Egyptian, then British rule, Sudan became independent
in 1956. Nevertheless, the Arab-controlled northern part reinstituted Sharia law
and even transferred some of the judges to the Christian south, where Christianity
and indigenous religions were practised. In fact, that government, according to the
plaintiffs, pursued:

. . . a war of genocide against the population in the southern part of the country
(Amended Complaint at p. 14). This genocide which Plaintiffs also described as a
jihad or holy war, is purportedly aimed at the forced Islamization of the south, and
has resulted in approximately two million deaths and the displacement of four million
people.45

Against the background of this ongoing conflict and the accompanying human rights
violations, first Chevron, then Arakis Energy Corporation (later ‘Talisman’) (a Canadian
company), were accused of collaborating fully and deliberately with the government of
Sudan in its genocidal activities:

In exchange for oil concessions, the government promised to clear the area around the oil
fields of the local population. The oil companies agreed to invest in the infrastructure,
such as transportation, roads and airfields and communication facilities, to support
exploration, and the government would use the infrastructure to support its genocidal
military campaign of ethnic cleansing against the local population.46

The targeted inhabitants were the Dinka and the Nuer people, Christians or practitioners
of traditional indigenous religions. The plaintiffs detail the various forms taken by this
‘ethnic cleansing’ or, as it was also put, ‘to provide a cordon sanitaire’ to facilitate the
exploration and extraction of oil: murder of civilians (including women and children),
destruction of villages and the enslavement of surviving civilians.47 These details were
provided by a number of affected parties, also by the Presbyterian Church of Sudan and
some of its pastors.
Aside from the usual requests to dismiss the plaintiffs’ motion, based on forum non
conveniens, as was repeatedly argued in most of the ATCA cases we have considered,
Talisman also alleged that the court would have no jurisdiction, as well as other
 THE UNITED STATES & INDIGENOUS PEOPLES 115

grounds such as the ‘act of state’ doctrine. But the Alien Tort Claim Act was indeed
expected to deal with all torts ‘in violation of the law of nations’, which is understood
to be synonymous with international law. In fact, Filartiga served to catapult ‘a largely
overlooked statute in the limelight as a means of vindicating rights under international
law’.48 ATCA became the best-known vehicle to deal with jus cogens violations of erga
omnes obligations.
Talisman insisted that: first, corporations are not legally capable of violations of
international law, despite the wealth of precedents; and second, that the reach of
international law was limited to the states and those acting under state law, despite the
presence of the Genocide Convention, which states that ‘Persons committing genocide
or any of the other acts enumerated in Article 3 shall be punished whether they are
constitutionally responsible rulers, public officials or private individuals’ (Article 4).
In addition, common articles of the Genocide Convention do not support Talisman’s
contention. There are several references to Wiwa,49 because the two defendants in that
case were private corporations. In light of the fact, Wiwa clearly extended the decision in
Kadic to apply the ATCA to the acts of corporations that constitute jus cogens violations.50
Corporations were sued under ATCA in Jota, Wiwa, Tachiona v. Omugabe,51 and United
States v. FMC Corporation,52 extending criminal liability to a corporation for violating the
Migratory Bird Treaty Act. As we saw in Doe v. Unocal Corp,53 the US Ninth Circuit court
recognized explicitly that a corporation could be sued under ATCA, and ‘The court,
citing Kadic, held that because the complaint alleged jus cogens violations (including
rape, torture and summary execution), no state action was necessary and Unocal could
be held liable’.
The plaintiffs’ complaint in the case of Southern Sudan also involved similar jus
cogens violations, so Talisman’s claims to the effect that corporations could not be
found to be acting against the law of nations cannot stand, according to both ATCA’s
principles and according to the precedents in law. Talisman also adduced (a) forum non
conveniens, and (b) the ‘political question’, as obstacles to the ATCA trial. On (a) the
court responded that neither Sudan nor Canada were better as alternative forums. The
affidavit of Dr Abdel Rahman Ibrahim al Khalifa explains in detail why, according to
the Sudanese judicial system, a fair trial in that country would be impossible, especially
because of the reduced rights of various groups: ‘these reduced rights include a total
lack of legal personality for plaintiffs who practiced traditional African religions, and
diminished testimonial competence for Christians’.54
Canada fares no better as a trial choice, according to the testimony of experts in
both Alberta and Ontario. In Alberta, the court would ‘prima facie apply the lex loci
delicti, or the law of the place where the activity occurred’, and in this case, that would
be Sharia law, thus defeating the purpose of seeking a different forum for the violations
of human rights of the indigenous Christian groups.55
If the case were to be tried in Ontario, according to the affidavit of Christopher D.
Bredt,56 as for Mr Foran’s affidavit, jus cogens violations of the law of nations are not even
mentioned, and the focus remains on Canadian domestic rather than international law.
The court remarked that ‘Genocide may quantitatively be the same as a large number
of murders, but it is qualitatively different, and this difference is recognized by the fact
that the act enjoys special status under international law’.57
Finally, the court noted that ‘Canada does not have a well placed class action proce-
dure’.58 Because of these reasons, the plaintiffs’ choice of forum should be respected.
116 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Talisman’s request to dismiss because the action raised non-justiciable political questions
was also found to be without merit. The questions raised were not political and internal
to Sudan, rather the issue was whether Talisman violated international law. Thus, the
court denied Talisman’s motion to dismiss the plaintiff’s Amended Complaint on 19
March 2003.

THE QUESTION OF CORPORATE RESPONSIBILITY

Aside from the repeated appeals to forum non conveniens (sometimes successfully argued
by corporations), appeals to excluded parties (often the nations where the activities
took place), and even to ‘political questions’, two major issues stand out: first, whether
the alleged ‘torts’ rise to the level of acts committed against the ‘law of nations’, and
whether they are indeed breaches of jus cogens norms; and second, whether corporations
can be charged under these categories at all.
The first question is a basic one requiring a detailed multidisciplinary discussion
(see Chapter 7). The second question, while clearly a complex one, is basic to the
whole issue of indigenous peoples’ rights, and should be addressed here. Although
corporations are charged with multiple attacks on indigenous groups that are better
considered under the categories of attacks against the human person and genocide,
even of war crimes, the question of their responsibility for each and every attack,
that is, on the criminality of their activities, hence the question of mens rea, should be
considered first.

Corporate accountability and the problem of intent

Political theory, moral principles and the national legislative framework ensure that
ministries and other government bodies have a duty of care, a responsibility for the
citizens in the regions they govern. This, however, is not true of corporate bodies, espe-
cially the powerful MNCs who operate at many levels and in many countries, under
diverse jurisdictions. As we noted, it is extremely difficult even to characterize their
hazardous activities as crimes although, when these crimes are perpetrated, multi-
nationals operating in various countries cannot claim state immunity, unless they are
true representatives of their countries in their foreign operations.59
The question of corporate responsibility in regard to indigenous peoples will be
re-examined in Chapter 9. But it is undeniable that the corporations’ legal personhood
gives them the same rights as individual, natural persons, although the extent of the
protection to which they are entitled has been increasingly debated. In R. v. Wholesale
Travel Groups Ltd. ((1991) 3 SCR 154), Cory J argues that the charter was primarily
intended to protect ‘vulnerable members’ of society, hence, no corporate institution,
especially one provided already (legally) with ‘limited liability,’ should be able to appeal
to the charter for protection. In essence, the charter’s primary focus is the protection
of individual rights, an intensely and particularly ‘liberal’ focus, according to Chick
(1993) and the sources he cites:
 THE UNITED STATES & INDIGENOUS PEOPLES 117

Those who take the view that individual rights must always come first, and . . . must
take precedence over collective goals are often speaking out of a view of a liberal society
which has become more and more widespread in the Anglo American world. (Taylor,
1992)

I have argued that liberal democracy, as presently implemented in Western affluent

countries, has failed to protect even the citizens in the nations where it prevails, let
alone those who, though geographically or temporally removed from decision-making
institutions, are bearing the gravest risks (Rees and Wackernagel, 1996; Rees, 2000;
Westra, 1998). This is true because collective and community rights are not respected,
nor are the natural systems and processes on which we depend for life and health. The
protection of the common good is neither an institutional not a corporate priority
in the environmental context. The same is true in the area of employee’s rights for
workers employed in risky businesses, and it is constructive to compare the two (Draper,
1991).
A well-known Canadian mining disaster can be analysed in a similar way as the
legislative framework for the protection of the workers is as lacking as that intended
for the protection of citizens from environmental harms. In their discussion of the
Westray Mine disaster, Harry Glasbeek and Eric Tucker (1993) point out the repeated,
unpunished disasters brought about by unconstrained corporate activities. Among
several points worthy of note, some could be repeated for the eco-violence in Walkerton,
where E. coli spread through the community because of the contaminated water
supply, causing around 3000 cases of serious illness and at least 7 deaths (Westra, 2004a,
Chapter 4). For instance:

1 Invariably, the inquiries reveal that the deaths and injuries are attributable, at
least in part, to violations of existing mine regulations;
2 This finding inexorably leads to statements of firm resolve that there will be no
recurrences, no more violations, no more disasters. But, as the records show, these
oft-asserted goals are never realized. (Glasbeek and Tucker, 1993)

The assumptions underlying these glaring breaches of human rights are that somehow
the employing corporations, the law-dispensing institutions, and the affected workers
are all working towards similar or at least compatible goals (Glasbeek and Tucker,
1993). This is both untrue and indefensible on the basis of evidence. There is no deep
and substantive consensus between corporate owners and their employees, although
the latter, especially in male-dominated industries, tend to frown on manifesting any
concern about workplace safety and risk as not ‘manly’.
A risky business (Draper, 1991), such as a corporation disposing of capacitors laden
with PCBs (Westra, 1994a) or the nuclear industry attempting to site a waste disposal
facility against the citizen’s will in Nevada (Schrader-Frechette, 1993), are viewed by
the men in the community as a possible source of employment and the risk involved
is considered an acceptable part of doing their job, even viewed as a ‘heroic exercise
of manly confrontation’, itself understood as a test of toughness, rather than an un-
warranted and unconsented risk to be avoided (Glasbeek and Tucker, 1993). In all these
cases, workplace/health concerns and eco-violence/health concerns, are treated in a
118 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

similar manner, both in the public mind, and by the boardrooms and the institutions
that could control such risks.
We should question our acquiescence in the context of our liberal democratic
political system as we reconsider the corporate/institutional ‘facilitator’ who enables
and supports the risks and condones the harms. One of the major causes of our
unthinking support of ‘business as usual’ is the tranquilizing effect of marketing and
advertising campaigns, within the context of what I have termed ‘the failure of liberal
democracy’ (Westra, 1998). Homer Dixon (1994) shows democracy’s failings:

If you only have procedural democracy in a society that’s exhibiting environmental

stress and already has cleavages, say ethnic cleavages, then procedural democracy
will tend to aggravate these problems and produce societal discord, rather than social
concord.

The same point can be made about economic cleavages, rampant in a capitalist system
whose openly avowed goal is increased production, increased profits, and not global
justice, conservation and respect for the natural systems on which their very activities
depend.

FROM MENS REA IN DOMESTIC CRIMES

TO CORPORATE ACCOUNTABILITY IN
INTERNATIONAL LAW

Human Rights Watch establishes a special unit on corporations and human rights;
in 1999 it issued 2 lengthy reports, one accusing the Texas based Enron corporation
of ‘corporate complicity’ in human rights violations ‘by the Indian government’, and
another one, accusing Shell, Mobil and other international oil companies operating
in Nigeria of cooperating with the government in supporting political opposition.
(Ratner, 2001)

Steven Ratner (2001) argues that international law should ‘provide for human rights
obligations directly on corporations’, and that corporate duties should also extend to
the elimination of their complicity with states that may be viewed ‘as the prime source
of human rights abuses’.
The background to the present situation originated when European states left
their colonies and the process of decolonization started. It was to be based on the
sovereignty and equality of all states, and any relation with the former colonial power
had to be based on a clear choice by the people of the territory (Ratner, 2001).60 The
most important document for that period was the Charter of Economic Rights and Duties of
States, emphasizing the obligations of the North to the South.61
But human rights law is not limited to state interaction, and the presence of both
the ICCPR and the ICESCR, as well as treaties on women’s and children’s rights, and
covenants against racial discrimination and torture, all contributed to diminish the
 THE UNITED STATES & INDIGENOUS PEOPLES 119

inviolability of state sovereignty, as the legality of intervention replaced the former duty
of non-interference in the internal affairs of individual states (Ratner, 2001).
Although states had tried to limit the power of MNCs in the 1980s and early 1990s,
the increasing spread of globalization in the 1990s gave rise to a counter-reaction with a
strong emphasis on corporate rights (Ratner, 2001).62 The reality is that multinationals
are becoming ‘more embedded in the economy of the host states than ever before’
(Ratner, 2001) but, while governments have obligations to their citizens under human
rights law, the question of the corporations’ duties under international law has not
been fully clarified (Ratner, 2001), especially in developing countries, where indigenous
peoples are often based. These impoverished states are far more interested in foreign
investment and trade than in protecting their citizens and ensuring compliance with
domestic or international law. The corporate position was that ‘The citizenry’s human
rights were the government’s responsibility, not theirs. In short, the race to the bottom
was on’ (Ratner, 2001).
When we consider the interface between powerful corporate actors and indigenous
communities under the category of international law, the problem of mens rea recedes
in importance. The states have been retreating from their duties to foster their own
economic interest so that the corporations have taken on a direct role vis-à-vis the
communities, not as one or another individual with clear human rights. Yet, ultimately,
it is indeed individuals who are harmed both singly as part of groups. Because of the
laxity of states in enforcing existing laws, whole territories are in fact given controls over
vast tracts of indigenous traditional lands (Howard, 1994; Ratner, 2001).

Human rights violations: Torts and crimes

The inadequacy of state responsibility stems fundamentally from trends in modern

international affairs, confirming that corporations may have as much or more power
over individuals as governments. (Ratner, 2001)

It is commonplace to affirm that many corporations have budgets and economic powers
in excess of those of many developing countries (Strange, 1996). Even without turning
to developing nations and indigenous groups, one sees the subtle and widespread
power MNCs wield, even in a developed country like Canada. Monsanto corporation,
for example, offered funds to the University of Toronto for a ‘research institute’, and
the result was that they were accused of effectively muzzling dissenting voices that might
have arisen against their policies and practices, as exemplified in the Percy Schmeiser case
in Saskatchewan.63 (Monsanto (Canada) Inc. v. Schmeiser [2004] 1 S.C.R 902).
Of course when we turn to areas like the Colombian rainforest, Indonesia or Sudan,
those governments have relinquished any protective role they might have originally had
over their citizens’ rights, hence they have little incentive to restrain the corporations
who are willing to provide economic incentives in exchange for laissez-faire attitudes
on the part of the governments in question. Often, rather than curtailing corporate
practices, governments are complicit in their activities. Ratner (2001) proposes three
possible approaches to ameliorate the situation:
120 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

1 to continue to focus exclusively on state encouraging it eventually to control such

enterprises;
2 to enforce obligations against individuals;
3 or to identify and prescribe new obligations upon those private entities in inter-
national law and develop a regime of responsibility for violations they might
commit.

It seems that the first option is somewhat unrealistic, especially given the retreat of
the state to which I have alluded and the clear disinterest on the part of most states to
hamper or restrain corporate activities. But both the second and third options seem
to offer a better avenue to the protection of human rights in general, and of those of
indigenous peoples specifically. Aside from genocide, attacks against humanity, and war
crimes, the UN Commission of Experts for the former Yugoslavia concluded that there
are several acts that could fall under the Convention on Genocide (especially Article
2):

murder, torture, arbitrary arrest and detention, extra-judicial executions, rape and
sexual assaults, confinement of civilian populations in ghetto areas, forcible removal,
displacement and deportation of civilian populations, deliberate military attacks or
threat of attacks on civilians and civilian areas and wanton destruction of property
(Final Report of the Commission of Experts Established Pursuant to Security Council
Resolution 78 (1991), May 27, 1994, UN Doc.S/1994/674, at 33; note that the
commission defined ‘ethnic cleansing’ as ‘the rendering of an area ethnically homo-
genous by using force or intimidation to remove persons of given groups from the
area’). (Ratner and Abrams, 2001)

Many of the corporate activities described in the cases discussed thus far include several
of the acts that Ratner and Abrams (2001) believe could and perhaps should be covered
by the convention. In addition, Article 2 specifies ‘ethnic, racial and religious groups’
as those against whom those acts must be committed in order to qualify as acts covered
by the convention, although the terms ‘ethnic’ and ‘racial’ are sometimes viewed as
interchangeable, many disagree on the possibility of a distinction between the two.64
At any rate, despite these debates, protected groups are explicitly covered by the
convention, and those who attack them cannot claim, as many try unsuccessfully to
do, such defences as ‘superior orders’, ‘duress’, lacking a moral choice and ‘necessity’,
which are no longer permissible after Nuremberg (Ratner and Abrams, 2001). The
question of corporate accountability has not been fully answered in these brief remarks.
But one may also consider historical precedent. At one time the slave trade was a
‘global’ business activity tolerated by many states, while it was strongly condemned
by others. Those who worked to eliminate the practice, ‘convinced governments to
conclude a series of treaties that allowed states to seize vessels and required them to
punish slave traders’ (Ratner, 2001). The classic case is Le Louis, and it is instructive to
read a representative passage, as Sir William Scott attempts to explain why resistance to
the slave trade should be normatively required, thus anticipating the existence of jus
cogens norms in international law:
 THE UNITED STATES & INDIGENOUS PEOPLES 121

Piracy being excluded, the Court has to look for some new and peculiar ground: but in
the first place a new and very extensive ground is offered to it by the suggestion, which
has been strongly pressed, that this trade, if not the crime of piracy, is nevertheless
crime, and that every nation and indeed every individual has not only a right, but a
duty to prevent in every place the commission of crime. It is a sphere of duty sufficiently
large that is thus opened out to communities and their members. But to establish the
consequence required it is first necessary to establish that the right to interpose by force
to prevent the commission of crime commences, not upon the commencement of the
overt act, not upon the evident approach towards it, but on the bare surmise grounded
on the mere possibility.65

Sir William Scott is addressing the issue of slave trading, in terms that tend to place
the action in the realm of emergent, if not present, jus cogens norms (Ragazzi, 1997).
He ends his judgement by admitting that, as it is not as yet the established practice of
all states, and even less ‘international law’ to view the slave trade as a crime, it cannot
be so considered, despite the fact that most would agree with his moral position against
slavery and the slave trade (see Chapter 3).
But the point made in this passage is that we need to appreciate the activity to be
proscribed first and foremost in its true nature (in our case, viewing corporate activity
as a crime), before we can even start to place it in the appropriate legal context that
attacks human rights.
The second important point emerging from Le Louis is the need for a clear
international norm, one that has accepted the corresponding erga omnes implications.
Le Louis shows without a doubt the problems that arise when a universal moral norm
conflicts with a treaty or state practice, or is not at a certain time fully operative in either
context. The strong beliefs of most people, their revulsion in the face of an activity
(such as the slave trade) that ought to be proscribed everywhere, is insufficient, unless a
treaty exists with signatories from all countries globally, the ‘delict’ is raised to the status
of crime, or the activity is viewed as impermissible in customary law.
But, even aside from moral principles that are explicitly constitutive of international
law (in contrast with municipal law), state responsibility in the international context
demands more than fines. First, what is the meaning of ‘state responsibility’?

‘State responsibility’ simply put is the name public international law gives to the
normative state of affairs which occurs following a breach by a state of one of its inter-
national legal obligations (whether that obligation derives from treaty law, customary
law or other recognized sources such as ‘general principles’ of law). (Scott, 2001a)

This description sounds essentially similar to a breach of domestic regulatory obligations

in some ways. For both domestic and international law, for the most part, damage must
be demonstrated before it can be decided that a violation has occurred. But further
obligations, beyond compensation, are present when we move from domestic to
international law:

The breach of a (primary) rule of international law triggers certain secondary obliga-
tions. These are commonly considered to include duties to: 1) discontinue the act; 2)
apply national legal remedies; 3) re-establish the situation existing before the act in
122 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

question or, to the extent that this is possible, pay corresponding compensation; 4)
provide guarantees against repetition. (Brunnée, 1993)

In essence then, there are three further obligations beyond no. 2, ‘apply national legal
remedies’, that accrue to the state, when this is viewed from an international, trans-
boundary perspective. One of the questions raised by this approach is whether the well-
established principle nullum crimen sine lege, while still foundational, acquires perhaps
a special meaning when applied to international criminal law (Ratner and Abrams,
2001), as scholarly writings seeking to advance justice are often used to promote the
achievement of this goal.
A recent example emphasizes this point. In June 2006, France’s railways (SNCF)
were found liable ‘for the wrongful dispatch, by cattle car’ of Jewish people to ‘Drancy’,
a holding camp near Paris, prior to their shipment to Auschwitz. One family was
successful in the case, winning the equivalent of Can$85,000 in the judgement. This is
the first time that a French court had charged a French government agency, viewing it
as complicit in the horror of Nazi crimes (although the case’s judgement was reversed
in 2007, based on the doctrine of ‘superior orders’) (Marrus, 2006). In this case there
is a crime not established in the law of the time, but one that simple justice may force
us to accept as such.

NOTES

1 Cherokee Nations v. Georgia, 30 US 5 Pet., 17 (1831).

2 Indian Child Welfare Act of 1978, 25 USC § 1901 (1978).
3 Indian Tribal Government Tax Status Act, 26 USC § 7871 (1982).
4 The Indian Self-Determination and Education Act of 1975, 25 USC § 450 (1975).
5 The Indian Tribal Justice Act of 1990, 25 USC § 2901 (1990).
6 Clinton, William J., Remarks to American Native and Alaska Native Tribal Leaders, 29 April
1994, 30 Weekly compilation of Presidential documents, No. 18, 941, 942 (9 May 1994).
7 See Chief Justice Marshall ‘opinions’ in Worcester v. Georgia 31 US (6 Peet.) 515 (1832);
Employment Div., Dept. of Human Resources v. Smith, 494 US 872 (1990).
8 Doe v. Unocal Corp., 2002 WL 3.D 63976 (9th Cir. 2003).
9 ATCA, 28 USC 1350 (2002)), the Ninth Circuit reversed the original verdict; Doe/Roe v.
Unocal Corp., 110 F. Supp. 2d 1294, 1306 (CD Cal. 2000).
10 Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980).
11 Maria Aguinda and others including the Federation of the Yagua People of the Lower Amazon and
Lower Napo v. Texaco, Inc., 303 F 3d 470; 2002 US App. LEXIScl6540; 157 Oil and Gas Rep.
333, 16 August 2002.
12 Aguinda v. Texaco, Inc., 1945 F. Supp. 625 (SDNY 1996); Aquinda v. Texaco, Inc., 142 F. Supp.
2d 534 (SDNY 2001); Jota v. Texaco, Inc., 157 F 3d 153 (2d Cir. 1998).
13 ibid.
14 ibid.
15 ibid.
16 ibid.
17 ibid.
18 Guerra v. Italy (116/1996/735/932), 19 Feb. 1998; Lopez-Ostra v. Spain (1995) 20 HER 277m
(1994) ECHR 16798/90.
 THE UNITED STATES & INDIGENOUS PEOPLES 123

19 Nuclear Tests case, Australia v. France; New Zealand v. France (1974) ICJ Rep. 253.
20 Bancoult v. McNamara, 370 Supp. 2dl. US Dist., LEXIS 27882 (21 December 2004 decided).
21 ibid.
22 ibid.
23 Westfall, Federal Employees Liability Reform and Tort Compensation Act of 1988, Fub.L.
No. 100-694, 102 Stat. 4563 (1988) (codified at 28 USC && 2671-2680).
24 ibid.
25 ibid.
26 ibid.
27 Filartiga v. Pena-Irala, US Court of Appeals, 2d ct, 1980 630 F 2d 876.
28 United States v. Smith, 18 US, 153, 160–161, 5 L. Ed. 57 (1920).
29 Beanal v. Freeport-McMoran, Inc. and Freeport-McMoran Copper and Gold, Inc., 969 F. Supp 362;
1997 US Dist LEXIS 4767 (April 1997 decided).
30 ibid.
31 ibid.
32 Citing Filartiga, 630 F.2d at 881.
33 ibid.
34 ibid.
35 Dagi; Shackles, Ambeu; Maur and others v. the Broken Hill Proprietary Company Ltd. and Ok Tedi
Mining Limited (No. 2) [1997] Victoria Reports [VR] 428, where plaintiffs in the area of
Papua New Guinea complained about the toxic pollution into a river and flood plain from
an Australian copper mine operation (BHP). In this case, ‘the judge held he did have
jurisdiction over certain cases of action related to negligence’ (Steiner and Alston, 2000; see
also Scott, 2001a).
36 ibid.; see also Sequinha v. Texaco, 847 F. Supp. 61 (SD Tex. 1994); Sequinha v. Texaco, Inc., 945
F. Supp. 625 (SDNY 1996); Ashanga v. Texaco, Inc., SDNY Dist. No. 94 Civ. 9266 (13 August
1997); Jota v. Texaco, Inc., 157 F. 3d 153 (2d Cir. 1998).
37 ibid., Restatement § 207.
38 ibid.
39 ibid.
40 ibid.
41 ibid.
42 ibid.
43 The Presbyterian Church of Sudan, Rev. John Gaduel, Nuer Community, Development Services and
others v. Talisman Energy, Inc., 244 F. Supp. 2d 289:2003 US Dist. LEXIS 4085:155 Oil and Gas
Rep. 409, 19 March 2003, decided.
44 ibid.
45 ibid.
46 ibid.
47 ibid.
48 ibid.
49 Wiwa v. Royal Dutch Petroleum Co., 226 F. 3d 88 (2d Cir. 2000).
50 ibid.
51 Tachiona v. Omugabe, 234 S. Supp 2d. 401, No. 00 Civ. 6666 (VM), 2002 WL 317 9018 (SDNY
11 December 2002.
52 United States v. FMC Corporation, 572 F. 2d 902 (2 Cir. 1978).
53 Doe v. Unocal Corp., 2002 US App. LEXIS 19263, Nos. 00-56603, 00-57197, 00-56628, 00-57195,
2002 WL 3103976 (9th Cir. 18 September 2002).
54 ibid.
55 Affidavit of F. Fran, paras. 15–16.
56 ibid.
124 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

57 ibid.
58 Derensis v. Cooper and Lybrand Chartered Accountants, 930 F. Supp. 1003, 1007 (DNJ 1996).
59 ILC Draft Articles on Jurisdictional Immunities of States as adopted at 43rd Session, 1991,
and recommended to UN General Assembly, Article 10, 30 It. Lg. Mt. 1554 (1991).
60 GA Res. 2625, Declaration on Principles of International Law Concerning Friendly Relations
and Co-operation Among States in Accordance with the Charter of the United Nations, UN
GAOR, 25th Sess., Supp. No. 28, at 121, 124, UN Doc. A/8028(1970); Western Sahara, 1975
ICJ 12, 39 (1 October), noting the legal status of 19th century territories.
61 Charter of Economic Rights and Duties of States, GA Res. 3281, UN GAOR, 29th Sess., Supp. No.
31, at 50, UN Doc. A/9631 (1974).
62 Development and International Economic Co-operation: Transnational Corporation, UN ESCOR, 2d
See., UN Doc. E/1990/94 (1990); Draft United Nations Code of Conduct on Transnational
Corporations, UN ESCOR, Spe. Sess. Supp. No. 7, Annex II, UN Doc. E/1983/17/Rev. 1
(1983).
63 Monsanto (Canada) Inc. v. Schmeiser [2004] 1 SCR 902.
64 Convention on Genocide, UN GAOR 6th Comm. 3d Sess. 75th mtg. at 115-116 (UN Doc. A/633
(1948).
65 Le Louis, 2 Dodson Rep. 238, Judgement – Sir William Scott at 248.
 CHAPTER 6

First Nations of Canada and the Legal and

Illegal Attacks on Their Existence

Genocide is a new word for an old tragedy. The term, coined only in the twentieth
century, describes the decimation of a people, of a nation. . . We most commonly think
of genocide as synonymous with the Nazi Holocaust, the loss of six million or more
lives, or in the context of the Chinese Communist extermination of eighteen to twenty
million dissidents. The term also describes the North American Native experience.
(Strickland, 1986)

FIRST NATIONS OF CANADA AND SOME

LEGAL POLICIES OF ELIMINATION

It seems that North American indigenous peoples fare no better than those in developing
countries in the face of Western conquest and economic interests. Strickland (1986)
argues for another ‘conquest’ long before the ‘second conquest’ by transnational and
multinational enterprises, and long after the violence vested by Spaniards and others
on the hapless tribes of North America. He sees this conquest as one where the rule of
law prevailed, but its aim was to deprive native peoples of their ‘Indianness’, their pride
and their culture. He cites Alexis de Tocqueville:

The Spaniards were unable to exterminate the Indian race by those unparalleled
atrocities which brand them with indelible shame, nor did they succeed even in wholly
depriving it of its rights; but the Americans of the United States have accomplished
this two fold purpose with singular felicity, tranquilly, legally and philanthropically,
without shedding blood and without violating a single great principle of morality in
the eyes of the world. It is impossible to destroy men with more respect for the laws of
humanity. (de Tocqueville, 1945 in Strickland, 1986)

One of the most disconcerting aspects of the legal forms of genocide of North America’s
aboriginal people is one that is not described in any of the instruments that specify what
constitutes genocide; it is ‘genocide by assimilation’ (LaVelle, 2001). The main tools of
assimilation, at least in Canada, were the ‘residential schools’, where children were
removed from their families and communities for the sole purpose of ‘eliminating
their Indianness’, or as the Report of the Royal Commission on Aboriginal Peoples1
describes it:
126 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

. . . the children, effectively re-socialized, imbued with the values of European culture,
would be the vanguard of a magnificent metamorphosis: the ‘savage’ was to be
‘civilized’, made fit to take up the privileges and responsibilities of citizenship.

In an atmosphere of general disrespect for the individual rights, their community, their
tradition and history, these children were ‘educated’ in surroundings that were ‘quite
unfit for human habitation’ for the most part. There was tuberculosis in the schools,
and the conditions of heating, drainage and ventilation were appalling. In addition,
the food was of poor quality and limited quantity, so that their needs for a healthy and
varied diet were not met. Neglect and harsh punishment were endemic (Westra, 2006).
But although these would appear, prima facie, to be the sort of issues often found in
poorly funded and supervised state institutions, there were certain aspects that were
unique in this situation. General disinterest, even criminal negligence, although they
are definitely crimes, do not rise to the level of genocide, as do these deliberate attacks
on the very essence of what it is to be Indian. Thus there is the intent, openly stated
in earlier times, to eliminate the essential features of their tradition and culture, a
thing that made them a distinct people, even though there was no specific intent to kill
individual Indian children. It seems that the defining conditions of cultural genocide
(see Chapter 7), if nothing else, are present.

SUI GENERIS LAND-BASED RIGHTS

Aboriginal title encompasses the right to choose to what uses land can be put, subject to
the ultimate limit that those uses cannot destroy the ability of the land to sustain future
generations of Aboriginal peoples.2

The question of aboriginal title, and the difference between ‘ownership’ and ‘posses-
sion’ based on continued occupation and the use of traditional lands at the time of
sovereignty, rather than the first time of contact,3 clearly shows the centrality of land to
the aboriginal way of life. It is ironical that, although that centrality to their survival as
a people is acknowledged, their consent to any use of their land may ‘even’ be required
in some cases, and, when their title is infringed, ‘fair compensation will ordinarily be
required’.4 But anything that is taking place in aboriginal people’s traditional areas that
affects their lands is more than likely to affect their present and future survival. In that
case we are looking at incompensable harms, not harms that can be ‘fairly compensated’.
The special relationship between First Nations and the land is the topic of the next
section, as I consider the historical background of the Canadian government’s policies
regarding their aboriginal peoples.

Historical and traditional background to current First Nations issues

Nations or Tribes of Indians . . . should not be molested or disturbed in the possession of

such Parts of our Dominions and Territories as not having been ceded to or purchased
by Us, are reserved to them . . . as their Hunting Grounds. . . We do . . . strictly enjoin
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 127

and require, that no private Person do presume to make any purchase from the said
Indians of any lands reserved to the said Indians. . .; but that if, at any time any of
the said Indians should be inclined to dispose of the said lands, the same shall be
Purchased only by Us in our Name, at some public meeting or Assembly of the said
Indians.5

After the Constitution Act of 1982, specifically after the adoption of section 35(1)
of that act, aboriginal rights or title cannot be extinguished without the consent of
aboriginal peoples (Ulgen, 2000), despite ongoing settlement treaties disputes (Asch
and Zlotkin, 1997).
Prior to European occupation, and after the Treaty of Paris (1783), which ended
the war between Britain and France regarding Canada, the aboriginal peoples did not
sign treaties giving Europeans the power to decide their fate. In fact, as noted above, the
Royal Proclamation of 1763 was intended to protect the land rights of aboriginal people
in the region. However, before the Constitution Act of 1982 proclaimed that consent was
needed before native rights could be extinguished, the situation was somewhat unclear.
The Crown had a ‘fiduciary duty’,6 so that its power regarding indigenous peoples was
limited by its obligation to observe ‘the principles of recognition and reconciliation’
(Ulgen, 2000; Hogg, 2005). The Crown has the obligation to ensure that there are
limits to its sovereign power, in order to protect aboriginal peoples.7 The aboriginal
peoples once had sovereignty over the lands they occupied historically and the Crown
did not avail itself of the categories of terra nullius, discovery or conquest, recognizing
that these were organized native societies already present there (Ulgen, 2000).
As we will see, the 1990 case of Sparrow v. The Queen provides a clear statement of
the obligation of the Crown regarding the protection of indigenous environmental
rights. The case appears at first to be a fairly trivial one, as it deals with native fishing
rights and the fact that ‘the net restriction in the Band’s License violated Section 35’
(Manus, 2006). The court pointed out that ‘An existing aboriginal right cannot be read
so as to incorporate the specific manner in which it was regulated before 1982’.8
Yet, while ‘the taking of Salmon was an integral part of their lives’,9 and indeed the
Indians of all bands had ‘a constitutionally protected, existing aboriginal right to fish’
(Manus, 2006), there are, I believe, good and compelling reasons to view Sparrow’s
actions in a critical vein.
Questions raised by the court were many; among them, whether the new restric-
tions ‘reduced the Musqueam fish catch to levels below that needed for food and
ceremonial purposes’, and ‘whether the net length restriction caused the Musqueam
to spend undue time and money per fish caught’, both of which are not the most
important consideration in the light of dwindling natural resources (Manus, 2006).
The importance of Sparrow cannot be overestimated both for what it says and for what
emerges from the discussion.

The significance of Sparrow v. The Queen

This case provided what was later termed the ‘Sparrow test’, an approach that reappeared
in any number of subsequent cases:
128 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

The first step in this test is to determine whether there was a prima facie infringement
of an Aboriginal right. If an infringement is found, the Court would then determine
whether it was justified. There are two steps to the justification determination in the
Sparrow test. First, the Court would ask whether the objectives of the legislation were
‘compelling and substantial’. If there answer is yes, the infringement moves to the
second stage, where the Court asks whether the Crown has fulfilled its fiduciary duties
to the First Nation, by implementing the legislation in a manner consistent with the
honour of the Crown. (Imai, 2001; see also Hogg, 2005)

This test appears to be strong enough to withstand the attacks on First Nations’ rights
by corporate bodies intent on securing logging, fishing or other rights. Nevertheless
other ‘rights’ or objectives may be introduced into the argument, as providing
equally compelling objectives, beyond the rights of aboriginal peoples. For example,
these objectives might include ‘the economic and cultural needs of all people and
communities in the Province’.10 Imai (2001) notes that recently the Supreme Court
of Canada has been prepared to allow more and more ‘compelling and substantial’
reasons for infringement, so that just about any ‘resource development activity’ may be
allowed to pass the test. 11 Unrestrained resource development on the part of either First
Nations or corporate legal persons should be carefully examined from the ecological
standpoint.
The problem is that the absolute importance of ecological integrity, of retaining
lands in their natural state, has not been incorporated in the law of Canada (or any other
country for that matter). But it is essential to maintain biodiversity in the region (Noss,
1992; Noss and Cooperrider, 1994), but also to ensure the continuance of its natural
systemic processes, hence the presence of ‘nature’s services’ (Daily, 1997). This basic
necessity applies to all humans, but its absence produces particularly severe results for
First Nations and all aboriginal peoples who may not possess the temporary protection
against environmental degradation that economically stronger groups possess, and that
enables the wealthier groups to misunderstand the role and nature of such essential
services to existence. First Nations are, in a sense, the ‘canaries’ that show first and most
clearly the results of the harms we are perpetrating on our habitat.
Their rights, like those of all indigenous peoples, are collective rights (Kapashesit
and Klippenstein, 1991), and the right to social, cultural and economic survival are
necessary, but not sufficient (see Chapter 1; see also Scott, 2001b). Essentially, the
most important right these groups have is the right to their lands in their natural
condition, in perpetuity. Hence, when economic activities dictate the way ‘tracts taken
up’ are to be used, without any reference to ecological considerations, there will be
‘no appropriate approach to preserving First Nation resources’ (Imai, 2001). Neither
courts nor Canadian judges, nor even First Nations’ advocates can be relied upon to
understand and respect the conditions required to maintain indigenous peoples’ lands
in the way that will ensure both the survival and the cultural needs of future generations.
These are protected by treaty rights and, in the final analysis, by their constitutionally
guaranteed rights supported by the ‘honour of the Crown’.
But cases are tried singly by the courts, and it is impossible to fully understand
the implications of the harms perpetrated by the infringements of those land rights.
According to Imai (2001):
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 129

Unless there is a macro picture of the resources and territory needed, it would be very
difficult to decide on a micro level whether a particular ‘taking up’ would result in an
infringement of a treaty right.

This is no longer a legal question; it is a scientific one that should be based on

ecology. What is required then is the total respect for the integrity of the First Nations’
traditional lands and even, as I proposed earlier (see Chapter 1), an appropriately sized
buffer zone around these lands, and a careful and thorough analysis of the ecological
footprint of any and all commercial activities proposed. For First Nations, the basis for
this conclusion is found, first, in the Great Law of Peace of the Haudenasaunee, and
the widely accepted ‘seven generations rule’; but also, second, in the sui generis relation
they have to their lands, the very foundation of the culture and lifestyle. Essentially
then, aboriginal title manifests three basic differences from other forms of property
under common law:

1 The title can only be surrendered to the Crown if that is the wish of the community;
this may also happen if the people want to use their land in ways that are incompatible
with their traditional ways;12
2 The title arises from the prior occupation of lands, namely, their ‘historical
occupation before the assertion of British sovereignty’; the ‘occupancy requirement’
is sufficient to demonstrate the connection to a specific parcel of land for their
distinctive culture;
3 Aboriginal occupancy refers not only to the presence of aboriginal peoples in
villages and to previously settled areas, but also to the use of adjacent lands and even
remote territories used to preserve a traditional way.13

COLLECTIVE RIGHTS AND ABORIGINAL

LAND MANAGEMENT: RESPECT FOR AND
OBLIGATIONS TO NATURE

In Chapter 1 the basic requirement of ecological and biological integrity, and the
need for an additional buffer zone to ensure that the territories of First Nations are
properly protected was defended. The history of aboriginal rights and title in Canada,
including the ‘inherent limitation’ that characterizes such title, was discussed earlier in
the chapter:

For example, land used primarily as hunting grounds may not be used in such a way
as to destroy its value by being used for strip-mining. If a group claims title by virtue
of a special relationship to the land, the land may not be used in such a way to destroy
this relationship, by turning it into a parking lot.14

Equity requires a fortiori that others should abide by the same policy that has been
imposed on First Nations. If the First Nations must abide by environmental limitations
to their right to self-determination, then commercial interests, eliminated a priori
130 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

from dealing directly with First Nations for their lands (as only the Crown retains that
privilege, should the First Nations so desire), have an even clearer, non-derogable
obligation to abstain from using their lands in ways that clearly contradict both the
Canadian Constitution and international agreements. For instance, United Nations
Draft Declaration on the Rights of Indigenous Peoples (UNDD) (Article 25) states:

Indigenous peoples have the right to maintain and strengthen their distinctive
spiritual and material relationship with the land territories, waters and costal areas
and other resources which they have traditionally owned or otherwise occupied or used,
and to uphold their responsibilities to future generations in this regard. (emphasis
added)

The concept of intergenerational equity is as entrenched in international law as that of

intragenerational justice, for both environmental and ecological rights are foundational
(Brown-Weiss, 1990; Westra, 2006). This double requirement renders the attacks on
First Nations’ children and their ‘Indianness’ particularly heinous.
The environmental component of First Nations’ rights is still being debated in the
courts:15

And yet, the foremost factor in the survival of tribal cultures in nations with common
law court systems may be the courts’ willingness to accept as part of its judicial role a
responsibility to both recognize and impose the sovereign obligation to understand, value
and preserve the environmental interests of native populations. (Manus, 2006)

These obligations reflect more than the requirements of legal instruments and the
constitution. They reflect the reality of aboriginal treatment and use of their lands. This
is something technologically ‘advanced’ societies have forgotten or ignored, resulting
in the present global ecological situation.

First Nations environmental ethics and their collective rights

The Koyukon people are strongly influenced to harvest only as much as they can use
and to use everything that they harvest. Among the Koyukon, reverence for nature,
which is strongly manifested in both religion and personality, is unquestionably related
to conscious limitation of use. (Nelson, 1982)

Governed by social custom, taboos and strict regulations, most aboriginal peoples,
such as the Cree for instance, ‘do not kill more than they need, for fun, or for self-
aggrandizement, although they are fully aware of their ability to do so’ (Kapashesit and
Klippenstein, 1991; see also Feit, 1982). In general, aboriginal hunters are regulated
through ‘rotational hunting’ and by shifting the consumption from one animal to
another, as well as other seasonal considerations to ensure sustainability (Feit, 1987).
Their practices emphasize ‘reciprocity and balance’ in their relation with the natural
world, of which they deeply believe they are a part. Hence aboriginal environmental
ethics are deeply embedded in their culture and in the social fabric of their community,
and many environmental philosophers have noted this important fact, especially
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 131

Callicott (1989b). But the best way to understand that connection starts with the famous
work of forester Aldo Leopold (1949), who defines right conduct as that which ‘tends
to preserve the ecological stability, integrity and beauty of the biotic community, and
wrong as it tends otherwise’.

First Nations and the land: Our forgotten bond

It is not necessary for indigenous peoples living a traditional lifestyle to work out an
explicit environmental ethic because their essential ‘Indianness’ or the accumulated
beliefs of their communal life incorporate precisely the outlook required for sane
environmental policies, outlining the ‘principle of integrity’ as the basis for an
environmental ethic (Westra, 1994a). In addition, however, their tradition incorporates
a spiritual role for nature that is unique, as it is not present in either environmental
ethic literature or in ecological science (Kapashesit and Klippenstein, 1991). In fact,
their approach represents the one way today’s societies may still halt or at least moderate
the environmental catastrophe that is upon us (see, for example, Gore, 2006) as:

Aboriginal ecological management systems are distinct and largely independent from
a modern Western state. Aboriginal ecological management systems are based on
local knowledge and structures, and derive legitimacy from their traditional origin.
(Kapashesit and Klippenstein, 1991)

From keeping track of the number and conditions of beaver lodges, to establishing
‘hunting bosses’ charged with controlling where to hunt and how much could be
taken, aboriginal practices manifest both scientific understanding of and respect for
communal resources (Kapashesit and Klippenstein, 1991; see also Chapter 8). Had the
affluent societies of the Western world been governed by such principles, we would not
be facing what I have termed ‘the final enclosure movement’, as the commons and even
the common heritage of mankind, are almost entirely non-existent today (Beyerveld
and Brownsword, 2001; Westra, 2004b).
The reciprocity with non-human animals and all of nature, and the intimate bond
First Nations share with both, is something that modern liberal individuals have long
since cast aside, as our economics are based on an impossible and unfair ‘growth’
ethic. Ever-larger takings from nature, without any consideration for human and non-
human life, and even less for the vulnerable people that try to cling to that nature,
such as indigenous groups or future generations (Westra, 2006), manifest the violently
oppressive aspects of our ecological footprint.
The neoliberal goals of an expansive economy and ever-increasing power are based
on not recognizing limits to growth and to enrichment, no matter how unjust and
at what cost. Ultimately, ‘appropriating’ resources indiscriminately leads to a general
biotic impoverishment that will affect first, and most obviously the ‘canaries’, or those
who have neither the protection afforded by better economic conditions nor the luxury
of being able to move elsewhere. Eventually, as epidemiology increasingly shows, we
are all affected, albeit in different ways. Neither attackers nor victims can fully sever
the natural bond we all have to the Earth. It might help us to learn from indigenous
peoples, who are the only communities presently fighting to protect that bond.
132 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

THE PROBLEM OF ‘FROZEN RIGHTS’ AND BORROWS’

CRITIQUE OF THE ABORIGINAL RIGHTS TEST

In ways that we may not fully recognize or appreciate, native Canadians represent
our society’s only deep historical links to the land, consolidated over millennia. If their
land is now our land as well, their relationship with that land is particularly worthy
of our understanding and respect. (Slattery, 1987)

We must understand and respect First Nations’ relations with the land, and those
relationships must also be respected through entrenchment in the law for their
protection. But some question this entrenchment and the effects that follow upon it.
John Borrows (1997–1998) terms aboriginal rights based on their traditional relationship
to the land ‘frozen rights’. The Constitution Act, 1982, section 35(1) states that ‘The
existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby
recognized and affirmed’. Tests for defining the import and scope of aboriginal rights
may be found in Van der Peet,16 under ten headings intended to specify what constitutes
a ‘distinctive culture’. Borrows (1997–1998) isolates the following:

1 ‘the perspective of Aboriginal peoples themselves on the meaning of rights at

stake’;
2 ‘the tradition, custom or practice being relied upon to establish the right’;
3 ‘the centrality of the practice to the group claiming the right’;
4 the practice under consideration ‘integral to a distinctive culture’ that has
‘continuity with activities which existed prior to the arrival of the Europeans in
North America’;17
5 the evidence offered should be accepted even if ‘it did not conform precisely with
evidentiary standards in private litigation’;
6 aboriginal rights are not ‘general and universal, but related to the specific history
of the group claiming the right’;
7 the practice contains ‘independent significance to the community’;
8 aboriginal rights involve the ‘distinctive nature of the aboriginal practice’;
9 ‘a distinctive practice does not derive solely as a response to European influences’
and it ‘can arise separately from the aboriginal group’s relation to the land’;
10 the right may arise from the prior social organization and distinctive culture of
aboriginal peoples’.

Borrows (1997–1998) finds several aspects of the Van der Peet test problematic. His
critique includes issues that seem to diminish rather than enhance the content of
aboriginal rights in some way. The starting point ought to be the two principles that
are internationally recognized to be basic to the protection of indigenous rights: ‘self-
determination’ and ‘cultural integrity’, and the implication of those principles. The
first thing to note is that these are two equal domains but they are interconnected, and
both are collective in nature. Hence, for instance, individual self-determination is not
part of the protected basis upon which aboriginal communities can rely. Several cases
appear to bring into question individual choices: the right to fish using ‘contemporary
implements’ for instance, although fishing is certainly an activity that was practised
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 133

since time immemorial. As Borrows (1997–1998) notes the Musqueam ‘always fished
for reasons connected to their cultural and physical survival’.
The court also acknowledged that those rights could be enjoyed equally by fishing
in a more contemporary manner than by using more traditional ways. But the conflict
between aboriginal activities ‘integral’ or ‘distinctive’ to the culture at the original
time of first contact with Europeans, and one of the activities they seek to pursue in
modern times, persists. For example, the establishment of casinos and gambling places
is a fairly recent kind of activity, with no ‘continuity’ with pre-contact culture (Borrows,
1997–1998). Nor is that practice ‘central’ to any group’s distinctive culture, or even
part of any distinctive aboriginal national identity; ‘incidental practices, customs and
traditions cannot qualify as aboriginal rights through a process of piggybacking on
integral practices, customs and traditions’.18
But it is modern-day aboriginal people who come before the courts with current
problems and issues, hence it seems unfair to ‘freeze’ any aboriginal rights to those
present several centuries ago, from both substantive and procedural points of view.
In other words, equity considerations suggest that both evidentiary rules and subject
matter in each case ought to incorporate first and foremost the indigenous point of
view today, and Borrows (1997–1998) emphasizes this approach.
Nevertheless it seems that not every aspect of the ‘essentialism’ practised by the courts
should be judged as inappropriate. The existence of land-based cultures of aboriginal
peoples is not an outmoded ‘frozen’ form of their rights but a basic and fundamental
aspect of their existence as a people, totally aside from individual preferences or non-
collective choices. Therefore, this is not only a ‘Western, non-aboriginal perspective’,
it is a basic foundation of their rights in international law, the best and strongest
argument that aboriginal groups can advance for their own protection. The emphasis
on different hunting or fishing techniques or equipment, or whether or not a casino on
reserves is appropriate and should be permitted ought not to be judged solely from the
standpoint of antiquated choices and lifestyles.

The Crown’s obligations: Local issues or fundamental principles?

But, at the least, the following sorts of regulations would be valid: (1) regulations that
operate to preserve or advance section 35 rights (as by conserving natural resources
essential to the exercise of such rights); (2) regulations that prevent the exercise of
section 35 right from causing serious harm to the general populace or native peoples
themselves (such as standard safety restrictions governing the use of fire-arms in
hunting); and (3) regulations that implement state policies of overriding importance
to the general welfare (as in time of war or emergency). (Slattery, 1987)

The most important point to keep in mind is emphasized by the wording of section
35(1) and the underlying principles dating back to the Royal Proclamation of 1763
and re-emphasized in Delgamuukw, Sparrow and other cases.19 The Crown’s fiduciary
duty and the aboriginal peoples’ right to their lands are based on principles, not on
specific examples. They are universally valid, despite the attempts found in some cases
to restrict and specify them as ‘distinctive’ or specific to this or that national culture, as
we noted in the Van der Peet test.
134 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

The cases deal with individual hunters or fishers, or others involved in specific
forms of trade. The universally valid rights they all share represent the Crown’s non-
specific obligation: it is the sui generis land-based rights discussed above, rights to
the land that will not impair ‘the ability of the land to sustain future generations of
aboriginal peoples’.20 The Crown’s fiduciary duty is not a temporary contract, as neither
section 35(1) nor any other instrument dealing with these issues states time limits to
those obligations, nor is the duty owed only to one or another nation. That duty, by its
very nature, demands respect for the integrity of the land, in perpetuity. That in turn
requires, as I argued in Chapter 1, protection of the land from both internal and external
threats, starting with the addition/protection of a buffer zone to ensure the existence
of bio/ecological integrity, on which alone future generations’ rights can depend. In
addition, that fiduciary duty should have strong negative as well as positive components.
The negative protection should be exercised by denying firmly the individual economic
rights of natural or legal persons who would pursue their own interests at the expense
of the health, safety and integrity of indigenous peoples.
The question should not be, was a casino part of pre-confederation Indian lifestyles,
but can the casino be built in a way that is less deleterious to the environment than
other enterprises, and can it be built in a way that does not have an adverse impact on
the health and integrity of aboriginal lands in the area? Conversely, a case involving
land leased for a golf club21 should involve more than the more obvious issues discussed
in the case: lack of information, lack of consent by the band, and the concomitant
breaches of fiduciary duty of the Crown, as well as breaches of trust and agency.
The main issue should have been the presence of the ‘inherent limit’ for aboriginal
enterprise, no matter who approved the deal. Although this might be viewed as a
paternalistic approach, it is instead one of respect for their uniqueness that depends on
ecologically sound choices. Golf clubs are among the most hazardous areas on earth,
as the amounts of pesticides, fungicides and other chemicals involved in keeping their
‘greens’, sound the death knell for the area’s integrity and multiply the cancers and
other grave diseases of nearby inhabitants.
If the Crown has a fiduciary duty to protect the integrity of Indian lands and the
supporting lifestyle these lands can provide for present and future generations, then
that obligation cannot give priority to the interests of individuals or collectives inside, or
even right outside Indian lands, without contradicting its own proclaimed intent. Hence
any project or proposed activity within or outside the lands where aboriginal peoples
reside, ought to be judged first from that point of view. If it is not, then the commitment
to ensure the lands for all Indian generations is meaningless. The scientific research
available in support of this argument is uncontroversial, and both lawyers and judges
sitting in courts ought to be prepared to assess cases and situations in the light of that
knowledge (Westra, 2006; WHO, 2002; Licari et al, 2005).
Returning for a moment to Slattery’s (1987) summation of the Crown’s obligations
listed above, his first point supports the conclusions advanced here. The second point
is equally important: the harms suffered by the proverbial ‘canary in the mine’ are only
the portent of what will befall the miners, unless they cease their activity immediately.
The same is true in this case: the harms perpetrated on aboriginal populations by
disregarding ecological and epidemiological evidence of the effects of hazardous
industries, are more visible first in non-mobile populations that live directly on the land.
But it is also a foregone conclusion that all humans will be adversely affected in some
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 135

measure. Hence policies concerned with the general welfare (point three) could simply
learn to comply with the basic tenet of the proclamation and of the Constitution Act. The
duty of protection exists for all citizens (Westra, 2006), and the implied commitment to
future generations of aboriginal people should support a reconsideration of all general
welfare policies in order to protect all people in Canada.

ENVIRONMENTAL RACISM: A BRIEF INTRODUCTION

. . . the current environmental protection paradigm has institutionalized unequal

enforcement, traded human health for profit, placed the burden of proof on the
‘victims’ rather than on the polluting industry, legitimated human exposure to
harmful substances, promoted ‘risky technologies’ such as incinerators, exploited the
vulnerability of economically and politically disenfranchised communities, subsidized
ecological destruction, created an industry around risk assessment, delayed cleanup
actions, and failed to develop pollution prevention as the overarching determinant
strategy. (Bullard, 2001)

Robert Bullard is arguably the best-known social scientist and expert on environmental
injustice regarding African American communities in the US. But the initial problems
cited in the paragraph above, although aimed at the problems faced in urban minorities
in his country, also represents a good introduction to the topic of traditional indigenous
communities in Canada and elsewhere. In passing, it is worth noting that ‘environmental
justice’ is part of regularly taught courses at US universities from Harvard to Auburn,
Alabama, whereas, at least until 2000, when I was in the ethics field as a professor
in Canada, the University of Windsor was one of the few Canadian universities that
offered such a course (from 1995 to 1999, I taught a very popular course entitled,
‘War, Terrorism and Environmental Racism’, for the philosophy department of that
school).
In the US, the literature and research on environmental racism, or environmental
justice, regarding African Americans is well established, and it emphasizes the multiple
problems afflicting those citizens in various states, especially, but not exclusively, in the
southern US. Repeatedly, the problems arise when corporate individuals pursue their
interests and those of their shareholders at the expense of vulnerable, impoverished
populations of colour. For the most part, the rationalizations offered by large companies
assured African Americans and the general public that the siting decisions regarding
hazardous facilities were purely motivated by economics, not race, from Chicago’s
‘toxic doughnut’ (Gaylord and Bell, 2001),22 Titusville, Alabama and Browning-Ferris
Industries (Westra and Lawson, 2001), ‘cancer alley’, Louisiana (Wrigley and Shrader-
Frechette, 2001), and Halifax, Canada (McCurdy, 2001). However, there is a vast
difference between these citizens and the indigenous communities in Canada. Both
are affected by decisions based on environmental racism, but the former would like
nothing better than to be integrated within the general community, a very hard goal to
achieve for a poor visible minority; the latter want to be respected and recognized in
their difference and uniqueness instead, and ‘integration’ in their case, is an existing
and constant danger to their existence as a people.
136 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Environmental racism refers to harms perpetrated in and through the environment,

which affect disproportionately populations of colour. It includes both procedural and
geographical inequities. Speaking of the problem in the US, Bullard (2001) argues
that:

The geographical distribution of both minorities and the poor has been found to be highly
correlated to the distribution of air pollution, municipal landfills and incinerators,
abandoned toxic waste dumps, lead poisoning in children and contaminated fish
consumption.

Some of the categories emphasized in Bullard’s writing fit equally well with indigen-
ous traditional communities. There are serious lacunae in the regulatory framework
regarding both of these communities, in Canada as well as in the US, which include
problems of procedual equity, geographical equity and social equity (Bullard, 2001).
According to Bullard (2001), the following are the five principles (without some of the
details that pertain primarily to other populations) of environmental justice:

1 the right to protection;

2 the prevention of harm;
3 the need to shift the burden of proof;
4 laws should obviate the proof of intent; and
5 equities must be redressed.

Keeping in mind these principles, we can now return to the Canadian situation, first,
to the ‘settlement’ of a case that demonstrates why Bullard’s analysis is also applicable
to Canada: the Grassy Narrows and White Dog case. Finally I end this chapter with a
somewhat dated case study that incorporates not only environmental racism, but also
several other issues exclusively relevant to the Canadian indigenous peoples’ scene, the
1990 Oka case (Wellington et al, 1997).

The Grassy Narrows and White Dog Reserves of Northern Ontario

. . . the settlement and the events leading up to it provide a striking example of the
fragility of Canadians’ environmental rights in the face of environmental wrongs.
Access to justice has been difficult to achieve for victims of environmental catastrophes.
The substantive, procedural and evidentiary rules in private environmental actions
appear biased in favour of the polluter. (West, 1987)

The first point to note is that even a ‘mediated settlement’ is, at best, a fought and won
measure based on laws intended to prevent the occurrence of multiple harms. The case
involves methyl mercury pollution, contaminating the English-Wabigoon River system
downstream from Dryden, Ontario:

Two pulp and paper plants in the area, the Dryden Paper Company Ltd., and Dryden
Chemicals Ltd., both subsidiaries of Reed Paper Ltd., of England, used mercury cells
in sodium chloride electrolysis to produce caustic soda and chlorine. (West, 1987)
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 137

The harm from mercury pollution is not a new discovery, as alternative technologies
had already been discovered in the 19th century (Charlesbois, 1977); also, scientific
evidence about the toxic effects of methyl mercury poisoning have been known since
the early 1960s (West, 1987). In fact, the Ontario government had sent a team to the
Japanese courts.23
In Chapter 8, I discuss the effects of various chemicals, especially pollution from
oil production, not only on human physical health, but also on brain and character
development and behaviour, in relation to the Lubicon case, as well as the Arctic area
of Nunavut (the information for those cases comes from research by the WHO, as
well as the November 2006 groundbreaking article by Grandjean and Landrigan in the
Lancet). In this case, similar effects were observed in the Ojibway communities because
the ravages of mercury pollution affect all aspects of the health and the life of the
inhabitants. West (1987) lists some of the grave problems they encountered:

. . . in the years immediately preceding and following the pollution, the unemployment
rate quadrupled from twenty percent to eighty percent. . . Statistics indicated increases
in violence, alcohol-related deaths caused by pneumonia, exposure, and suicide.

In addition, what emerged was ‘the link between mercury poisoning and the increase
in deviant and violent behaviour’ (West, 1987; see also Charlesbois, 1977; Troyer, 1977).
Nor is the mercury poisoning a thing of the past. Recent research24 focuses on mercury
poisoning occurring at Thunder Bay and elsewhere and is an example of current
scientific information on this problem in Ontario (see table below):

Ontario mercury cell chlor-alkali plants:

Operation dates and release of mercury
Location Plant Date Date Years in Operational
mercury mercury operation Hg release
cells cells in tonnes*
opened closed
Sarnia DowChemical 1948 1973 25 317.73
Canada Inc.
Cornwall ICI Ltd. 1935 1995 60 196.13
Sarnia DowChemical 1970 1973 4 71.73
Canada Inc. III
Marathon American Can of 1952 1977 26 62.11
Canada Ltd.
Hamilton Canadian 1965 1973 8 51.47
Industries Ltd.
Thunder Bay DowChemical 1966 1973 8 43.30
Canada Inc.
Note: *Does not include mercury released in solids
Source: After Tripp and Thorleifson (1998)
138 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

43.30 tonnes of mercury that was released by Dow Chlor-Alkali plant in Thunder Bay,
right next to Fort Williams First Nation, puts into perspective [the Grassy Narrows
case]: the Chlor-Alkali plant at Dryden (which mercury poisoned Grassy Narrows and
White Dog people) only released 10 tonnes of mercury.

In addition, scientist Michael Gilbertson recently retired from the International Joint
Commission and in 2006 submitted a PhD thesis entitled ‘Injury to health: A forensic
audit of the Great Lakes Water Quality Agreement (1972–2005) with special reference
to congenital minamata disease’.
The scientific evidence has been available for years, yet in 1985 when the federal
Department of Indian affairs contacted Mr Justice Emmett Hall (former Supreme Court
of Canada Justice), who visited Grassy Narrows and studied a ‘211 pages legal brief
prepared for the Indian Bands by Robert Sharpe, a University of Toronto professor and
expert in such litigation’ (West, 1987), what emerged persuaded him not to recommend
going to trial. He believed that the results of the complex and time-consuming litigation
would be uncertain, hence that the best interests of the Ojibways would be served by ‘a
negotiated settlement outside the court system’ (West, 1987).25
There is no question about the connection between mercury pollution and the
diseases that follow upon that poisoning, yet Mr Justice Hall was correct in stating the
following, among his many concerns, in his affidavit:

(vi) I was concerned about the Plaintiff’s ability to establish their claim that mercury
poisoning posed a potential hazard to the health of the unborn because of mercury
induced genetic damage in one or both parents.
(vii) In general, I was concerned about the likelihood of legally establishing the link
between mercury pollution and health damages because the symptoms of mercury
poisoning, such as tremor, ataxia, and sensory abnormality are also the symptoms of
conditions such as alcoholism. . .26

Hence, to ensure some degree of success for the First Nations involved, Mr Justice Hall
decided to negotiate a settlement outside the court system. Because of the problems
existing in the evidentiary and regulatory framework in environmental cases, ‘the
Ojibways Bands really did not have an alternative to settlement’, and the Can$14 million
they received, helped them cope with the problems they were facing, although, to be
sure, ‘no level of compensation exists which can ever redress the harms caused by the
poisoning’ (West, 1987).
The problem, as we have noted repeatedly, is not linked only to this case; it is
a systemic problem, endemic to Canadian regulatory legislation. ‘Canadian plaintiffs
must rely on inadequate common law remedies for a number of reasons’ (West, 1987).
These reasons include: first, the reliance of environmental law on English common
law tort system, ‘a system geared to furthering the interests of industrial enterprises’;
second, ‘group disputes and collective rights do not fit comfortably into the traditional
framework of tort litigation’; third, ‘nuisance’ action is incapable of accommodating
modern scientific realities; fourth, ‘the Canadian Judiciary is reluctant to play an active
role’ to address environmental degradation and human rights; and fifth, the question
of the ‘burden of proof borne by the victims in environmental tort litigation’ is an
‘important insurmountable hurdle’ (West, 1987).
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 139

Most of the problems listed here are clearly a part of the general difficulties faced
by all cases involving environmental racism. West (1987) argues that the US judiciary
is better equipped to accommodate environmental court cases but the analysis of the
US situation in the work of Bullard (2001) points to the contrary, and we also noted
in Chapters 4 and 5 that cases tried in the US under ATCA are similarly affected. Both
countries, as well as international law in general, have not accepted the direct causal
link with health present in these cases:

. . . in environmental litigation a direct line for the health problems must be established,
there is a tendency for some courts to confuse scientific and medical questions with
legal questions, where they arise in a legal context. (West, 1987; see also Catrilli,
1984; Large and Mitchie, 1981)

In addition, I have argued that the whole concept of ‘torts’ and compensation for
environmental injuries is legally insufficient and morally inadequate (Westra, 2004a).
The envionmental attacks directed at vulnerable people should be considered crimes
and proscribed accordingly. Aside from possible compensation to the victims, if harms
occur they should be treated as the violations and homicide that they are. Further, the
idea of closing cases with compensation may give some relief to the victims but does
little or nothing to restrain the criminals who can easily pass the expense along to
consumers, or claim it as a legitimate business expense.
Like other ongoing, economically driven issues, the whole idea of not addressing
these grave problems through prevention but only after the fact, and only as torts, should
be revised completely. One is reminded of the huge campaigns mounted everywhere
to find the ‘cure’ for cancer, despite the fact that Samuel Epstein published in 1978
a thorough indictment of that approach as he explained the role of the ‘dirty dozen’
environmental practices that must be eliminated to achieve prevention of cancer
instead (Epstein, 1978). Of course those who are presently ill must receive treatment,
but the fact that treatment is available should not blind us to the fact that most cancers
are extremely profitable for pharmaceutical companies and others, whereas prevention
would be economically harmful to both pharmaceuticals and chemical companies
(Grandjean and Landrigan, 2006; Tamburlini, 2002; WHO, 2002; Licari et al, 2005).
Hence, rather than compensating for the harms, strong environmental regulatory
regimes would eliminate the suffering of countless people, such as those in the Grassy
Narrows and White Dog in the ‘line of fire’ from such operations. I return to the
possible role of the WHO and other public health considerations in Chapter 10. For
now, it seems that racism is alive and well in the cases we have considered, and that, in
Canada, the indigenous peoples bear most of the brunt of it. The American experience
demonstrates how often the use of ‘brownfields’ and other apparent economic
considerations, mask environmental racism. Such racism wears many masks, such as
business requirements or economic rationality for decisions that are either based on
it, or help to perpetuate it in the future, like the continuation of using polluted areas
for more polluting businesses, thus perpetuating brownfields in areas where the lack of
land value makes further hazardous sitings a ‘good’ proposition, not only now but in
the future. The next case describes and discusses several other related issues as well as
environmental racism.
140 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

ENVIRONMENTAL RACISM AND STATE

TERRORISM AT OKA: A CASE STUDY27

This is a case study about environmental racism, recently emerging as a ‘new’ issue in
the US and in countries in the South. Environmental racism is a form of discrimination
against minority groups and countries in the South, practised in and through the
environment. It involves such practices as the siting of hazardous or toxic waste dumps
in areas inhabited primarily by people of colour, or hiring African Americans or
Native Americans to work in hazardous industries, or even exporting toxic waste to
impoverished countries (Westra and Lawson, 2001). However, the problem acquires
a new ‘face’ when it affects the aboriginal people of Canada. In their case, questions
about environmental racism cannot be separated from issues of sovereignty and treaty
rights, and this is clearly not the case for either urban or rural African Americans and
nor is it true of American Indian people. In the US, Native Americans are ‘regarded in
law as “domestic dependent nations” with some residual sovereign powers. In Canada
the majority of First Nations people seek recognition under the Constitution of Canada
of an inherent right to self-government’.28
This difference is extremely significant as it injects an additional component of
violence, repression and state terrorism that is largely absent from cases affecting visible
minorities in the US, where even violence takes on quite different connotations and
has no component of national self-defence (Westra and Lawson, 2001). This additional
component of Canadian ‘difference’ emerges clearly in the discussion of the Oka
confrontation below.
Environmental racism is not a new phenomenon, but it is a new issue to some
extent as it was targeted by the Clinton administration; Clinton signed an ‘Executive
Order’ on 11 February 1994 to make environmental justice for minorities a specific
concern for the Environmental Protection Agency (Bullard, 2001).

The Mohawks at Kahnawake and Kanesatake, and the confrontation at

Oka, Quebec, summer 1990

In order to understand the events culminating in the summer of 1990, several complex
issues underlying the conflict must be understood. These are: first, the position of the
Mohawks and their forms of government, as well as that of the Canadian government;
second, the environmental issue and the demands of the township of Oka; and third,
the chronology of the actual events and confrontations. All three issues are discussed
in turn.

The federal government, the ‘Indian Act’ and Mohawks’ governance

Mohawk communities in Canada total 39,263 persons, including Kanesatake, Kahnawake,
Akwesasne and another four tribes. The Kanesatake community totals 1591 persons and
the Department of Indian Affairs funds their total budget for education costs. Status
Indians are eligible to attend both elementary and secondary schools off the reserve.29
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 141

Nevertheless the ‘status of Kanesatake with respect to the land does not fit within the
usual pattern of Indian reserve lands in Canada’: they are Indians within the meaning
of the term under the Indian Act, live on Crown Lands (since 1945) reserved for their
use (within the meaning of section 91(24) of the Constitution Act of 1867), but they do
not live on lands clearly having status as an Indian Act Reserve.30
The reason for this anomaly can be traced to the 1717 Land Grant by the King of
France, and to seigneurial grant at Lac de Deux Montagnes given to the Ecclesiasticals
of the Seminary of St Sulpice. The Sulpicians’ mandate was ‘the purpose of protecting
and instructing the indigenous people (a policy reflecting the ethnocentrism and
paternalism of that time)’.31 This led to continuous disputes between the Mohawks at
Kanesatake and the Sulpicians over land sales and management. In fact, the Sulpicians
asked France’s king for a second land grant ‘to provide a greater land base for the
Indians’, and this, too, was granted in 1735. The Indians were told that the land would
revert to the Sulpicians only in the event that the Indians would decide to leave. But
the Sulpician’s ‘tutelage’ and paternalism quickly turned to tough-minded abuse. The
Indians were allowed to build houses and grow crops, but they could neither sell land
nor wood or hay without explicit permission. They could be brought to trial for cutting
wood for snowshoes, house repairs or firewood, and despite the Indians’ repeated
petitions to the King of France and, after his defeat by the British, to all those in power,
their miserable conditions and the exploitation of their lands continued unabated. The
Sulpicians explained their position by saying that, without strict controls, the ‘savages’
would return to their ‘natural laziness’ (Pindera and York, 1991).
A French native of the region, turned Methodist missionary, records many instances
of inhumane cruelty and mistreatment of Indians on the part of the priests. When Amand
Parent returned to establish a small Methodist church at Oka in 1872, the Sulpicians
felt he taught the Indians to behave ‘above their station’, and he too encountered ill-
treatment and hostility. In 1875, the church was torn down by Crown order because it
had been erected without permission with wood from the seigneury (Parent, 1887). In
1936, the Sulpicians, blatantly disregarding the original French mandate, sold much of
the land to a rich Belgian, Baron Empain, who in turn resold it in 1950.
Canadian government records note continuing disputes, which at times led to
confrontations in the area. In 1912, a decree of the Privy Council (then the highest
court of appeal for Canadian cases), officially deprived the Mohawks of any rights
in respect to the lands ‘by virtue of aboriginal title’.32 As the seminary continued to
sell off lands, the federal government attempted to put a stop to the controversies by
purchasing the rest of the Sulpicians’ lands in 1945, without consulting the Mohawks.
These lands, however, were interspersed with ‘blocks’ of land privately owned by the
municipality of Oka (Begin et al, 1990).
The Mohawks, meanwhile, continued to advance their claims on separate, but
related, legal grounds:

1 territorial sovereignty flowing from status as a sovereign nation;

2 treaty rights;
3 the Royal Proclamation of 1763;
4 unextinguished aboriginal title under common law;
5 land rights flowing from the obligations imposed on the Sulpicians in the 18th
century land grants by the King of France. (Pindera and York, 1991)
142 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

The federal government believed that the issues were settled by the Privy Council Order
of 1912, and that the claims were weakened by the fact that the Mohawks have not been
continuously in possession of the land since time immemorial, as ‘land use by natives
and non-natives is also recorded’. These land users included some white settlers, as well
as other native tribes. However, the federal department also described the Mohawks at
Oka as descendents of some of these other groups who had been in possession, that is
the Iroquois, Algonquians and Nipissings. In fact the federal government attempted to
purchase additional land to give the Mohawks at Kanesatake a ‘unified land base’, from
1985 up to the time of the Oka conflict.
Additionally, the Canadian government requires certain specific forms of Indian
governments in order to recognize Indians’ sovereign nation status. The Mohawks
at Oka have a long history of debate about their own forms of governance. They
belong to the Six Nations of the ‘Iroquois Confederacy’ (the other five are Oneida,
Onondaga, Cayuga, Seneca and Tuscarora), and are governed by the ‘Great Law of
Peace’ (Kayanerakowa) or the ‘Longhouse System’. But the Department of Indian
Affairs (under the Indian Act), supports the act’s election system of band councils.
Instead, Chief Samson Gabriel wrote in 1967 that the Longhouse was the only form of
legitimate Mohawk governance. As Chief Gabriel put it:

We recognize no power to establish peacefully, or by the use of force or violence, a

competitive political administration. Transactions of such groups in political and
international affairs is very disturbing to the Six Nations ‘Iroquois Confederacy
Chiefs’. (Pindera and York, 1991)

In essence, there is a direct connection between any possible progress on land rights,
native sovereignty or self-determination, and progress on the issue of Mohawk leadership
or governance. The Department of Indian Affairs may permit the application of the
Indian Act ‘on an interim basis’, until some appropriate alternative local form of
government policy can be established. If the Mohawks could not agree on the forms of
leadership and governance appropriate to their tribe, then the Department of Indian
Affairs could refuse to consider their claims because no local (native) governance policy
was firmly established, as required.

The environmental issues and the demands of the Oka township in 1990
The previous section details the political and ideological controversies that led to the
violence at Oka:

The controversies included conflicts over divergent native ideologies about self-
government and about the historical residence of other tribes in the disputed area,
which was viewed by some to invalidate any native land claim on the part of the
Mohawks. (Begin et al, 1990)

Before turning to a narrative of the events of the summer of 1990, it is necessary to show
the role environmental issues played in the racism and the violence of the events that
followed the dispute. The municipality of Oka ‘legally owns the clearing in the Pines
and calls it a municipal park’ (Begin et al, 1990), but the Mohawks argue that the land
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 143

is theirs, and that they never sold it or gave it away, hence they do not recognize that
ownership claim. The Pines have been part of the Kanesatake territory for over 270
years. About 100 years ago, the fine and sandy soil of the crest of the hill overlooking
Oka was severely affected by deforestation and in danger of being washed away by the
rains. The Mohawks, together with the Sulpician fathers, planted thousands of trees in
the unstable sand. That area is now known as ‘the commons’, at the very heart of the
800 hectares of Mohawk settlement. Thus the Mohawks’ approach to dealing with the
Pines was ecologically sound, and it is easy to understand their dismay at the later turn
of events. They believed that the original ‘Lake of Two Mountains’ seigneury (including
the parish and the town of Oka), was their property. Yet they had to watch powerlessly
as housing and recreational developments, including a golf course, continued to erode
what they took to be Mohawk lands, in order to benefit the rich newcomers.
A small graveyard, the Pine Hill Cemetery, holds the bones of dead Mohawks at
Kanesatake, the parents and grandparents of the warriors who were to fight for the
Pines in 1990. It is placed between the Oka golf club’s driveway and its parking lot.
The Mohawks have cherished the Pines since they were planted, and they organize a
careful clean-up of the area every year. But in March 1989, Oka’s mayor, Jean Ouellette,
unveiled his plans for the expansion of the golf club. A strip of 18 hectares of forest
and swampland near the clearing in the Pines was to be bought and leased to the club
in order to add nine holes to the golf course. The mayor did not consult the Mohawks
as he believed he had the law on his side; the government had ‘consistently denied the
Mohawk land claims for 150 years’ (Pindera and York, 1991). When an angry citizen
demanded to know why the township had been faced with a fait accompli’, instead of
being consulted before the fact, and why the Indians had not been consulted, Ouellette
responded with a shrug and said, ‘You know you can’t talk to the Indians’ (Pindera and
York, 1991). Many citizens were outraged by the mayor’s attitude; 900 signed a petition
opposing the project, which was perceived not to be in the interest of the general public
as well as being environmentally unsound.
The Pines’ soil is sandy, so erosion and shifting sands on the hillside would again
become a continuing threat, if the painstakingly planted and nurtured trees were to be
cut. At one time, in the 19th century, the sand had threatened to bury the town, and
that formed the rationale for the planting of the pines themselves. Moreover, there are
two additional environmental problems that are not even mentioned in the literature
describing the Oka incident: first, the Indian ‘world view’ about land and their respect
for natural entities and laws; and second, the particularly hazardous nature of the
envisioned project.
Native world views (basic to all Indian groups in North America) involve respect for
nature and all the creatures with which we share a habitat. Disrespect and wasteful use
of anything on Earth is unacceptable to Indians as a people, totally aside from personal
preferences or even personal or group advantage (Sagoff, 1988). This represents a
basic belief, a value akin to a religious one, and not to be confused with political beliefs
about sovereignty or self-governance.
Further, even aside from the issue of shifting sands and deforestation, or of religious
and traditional beliefs, the enterprise, namely a golf course, for which deforestation was
planned, is often a significant source of environmental contamination, in spite of its
benign green appearance (Pimentel, 1993). Lise Bacon, environmental minister at the
time, could neither help nor intervene because the law did not require an environmental
144 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

impact study for a recreational project in the municipality. But although golf courses
are much in demand when they are adjacent to better housing developments, as well as
for the sport for which they are created, their perfect manicured appearance depends
heavily on fungicides, pesticides and other chemicals that are hazardous to wildlife,
ecosystems and human health (Pimentel, 1991; 1992).
Hence, aside from the question of Mohawks’ rights in regard to First Nations’
sovereignty, the people of the Pines were correct in their opposition to the development,
and so were the other objectors who protested on environmental grounds based on the
value of life-support systems and the inappropriateness of siting a hazardous, chemically
dependent operation near a fragile ecosystem on which the Mohawks depended.
(Westra, 1994a; 1994b). The Mohawks’ lifestyle requires a healthy, unpolluted habitat,
even more so than other Canadians, because their world view entails particularly close
ties to the land, and their traditional reliance on hunting and fishing self-sufficiency
demands it. As a people and as a separate nation, they have the right to live according
to their religious beliefs, without being second-guessed or overruled by others. Even
if they were not viewed as a separate nation and a separate people according to the
Canadian Constitution, but simply as any other Canadians, they would have the right
to live according to their own convictions. But the respect due and normally accorded
separate ethno-cultural or religious groups was not accorded to the Mohawks. They
were treated in a way which did not accord them either the respect due to them as free
and equal citizens, or the respect due to citizens of a separate sovereign nation (that is,
as people who were not subject to Canadian laws on their own territories). This lack of
understanding and respect led to the ongoing hostility and the racism demonstrated
through the events of the summer of 1990.
In this case, the racism was and is perpetrated in and through the land; it manifested
itself in the careless attempt to impose environmental degradation and ecological
disintegrity, hence it can be termed appropriately a form of environmental racism, but
one which showed a unique, specifically Canadian ‘face’.

The chronology of the events and the confrontation at Oka

In early March 1990, the township council pressed for proceeding with plans for the golf
club expansion, against a background of vacillations from Ottawa about appropriate
forms of governance. The Mohawks, although disagreeing among themselves, were
united in their opposition to the council and the mayor of Oka. In essence, although
the Mohawks had always maintained that even the blocks that had been sold off to the
township were part of their territory, there was a lot of disagreement on the question
of compliance with the Indian Act. The Department of Indian Affairs demanded that
‘traditional or band custom councils’ be used to pass band resolutions and to administer
funds from Ottawa, and that some sort of democratic elections be used.
The Longhouse form of government was the Mohawks’ traditional way, involving
clan mothers whose role was ‘to listen to the people of their clans and counsel the
Longhouse chiefs’ (Pindera and York, 1991). When word spread about a possible
early start to the project, a camp was set up in the clearing in the Pines to alert band
members through an ‘early warning system’; this was the start of the occupation on 10
March 1990. As word spread through Kanasatake, more and more people came to see
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 145

what was happening and then decided to stay. Signs were erected near the edge of the
golf course in French and English, saying ‘Are you aware that this is Mohawk land?’
(Pindera and York, 1991).
Although many Mohawks did not take the occupation seriously, others started to
spend more time at the camp each day as they returned from work or from school, and
some initiated a night shift armed with sticks, branches and axe handles for protection.
After Earth Day on 22 April 1990, when the Mohawks traditionally cleaned up the
forest area of garbage and debris, more and more Mohawks joined the camp. They
were armed and erected the Warrior Flag and set up barricades of cement blocks a
few metres back from Highway 344, and pushed a large fallen log across the northern
entrance of the Pines (Pinder and York, 1991).
In May, the Akwesasne war chief, Francis Boots, made his first trip to the Pines
in response to requests from a Longhouse chief’s son for a patrol vehicle, a supply of
two-way radios and money for gas and groceries (Pindera and York, 1991). Although
not everybody was in favour of being armed, eventually a consensus was reached for
resistance. On 7 May, a Mohawk representative was allowed to address the council of
Oka citizens; he pleaded for peace rather than confrontation, but the mayor insisted
there was no room for negotiations or discussions: the land belonged to the township.
Premier Robert Bourassa and the Quebec public security minister were approached by
the mayor, who asked them to send the police to dismantle the barricades. Bourassa
responded: ‘I don’t want to send anyone to play cowboy over the question of a golf
course’. The Provincial Minister of Aboriginal Affairs, John Ciaccia, was sent to
negotiate, but he was not given the power to significantly affect the outcome of the
discussions, beyond initiating a dialogue.
On 5 June, the municipality adopted a resolution: they proposed a moratorium
on construction, but only if the barricades were lifted. The Mohawks refused, and
Curtis Nelson of the Longhouse met with the Federal Minister of Indian Affairs, Tom
Siddon, in Parliament in Ottawa on 21 June. Nelson and other Mohawk representatives
intended to press their land claims, but they hoped for some ‘limited jurisdiction’ and
hence they refused to discuss the barricades, and left.33
The municipality decided to seek an injunction against the Mohawks; at their
meeting with Tom Siddon on 28 June, they compared the barricades to ‘a state of
anarchy’.34 Further, when the municipality sought the help of the Surete de Quebec on
10 July, their request read, in part:

. . . we ask you therefore to put a stop to the various criminal activities currently taking
place . . . and to arrest the authors of the crimes, so that we can proceed with establishing
the recreational use of the occupied land.35

On 11 July, the police decided to intervene and, although before that date ‘the use of
arms by First Nation people’ was unprecedented, this time an armed conflict developed.
The police had backed away from confrontation up to that time. When the police
attacked and opened fire, the warriors, who had been quietly joining the resistance for
the past several months retaliated and gunfire was exchanged. Corporal Marcel Lemay
of the police was fatally wounded and rushed to hospital. To this day, it is unclear who
hit him, as the recovered bullet could have come either from a police gun or from a
warrior’s gun. Eventually an inquest decided that it had been a Mohawk gun that had
146 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

killed him but, since the only evidence submitted and accepted at the inquest was that
of the police themselves, the result must remain uncertain (Pindera and York, 1991).
When a lawyer for the Kanesatake band in Montreal was told by the Mohawks that
the police were getting ready to attack again, he made ‘forty-five calls in four hours’
trying to reach someone with the power to stop the attacks. He finally reached Premier
Bourassa, who, when told of the police officer’s death, cancelled the second raid
(Pindera and York, 1991).
From 13 July, a new strategy was initiated: the police would not permit supplies,
food or medicine to enter the occupied lands, and even the Red Cross had to wait
24 hours before being permitted to enter. Indian women who attempted to go to the
town to shop for groceries were jeered at and jostled. On one occasion, the police
arrived barely in time to prevent a beating by an angry crowd. They had to leave without
the food they had purchased. A Human Rights Commission official attempted to
enter the roadblock to observe conditions at the camp, but he was refused, in glaring
violation of the Quebec Charter of Rights and Freedoms. The Indians’ survival was
in fact dependent on the cooperation of other bands who brought in food and other
necessities by canoe, under the cover of night and across the dense brush. Attempted
negotiations continued to be stalled and the Mohawks issued a revised list of demands
on 18 July. That list read:

Title to the lands slated for the golf club expansion and the rest of the historic Commons;
the withdrawal of all police forces from all Mohawk territories, including Ganienkeh
in New York State and Akwesasne, on the Quebec, Ontario and New York borders; a
forty-eight hours time period in which everyone leaving Kanesatake or Kahnawake
would not be subject to search or arrest; and the referral of all disputes arising from the
conflict to the World Court at the Hague. (Pindera and York, 1991)

Their demands also listed three ‘preconditions’ before further negotiations: free access
to food and other provisions; free access to clan mothers and spiritual advisors; and
the ‘posting of independent international observers in Kanesatake and Kahnawake
to monitor the actions of the police’ (Pindera and York, 1991). Eventually talks were
arranged in a Trappist monastery, la Trappe, at Oka, where the monks had been
supportive of the Mohawks and had sent food and supplies for the warriors and their
families. At this time, the Mohawks argued for their position on sovereignty. Loran
Thompson, a Mohawk representative, showed his Iroquois Confederation passport,
‘complete with Canadian customs stamps from occasions when (he) had crossed the
Canadian/American border’, hence he had proof that Canadian officials had accepted
them as a separate nation. The Mohawks also explained the major political principles
that govern them: ‘The Two Row Wampum’ Treaty (originally a treaty with the Dutch),
and the ‘Great Law of Peace’. The former supported peaceful but separate coexistence
with non-Indians, as a canoe and a boat can both travel down the same river, provided
each crew rowed their own boat only and did not attempt to straddle both. According
to the treaty, any Mohawk who would submit to any other government would be treated
as a traitor. The Great Law of Peace also supported separate sovereign status and non-
submission, and it recommended not bearing arms and preferring peace.
Unfortunately, although the Mohawks were perceived as patriots whose cause was
valid even by some of the soldiers who eventually replaced police at the barricades,
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 147

their situation placed them in ‘vicious circle’. If they were not recognized as a separate
nation, they could not bear arms in their own defence or in support of their territorial
claims. But without arms, some argue, ‘they will not be able to affirm their rights as a
nation’ (Pindera and York, 1991) or to protect disputed territories until negotiations
and peaceful talks could help rectify the problem.
At the Mohawks’ request, international observers were allowed into the Pines, and
it is very important to hear their comments:

‘The only persons who have treated me in a civilized way in this matter here in Canada
are the Mohawks’, said Finn Lying Hjem, a Norwegian Judge. ‘The army and the
police do nothing. It’s very degrading. . . degrading to us, and perhaps more degrading
to the government who can’t give us access’. (Pindera and York, 1991)

When Premier Bourassa asked the international observers to leave, they warned Quebec
and Canada of the ‘dangerous precedent’ that had been set by arbitrarily breaking off
talks. After many fruitless weeks of barricades and occupations, while the Mohawks’
case became the cause for all First Nations people, no progress was made on any of
their demands. Eventually the warriors, under pressure from the soldiers, decided to
‘disengage’ and accept the word of the Canadian government that their land claims
would be seriously considered. The warriors were taken off in police vehicles, each
with several plastic handcuffs, as they showed they could easily break one handcuff
with their bare hands. As a last gesture of defiance, a Mohawk warrior society flag was
smuggled onto the bus and waved at onlookers as the police took them away.
This, unfortunately, was not the end of either violence or racism. Many of the
warriors were badly beaten by the police during ‘interrogations’. Some were roughed
up as they were arrested and charged with ‘rioting and obstruction of justice’. As well
as Corporal Lemay, two Mohawks died. One, an elderly man, died of heart failure after
a stone-throwing mob attacked him at the outskirts of town; the other was poisoned by
tear gas and died later.
It is noteworthy that the Canadian Army (which eventually replaced the police) had
only been used once before in Canadian history against domestic rebels (in the 1970
Quebec Liberation Front crisis). The crisis at Oka was described in the Canadian press
as ‘the greatest ever witnessed in Quebec, Canada, even North America’ (Pindera and
York, 1991). Finally, more than ten months after the end of the conflict, disciplinary
hearings were held ‘to examine the conduct of eight senior officers of the Quebec
police, and of 31 junior officers, during the Oka crisis’, (no information is available
about the outcome of these hearings) and neither Quebec nor Canada showed any
desire to improve relations with the people of the First Nations of Canada, even after
the conflict, although the situation is substantially different today.

Environmental racism, environmental justice and terrorism:

The Canadian difference
In this section, I define and describe environmental racism in general, and relate the
specific position of the Indians of Canada’s First Nations to environmental racism so
that the difference in their case becomes clear. I also discuss the interconnectedness of
148 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

the land issue and the environmental questions in relation to territorial rights. I argue
that the position of the First Nations required them to take a stand and even to take
arms, and that the response of the provincial government could be fairly characterized
as state terrorism.

Environmental racism
Environmental racism can be defined as racism practised in and through the environment.
It refers to environmental injustice whereby, for example, toxic and hazardous waste
facilities and are frequently located in or near poor non-white communities. Speaking
of the US, Bullard (2001) says, ‘If a community is poor or inhabited largely by people of
colour there is a good chance that it receives less protection than a community that is
affluent or white.’ This is a recurring situation because in the US environmental policies
‘distribute the costs in a regressive pattern, while providing disproportionate benefits
for the educated and the wealthy’ (Bullard, 2001) in wealthy white neighbourhoods.
This disparity has been institutionalized and has lead to disregard for, and ultimately to
ecological violence perpetrated against, people and communities of colour.
Furthermore, although both class and race appear to be significant indicators of
the problems outlined, ‘the race correlation is even stronger than the class correlation’
(Bryant and Mohai, 1990; Gelobter, 1988; United Church of Christ Commission
for Racial Justice, 1987). What is particularly disturbing about this trend, is that the
ecological violence that is amply documented and which targets vulnerable and often
trapped minorities, is not a random act perpetrated by a few profit-seeking operations
that could perhaps be isolated and curtailed or eliminated, but that it is an accepted,
institutionalized form of ‘doing business’, taken for granted by most and ignored by
all.
This institutionalized pattern of discrimination is an anomaly in a world that is
committed to ‘political correctness’, at least officially and in the so-called ‘free world’
(Freedman and Narveson, 1994). For instance, both in Canada and the US, neither
government institutions nor corporate bodies would deliberately promote or practise
hiring in an openly discriminatory manner, or explicitly advocate segregation in
housing or education. Although both women and minorities often feel that covertly
discriminatory practices or ‘glass ceilings’ exist both in business and government, which
prevent them from achieving their full potential, still these difficulties are not openly
fostered by institutions.
Yet the practice of placing hazardous business operations such as dump sites and
other waste facilities in the ‘backyards’ of minority groups is practiced regularly, with
no apology. It is described as a purely economic decision with no consideration for
the unjust burdens it may place on individuals and affected communities who are
often too poor and weak to fight back (Gewirth, 1982; Rawls, 1999b). Similarly, when
the US Environmental Protection Agency uses its ‘superfund’ and other means to
ameliorate acute problems in white neighbourhoods long before it even acknowledges
or attempts to respond to environmental emergencies in black ones, then it appears
that environmental racism is practised almost by rote, with little fear of retribution.
Bullard (1994) argues that:
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 149

The current environmental protection paradigm has institutionalized unequal enforce-

ment; traded human health for profit, placed the burden of proof on the ‘victims’ rather
than on the polluting industry; legitimized human exposure to harmful substances;
promoted ‘risky’ technologies such as incinerators; exploited the vulnerability of
communities of colour.

The same practice of ecological destruction happens overseas, by the countries of the
North and the West in relation to the countries of the South and East. Toxic dumping
and other unfair burdens are routinely imposed on countries whose leaders are often all
too willing to trade off the safety of their uninformed and unconsenting disempowered
citizens for Western hard currencies. Those who may respond that no racism is involved,
as the hazardous transactions simply reflect economic advantage and ‘good business
sense’, ignore the fact that most often the perpetuation of brownfields is founded on
various forms of earlier segregation and racism.
In the global marketplace, this approach has been termed the practice of ‘isolationist
strategy’ (Shrader-Frechette, 1991). In this case, the restraints and controls that busi-
nesses may employ in their home countries are not carried on in interactions with
countries in the South. Relying on several arguments such as ‘the countervailing benefit
argument’, ‘the consent argument’, ‘the social progress argument’ and ‘the reasonable
possibility argument’, the isolationist strategy replicates many segregation arguments
and thus cannot be acceptable from the moral standpoint (Shrader-Frechette, 1991).
Unfortunately, often poor communities cannot fight off the harm that threatens
them insidiously through environmental contamination. When they actually try to do
so, however, especially in present times and in the better-educated and better-organized
countries of North America, they may reach a favourable outcome. For instance, in a
recent case in Titusville, Alabama, a community group decided to fight Browning-Ferris
Industries, who intended to site a waste-transfer station in their neighbourhood. The
area was already legally the site of ‘heavy industry’, but garbage was to be excluded,
according to the ownership ordinance. It was also one of the few areas where African
Americans had been able to buy property in the city of Birmingham, so that the whole
community was and is one of colour. In this case, the community was exposed to a
lengthy legal battle, and even police violence, as they demonstrated in the park between
Birmingham’s City Hall and its Civil Rights Institute. In the end, the city won against
the company, and the infamous facility, already built, stood empty as late as November
1994, when I visited at the invitation of the community leader, Whitly Battle, and the
lawyer, David Sullivan. In this case, the perpetuation of brownfields in one specific area
indicates the institutionalized intent to burden disproportionately citizens of colour
with society’s hazards, without consent or compensation (Greenpeace, 1995; Westra
and Lawson, 2001).
Examples of this kind of problem could be multiplied, although citizens’ victories
are rare indeed. From toxins in Altgeld Gardens in Chicago (Gaylord and Bell,
2001), to radioactive waste in Louisiana (Wigley and Shrader-Frechette, 2001) and
predominantly in the southern US (Bullard, 1994), the story can be repeated again
and again with slight variations, and with the black communities regularly the losers.
But it is not only the urban minorities that are so targeted; their rural counterparts fare
no better. ‘Geographic equity’ does not exist in North America any more than it does
in countries in the South.
150 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Environmental racism and First Nations:

Human and religious rights to self-defence
Recently there has been growing support for the defence of minority groups against
the ecological violence perpetrated against them. The ‘First National People of Colour
Environmental Leadership Summit’ was held in October 1991 in Washington DC. It
united many grass-roots groups and inspired them to seek governmental and national
support for strategies to eliminate the rampant environmental racism practised
against them (Bullard, 1994–1995). In this section, I argue that the case of Canadian
First Nations is quite different in several senses from what has been described above,
although it remains environmental racism. Their case is unique because health and
safety are not their only concern. Natives require high levels of environmental quality
to meet both physical and spiritual needs. They need the land they inhabit to be free
of toxic and chemical hazards so that various species of animal and fish, which are part
of their traditional diet, do not suffer or disappear; but they also need spiritually to be
able to live in a way that is consonant with their world view. This is grounded on respect
for all living things with whom they share a habitat.
It can also be argued that the native traditional world view is so much a part of
their deeply held values and beliefs that it can be considered a religion common to
most Indians in North America. Quite aside from the issue of status as a separate nation
discussed above, Mohawks respect for their own ecologically inspired lifestyle should be
treated as a constitutionally protected right to freedom of religion under the Canadian
Charter of Rights and Freedoms. In fact, the ‘Great Law of Peace’, which forms the
basis for the Oka warriors’ ideology, does not separate ‘church’ and ‘state’: ‘it provides
a complex combination of spiritual and political rules. . . It is the rule book of an entire
way of life. . . it forms the thesis of a modern theocracy’ (Pindera and York, 1991).
Hence the rights of the Mohawks to their traditional ways can be supported on the
basis of freedom of religion, even before considering their separate national status.
Unlike other minorities, these religious rights and freedoms are inseparable from
environmental protection. Finally, this approach to ecological protection for large areas
of wilderness is necessary for global sustainability, and the Indian traditional way is close
to the mandate to ‘restore ecosystem integrity’, which forms the basis of Environment
Canada’s ‘vision’ statement and a host of other regulations and mission statements
around the globe (Westra, 1994a; 1995).
In sum, ecological concern is everyone’s responsibility, but traditional American
Indian ‘attitudes’ towards nature appear to be particularly apt to support an environ-
mental ethic (Callicot, 1989; Rabb, 1995). These attitudes also provide yet another
reason why the Indians ought to have been permitted the peaceful enjoyment of their
territory, and why their wishes in relation to the land ought to have been respected.
The priests at St Sulpice were twice granted lands on behalf of the Indians, with express
instructions to administer them of their behalf. In fact their second request explicitly
cited the Indians’ needs and lifestyle as the basis for requesting larger areas from the
King of France. The priests’ needs or their economic advantage were never cited. Their
role was not that of owners, but of caretakers and managers of the granted territories.
Hence it would be unfair to penalize the Mohawks for the repeated sale of lands that
were meant for their sole use and enjoyment. The lands were exploited, mismanaged
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 151

and sold inappropriately and illegally, and in clear violation of the mandate from either
the King of France or that of England (Pindera and York, 1991).

Land, environment, territorial rights and native identity

I have argued that the police of Quebec, federal government officials, and the residents
and bureaucrats of Oka, can all be ‘charged’ with environmental racism. To prove this, it
is not necessary to demonstrate specific intent on the part of any one person or group, as
environmental racism may be perpetrated through carelessness, self-interest or greed. It
is sufficient to show that the practice is accepted and even institutionalized in a way that
does ecological violence to a specific community or group of colour. I have also argued
that in this case the Indians’ historical and legal claim to independent nationhood, as
well as their traditional lifestyle, culture and religious beliefs, all contribute significantly
to their right to take a stance against environmental racism. The same combination
of factors renders their resistance, their unshakable position and even their bearing
arms potentially justifiable on moral grounds. Moreover, if their position is morally
defensible, then their activities should not be viewed as crimes against the law, but as
self-defence, conscientious objections, and affirmations of religious and cultural self-
identity. That in turn makes the actions of both police and government in support of
ecological violence and repression possible forms of state terrorism. It is this particular
situation and combination that makes environmental racism distinctly Canadian in this
case, as I argue below.
As the cultural self-identity argument is based on the understanding of the Indians
as a people, one might ask, what makes a ‘people’, other than law or custom? Do citizens
involuntarily form associations, or is it their choice that makes them a community
or a nation? Is it the case that common allegiance to a state constitutes a nation or
people? On what grounds, then is national identity to be founded? According to Henry
Sidgwick (1878), legitimate government rests on the consent of the governed, hence the
‘voluntarist’ model of what constitutes a nation, ‘derives from the rights of individuals
to associate politically as they choose’ (Gilbert, 1994). But it is hard to understand
what makes a specific association worthy of recognition, other than the exercise of
the citizens’ collective will, as people willingly form associations that may be less than
worthy of respect (for example, the Ku Klux Klan). Another approach may be to appeal
to a national character, emphasizing shared characteristics that might constitute a
national identity. Gilbert (1994) terms this ‘the ethnic model of nationality’. But to
view nations as species of ‘natural kinds’, is to subscribe to racist theory with the pitfalls
we have all learned in Nazi and fascist times (Gilbert, 1994). But there are other, better
ways of conceiving of national identity: ‘culturalism’, for example, provides a useful
model. This approach cannot rely exclusively on religion, which usually transcends
national borders and hence language; common practices and aspirations, possibly even
territory are required as well (Gilbert, 1994). Even someone’s upbringing is constitutive
of the national identity of individuals. Wil Kymlicka (1991) also discusses the parallel
conception of ‘communitarianism’, that is, viewing nations as groups living a common
life in accordance with their own rules, hence this ‘community’ view or ‘cultural view’
(Gilbert, 1994), is also relevant to establish national identity. As Kymlicka (1991) points
out, ‘cultural membership affects our very sense of personal identity and capacity’.
152 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

First Nations people in general and Mohawks at Oka in particular can claim national
identity, based on what Gilbert (1994) terms ‘culturalism’, as well as their biological
heritage. Kymlicka (1991) speaks of a ‘cultural heritage’ for all Indians in Canada.
This supports the Indians’ claim that they are a ‘people’, and that they can therefore
demand to be treated as such:

‘All peoples have the right to self-determination’ declares the first article of the United
Nations International Covenant on human rights. That is to say, they have the right
to independent statehood. (Gilbert, 1994)

If this is the case, then certain other rights follow from it, for example, ‘their right to
throw off alien occupation, colonial status or absorption into some other state’ (Gilbert,
1994). Furthermore, at Oka it seems that not only were the Mohawks treated unfairly,
so that some suffered harm as the cost of increased benefits to others (an immoral
position); they were also treated unjustly (an illegal action), because they were wronged
through discrimination:

Discrimination mistreats individuals because they are part of a certain group, so that
the primary object of mistreatment is the group of which they are a part. (Gilbert,
1994)

But Gilbert’s (1994) discussion, which is primarily about possible explanation and
justification for terrorism in certain circumstances, is intended to deal with the situation
between Israel and Palestine and that between Ireland and England. Hence, it cannot
apply precisely to our case, although, as we have seen, many parallels can be drawn.
What is required then, is to understand the specific way in which racism and
discrimination is practised against Indians in Canada that distinguishes their situation
completely from that of African Americans in the US and minorities in countries in
the South. As we argued earlier, the intent of the Executive Order by which President
Clinton established an Office of Environmental Justice, was to eventually eliminate all
practices that excluded black communities from the environmental protection and
concern that favoured white communities, granting them not only defence against
environmental threats, to some extent, but also redress in the case of problems or acci-
dents, both of which were not equally available to communities of colour.
African Americans want to be included within the larger community. They want to
avoid the de facto segregation to which exclusionary practices condemn them. They can
argue that in housing, job seeking and schooling, segregation is not legally permitted at
this time; thus, as I suggested earlier, environmental racism constitutes a ‘last frontier’,
or the only area within which racism is not only tolerated, but neither criticized nor
discouraged or punished as such by the law.
The interest in avoiding this form of racism is equally as true for Indians as it
is for blacks. But the forms of ‘discrimination’, aside from those which involve the
environment, are quite different for Canadian Indians; they are in fact opposite to
those that affect blacks. Any ‘colour-blind’ interpretations of the law are inappropriate
for Indians; it is integration that is viewed as a ‘badge of inferiority’ by Indians, not
segregation.
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 153

Hence, simply granting Indians the same rights as all Canadians is not only
insufficient, but essentially wrong. Kymlicka (1991) writes that ‘The viability of Indian
communities depends on coercively restricting the mobility, residence, and political
right of both Indians and non-Indians’. It is therefore a necessary component of the
Indians’ rights and liberties to deny non-Indians the right to purchase or reside on
Indian lands. A fortiori then, the right to adversely affect and pollute or otherwise
ecologically affect these lands should be equally impermissible. Hence the activities of
non-Indians in lands adjacent to Indian lands, must be consonant with a ‘buffer zone’
(as it is for instance in Man and the Biosphere areas surrounding a wild ‘core’ zone (see
Westra, 1995).
In the concluding section, I defend the Mohawks’ actions as morally defensible
and discuss the government’s interventions as motivated by environmental racism
supported by terrorist attacks.

Conclusion: National identity, environmental racism and state terrorism

On the account presented in the last section, the cause of the Mohawks at Oka can be
defended as just on moral grounds; environmentally and culturally they were clearly
under attack. Those responsible for the circumstances in which they found themselves
were guilty not only of racism but of environmental racism. The final question that
must be asked at this point is whether the Mohawks were justified in taking up arms,
and whether the police and the army were justified in the way they handled the warriors
after the ‘disengagement’. The Mohawks are not the first or even the only people who
have resorted to civil resistance and even violence in defence of the environment. What
makes their acts different and in fact unique, has been described above.
In contrast, those chaining themselves to trees at Clayoquot Sound in British
Columbia came from all over Canada, and could have in fact come from anywhere in
the world in defence of the common cause: protecting the environment. The Indians
also shared this generalized concern, as I have shown, through their concern for the
forest in relation to the township. The Mohawks were also motivated by other, specific
reasons. These were: first, the way their identity as a people is dependent on a certain
place, so that any attack on either its size or its environmental quality and integrity
must be construed as an attack on their identity; and second, the spiritual and religious
components of their need for the land, which go beyond our own acknowledged need
for wild places for various reasons (Westra, 1994a).
Hence, the Indians’ defence goes beyond ecological concern in a general sense.
It becomes a case of self-preservation. That makes bearing arms for that purpose more
than a simple criminal act, as some claimed. The paradigm or model, according to
which the Mohawks activities must be viewed, is not that of breaking the law or that
of committing crimes. The closest model is that which fits other bi-national territorial
disputes, such as those between Ireland and Britain, or between Israel and Palestine,
where, as Gilbert (1994) has argued, border disputes are not open to democratic
decisions based on votes. Neither Israelis nor Palestinians can democratically decide
on the location of a specific border affecting their two nations. The only avenues open
to these national groups, as to the Irish, in their territorial dispute, is either to declare
war, or to attack or respond to violence through terrorist attacks outside a formal war
situation.
154 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Therefore these acts cannot be simply defined as ‘random violence’ or as crime,

because significant differences exist. The perpetrators announce their intention to
stand their ground or to fight, and they publicize their political motives explicitly, in
contrast with the hidden and furtive activities of criminals. Hence, the Mohawks’ use of
force must be viewed, and perhaps justified, in terms of terrorism, not random violence.
It is important to note that they resisted and defended, but did not launch violent
attacks beyond their own territories. In fact, all their interactions and negotiations with
the representatives of the Canadian government or the township were characterized
by reasoned arguments, the repetition of their claims and the reasons for those claims,
coupled with the sincere desire to achieve and maintain peace. They bore arms for self-
defence, not attack.
I have argued elsewhere (Westra, 1990) that often even terrorist aggressive violence
may be defensible in principle, though not in its practical expression, and I have called
defensible violence of this sort, a form of ‘whistle-blowing’, as it calls attention to some
grave injustice. The extent of the injustice and the discriminatory treatment, neither
of which were random occurrences but rather formed a historical pattern on the part
of the Canadians, has been discussed above. Their perpetration justifies, I believe,
resistance on grounds of self-determination. Their resistance then becomes analogous
to that intended to throw off foreign occupation (Gilbert, 1994).
The events may be described, using Gilbert’s felicitous expression, as an ‘ethical
revolution’ (1994). Such a revolution is typically based on a ‘different conception of
the state and the community’; it is an ‘inspirational aspect of violent change’, which
might be of two kinds: ‘ethically conservative’, or ‘ethically radical’ (Gilbert, 1994). The
former appeals to values that the resisting group shares with the majority, including its
opponents, but which are not properly implemented. The latter, ‘makes its case on the
basis of a change in the values themselves’ (Gilbert, 1994), and is persuasive because it
demands a change of values. The Mohawks’ case seems to fit the second model. They
can be seen as ‘ethical revolutionaries’, as people who ‘seek to change the criteria for
membership of the political community’ (Gilbert, 1994).
They were criticized for not using democratic means to state their grievances
and get redress, but their grievances were not of the sort that can easily be settled
by democratic means. This is because the very core of their complaint was that the
Mohawk nations was not viewed as an equal, viable political community, responsible for
decisions affecting their people and their land. It is here that the parallel with terrorism
becomes even clearer.
International terrorism is most often concerned with territory and political equal-
ity. But claims to self-determination should be ‘made within existing borders’, an
impossibility when the very extent of the territory within those borders is at issue (as
argued earlier), and when the dissenting and protesting group is in a clear minority
position. But in that case, the group seeking redress that is, as in this case, at the same
time environmental, territorial and concerned with national independence, has no
democratic recourse, no peaceful voice through which to make its claim other than
perhaps attempting a ‘sit-in’ to gain national and international attention. It seems as
though it must resist, even while seeking peace. And if its arguments and claims are not
heard and respected, its only recourse is to resist attack and bear arms. Note that they
were indeed resisting peacefully, and only turned violent when violently attacked.
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 155

What is the state to do in response to such a position? Should it respond with force
and attack? But then can we not charge it with hypocrisy and view its actions as open
to a tu quoque argument (Gilbert, 1994). It is not sufficient, as we have seen, to say that
government force must intervene to ‘punish crime’, as the Indians are not breaking
a law to which they are legitimately subjected. On the contrary, their claim is that law
is not their law, that state is not their state, and its values are not theirs. In this, the
Canadian constitution appears to support their position. When weighing the forms of
violence (that is the Indians’ and the state’s), there seems to be little cause to view the
former as ‘wrong’, the latter as ‘right’, from the moral standpoint.
The stronger the moral case for the Mohawks, the weaker, morally, the case for the
‘legal’ repression and violence they had to endure. While the reasons for supporting
the Indians’ position at Oka are many and defensible, only one possible reason can be
given in support of the army’s intervention (Gilbert, 1994). The state has the authority
to enforce the law and to punish crimes. But is the state’s violence against those who are
not subject to its laws (or whose major claim for resistance is that they are not), morally
better than their opponents’ resistance? When we compare even terrorists’ action
‘seeking to gain power, and those of the agents of the State in seeking to retain it’,
there may be no moral reason to term the former ‘criminal’ and the latter ‘punishment
of crime’ (Gilbert, 1994). This is particularly the case, when there was no violent attack
on the part of the Mohawks, and the main reason for their resistance was to protest the
assumption that they were in fact subject to those laws.
It is also clear that the other alternative – that is, the presumption that while the
Mohawks belonged to a separate, sovereign nation, Canada could bear arms against
them as a form of warfare – is not appropriate. Rules of war demand that if violence is
to be part of a just war, then the war should first be openly declared. This is the reason
why terrorism is not precisely warfare, whether it is practised by dissenting groups or by
the state itself. State terrorism, therefore, refers to violent responses to terrorism on the
part of a government. It is often the alternative preferred to simply treating terrorists
as criminals (that is, as innocent until proven guilty, using restraints but not violence
against them, and so on). Although a violent response is often employed, this use of
state power is hard to justify as anything other than retaliation.
State terrorism involves warlike intentions that are impeded by constraints from
issuing an open war. These constraints are characteristically political rather than
military, reflecting political inhibition from resorting to war (Gilbert, 1994). However
Gilbert adds that normally ‘internal State terrorism’ does not have the ‘warlike aims’ of
‘acquisition and control of territory’. It seems that the Oka situation instead manifested
precisely this aim; perhaps then it represents an atypical form of state terrorism as it
has the added component while manifesting many of the usual ones as well. As Gilbert
outlines and defines state terrorism, the provincial government’s intervention through
the police and, particularly, through the army appears to fit under this heading. The
state, of course, purports to be operating ‘within the framework of the law, which it
presents itself as upholding’ (Gilbert, 1994). But if its legal framework is ‘unable to
resist terrorism’, the state may simply ‘resort to the covertly warlike operations which
constitute state terrorism’ (Gilbert, 1994). Yet, lacking an openly declared war, ‘the
ordinary rules of civil life’ should guide the state’s acceptable intervention. Armed
attacks on dissenting citizens of another country (or even of one’s own), or beatings
as part of ‘interrogation’ or ‘capture’, are not the way the state ought to deal even
156 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

with hardened criminals or serial killers, before or after sentencing. Hence the state
denounced the Mohawks as criminals during the crisis but only belatedly treated them
as such after their cases came to court. Throughout the crisis, a state of war appeared to
prevail, giving additional credence to the Mohawks’ claim to sovereignty and national
independence, something that is already legally true in Canada for people of the First
Nation in general.
It is clear that the federal government cannot have it both ways: either their attack
on resisting Mohawks is war – in which case a proper declaration of war, the recognition
of their independent nationhood and adherence to the rules of war are mandatory – or
it is not. Further, over and above these formal requirements, from the moral standpoint
only a war of self-defence (from an actual attack, not from dissent) may be viewed as
a just war (Westra, 1990). Or we might accept the other alternative, that the state is
viewing their resistance as criminal. It has been shown that this does not appropriately
describe the government’s response. Unless a criminal is actually attacking a police
officer, for instance, drawing fire against him is not a permissible, legal response. As
explained earlier, the Mohawks were standing their ground, not even fleeing from the
law; and ‘if terrorists are denied due process of law, the same acts are criminal’ (Gilbert,
1994).
To start shooting prior to trial and conviction of specific individuals, is to deny
them due process. Had they even been convicted criminals or killers, retaliation in kind
is not appropriate, particularly in a country with no capital punishment. And, it must
be kept in mind, no one was ever found guilty of murder. Those who were considered
the ‘worst offenders’ were perhaps Ronald Cross (nicknamed ‘lasagna’) and Gordon
Lazore. Helene Sevigny (1993) reports on the actual sentencing:

Sentence ‘Sa Majesté la Reine vs. Ronald Cross et Gordon Lazore’ Province of Quebec,
District of Terrebonne, No. 700-01-000009-913; Judge B.J. Greensberg, Superior
Court, Criminal Division, St Jerome, 19 February 1992. The two were found guilty
of half of their charges, primarily attacks with ‘arms’ such as baseball bats. The case
was appealed on 20 February 1992. On 3 July 1992, the other 39 Mohawks that
were originally taken from the barricades and detained, were acquitted. (author’s
translation)

The Mohawks’ well-founded message and their fight against racism in all its forms,
including its environmental aspect, has been around for a long time, as has the Indians’
effort to have their cause and their reasons heard. Gilles Boileau’s (1991) indictment of
the ‘lords wearing cassocks’ (‘les seigneurs en soutane’), presents a detailed historical
account of the difficulties the Mohawks had to endure:

The ‘Messieurs’ and all others must recognize that the Mohawks have a right to ‘their
dignity and our respect,’ and it is high time that Oka should be recognized primarily
as Indian land.

In conclusion, the Oka case combines several unique features specific to the Canadian
political scene. It manifests aspects of environmental racism, as the ecologically
inappropriate choices of a non-Indian majority were to be imposed on the Mohawks
without regard for their traditional lifestyles. At the same time, this imposition infringed
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 157

their right to self-determination and their constitutional status as a First Nation. Finally,
the case shows the inappropriate use of force and the employment of state terrorism
in response to the Mohawks’ position, which, I have argued, is defensible on moral,
environmental and legal grounds.
It is clear that not everyone will readily agree to the strong, land-based obligation
here proposed, but many do defend the ultimate importance of unextinguished
aboriginal title (Asch and Zlotkin, 1997). The peoples in original Indian societies were
strong on sharing, cooperation and good faith, all aspects missing from the dealings
involving European newcomers.
Treaties that require the extinguishment of aboriginal rights cannot be based on:
first, true collaboration; because, second, they are incompatible with the understanding
of aboriginal rights in section 35 of the Constitution Act, 1982; third, they are incom-
patible with the Crown’s fiduciary duty; fourth, they are incompatible with international
human rights instruments and are not consistent with the prohibition against racial
discrimination; fifth, asking aboriginal peoples to give up their rights would be
‘equivalent to asking Canadians to give up their Canadian citizenship’; and sixth, these
policies can only be viewed as ethnocentric (Asch and Zlotkin, 1997).
Jim Antoine, Chief of Fort Simpson Dene Band puts it well:

We are a real part of the land. Our roots are connected into the land. But if you want
to extinguish your aboriginal rights and title to it, then you are cutting off those roots.
You are cutting us off from the land, and we are floating.36

This paragraph is consistent with the major premises of this work; that is, the primacy
of the right to biological/ecological integrity of indigenous peoples and First Nations,
and the role its absence plays in furthering the ongoing elimination of such people, as
peoples, even without a clear genocidal intent on the part of the perpetrators.

CONCLUSIONS

Part Two discussed a number of representative cases, all of which support the main
contention of this work: the basic need for the protection of both ecological and
biological integrity, and the recognition of its lack as a crime resulting in genocide
for the affected aboriginal communities. The contrast between the complaints (the
‘facts’ in the court cases) of indigenous groups worldwide and the court decisions
responding to those complaints repeats the argument of this work. In general, neither
the quantitative nor the qualitative aspects of indigenous territories are respected, and
the resulting biological and cultural harms to those communities are extensive.
The courts continue to ignore the full import of environmental harms to indigenous
peoples despite the laudable 2002 initiative of Justice Arthur Chaskalson, of South
Africa (and UNEP), to initiate the ‘Judges Portal’, intended to promote environmental
knowledge and understanding for all judges globally, so that they might better be able
to decide on the cases brought before them.
Today, science in general, and public health and epidemiology in particular, have
forged ahead of anything found in domestic or international instruments, upon which
158 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

judges might depend for the cases they are asked to decide. When legal scholars of
impeccable reputation are called as expert witnesses, they too are hampered by the
limited array and reach of international environmental and human rights instruments.
However, those who would be able to speak with an authoritative voice, and as totally
independent, are the scientists of the WHO, and these experts are, unfortunately, never
called to testify. We shall return to this lacuna in the final chapter of this work.
In the next part, I confront the claim of genocide here advanced head-on, both in
its meaning and in the possibility of applying it in the jurisprudence, before turning to
a paradigm case, that of the Arctic people of Nunavut in Canada, where several aspects
of genocide emerge clearly.

NOTES

1 Report of the Royal Commission on Aboriginal Peoples: Looking Forward Looking Back (Vol. 1), 1996,
RCAP, www.ainc-inac.gc.ca/ch/rcap/sg/sg28_e.html#99, ‘Residential Schools’
2 Delgamuukw v. British Columbia [1998] l CNLR 14, 11 December 1997, Lamer C. J. (Cory,
MacLachlin and Major J. J. Concurring) para. 21.
3 ibid.
4 ibid.
5 Royal Proclamations, 7 October 1763, (1985 RSC Appendix II, No. 1, in part.
6 Reorganized in 1984 in Guerin v. Canada [1984] 2 SCR 335.
7 Sparrow [1990] l SCR. See also Hogg (2005, pp621–621).
8 ibid.
9 ibid.
10 Halfway River First Nation v. British Columbia (Minister of Forests) (1999) 178 DLR (4th) 666
716; see Imai, 2001, p. 18.
11 R. v. Gladstone [1996] 2 SCR 723; R. v. can der Peet [1996] 2 SCR 507.
12 Delgamuukw v. British Columbia [1998] 1 CNLR 14, 1997: Per La Forest and L’ Heureux-Dube’
J.J.: ‘Aboriginal title is based on the continuous occupation and use of the land as part of the
Aboriginal peoples’ traditional way of life.’
13 ibid, emphasis added; however, in R. v. Marshall and R. v. Bernard (2005), The Supreme
Court of Canada seems to pull back from this position.
14 ibid (Delgamuukw v. British Columbia).
15 Marshall v. The Queen [1993] 3 SCR 456; infra Part I A.2.c.
16 R. v. Van der Peet, 137 DLR 4th 289, 9 WWR1 (Can. 1996); R. v. Gladstone , 137 DLR 4th 648,9
WWR1 1996.
17 Van der Peet, 137 DLR 4th 289; see also Pamajewon, [1996] SCC.
18 Van der Peet, para. 40.
19 Delgamuukw v. British Columbia [1998] 1 CNLR 14, 11 December 1997; R. v. Sparrow [1990] 1
SCR 1075.
20 Delgamuukw v. B.C. [1998] 1 CNLR 14, para. 21.
21 Guerin v. Canada [1984] 2 SCR 335.
22 Clarice Gaylord was Bill Clinton’s first appointee to the EPA office of Environmental Justice,
by Executive Order No. 12898 in 1992, to redress inequities in the way EPA addressed
environmental harms in white communities and communities of colour.
23 See the Toyama Itai-Itai case, 635 Hanji 17 (Toyama District Court, 30 June 1971); the Niigata
Minamata case, 642 Hanji (Niigata District Court, 29 September 1971); the Yokkaichi Asthma
case, 672 Hanji 30 (Tsu District Court, Yokkaichi Branch, 24 July 1972); the Kumamoto
 FIRST NATIONS OF CANADA & THE LEGAL & ILLEGAL ATTACKS ON THEIR EXISTENCE 159

Minimata Disease case, 696 Hanji 15 Kumamoto District Court, 20 March 1973; reprinted in
J. Gresser, K. Fugikura and A. Morishima, Environmental Law in Japan, 1981.
24 Hummel, J. H. W. from links; see also the Madison Declaration on Mercury Pollution, www.
unbc.ca/assets/media/2007/03_march/madison_declarationon_mercury_pollution_with_
non-technical_summary.pdf
25 See also Mr Justice Hall’s ‘Affidavit’ before the Supreme Court of Ontario, NO. 14716/77,
no. 13.
26 ibid.
27 Adapted from Wellington et al (1997) with permission from Broadview Press, 1997.
28 Fifth Report of the Standing Committee on Aboriginal Affairs, House of Commons, Canada, May
1991.
29 ibid.
30 ibid.
31 ibid.
32 Corinthe v. Seminary of St. Sulpice.
33 ibid.
34 ibid.
35 ibid.
36 Transcript of the Public Hearing of the Royal Commission on Aboriginal Peoples, Fort
Simpson, Northwest Territories, 26 May 1992.
 PART THREE

Justifying Genocide: Principles and Reality

 CHAPTER 7

Genocide and Eco-crime: The Interface

INTRODUCTION

Suppose that you are wandering across the tundra and you find an infant all alone in
the snow. The infant is incapable of discourse. And there is no one to conduct discourse
for her. And yet she has the same human rights as everyone who is capable of discourse.
There, in the snow, whether she is in Canada in 2006 or Antarctica in 2000 BC, the
infant has all the human rights that anyone has in any community with any social
conventions. These claims run contrary to much rights talk. (Endicott, 2005)

The previous chapters have reviewed some of the law relating to the interaction be-
tween indigenous peoples and MNCs, and the states that facilitate and most often
support their activities. Given the gravity of the harms perpetrated against indigenous
populations, we ought to set aside for a moment legal conventions and instruments, and
ask first the basic questions: do they have human rights, whether or not they can argue
for these rights and regardless of their locations and the social conventions present in
those locations? Do they have the right to life? To the conditions that support life? To
bodily integrity?
The ‘infant in the snow’ appears to be a case where neither discourses nor con-
ventions are needed to ensure full human rights, and corresponding absolute obligations
to whoever might happen upon her: truly obligation erga omnes, simply based on her
humanity. Hence the sort of attacks described in the case law we have discussed are
based upon that position: indigenous peoples’ rights are and should be non-derogable,
and the continued attacks on their lives, health and existence as peoples ought to be
treated like the international crime that it is, genocide

INDIGENOUS PEOPLES
AND THE CRIME OF GENOCIDE

In 1944, Lemkin provided a rich and complete definition of genocide:

Genocide is directed against a national group as an entity, and the actions involved
are directed against individuals, not in their individual capacity but as members of
the national group.
164 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

He also distinguished between different forms of genocide. Based upon his work,
Pentassuglia (2002) specifies various forms:

. . . taking examples from Nazi practice, ‘political genocide’, ‘social genocide’, ‘cultural
genocide’, ‘economic genocide’, ‘biological genocide’, ‘physical genocide’, ‘religious
genocide’ and ‘moral genocide’.

Hence indigenous people do not only possess the right to life individually, but they do
so in an extended, richer sense, as a group as well. In fact, the biological and physical
integrity of groups is clearly dependent on both their individual and communal
dimensions. Genocide is a primary example of an obligation erga omnes.1 After reviewing
the ATCA jurisprudence, the argument to elevate attacks on indigenous peoples, singly
and collectively, from torts to international crime should not be too hard, as each of
the cases discussed contains realistic, often first-person accounts of the material facts
involved. In some cases, the non-state actors perpetrating the crimes attempt to evade
responsibility by claiming that international law only applies to states, hence it cannot
touch them. But William Schabas (2001) reminds us that:

. . . at the end of the Rome Conference in July 1998, the Financial Times, the
prestigious British business daily, published an article warning commercial lawyers
that the treaty’s accomplished liability provisions ‘could create international criminal
liability for employees, officers and directors of corporations’.2

In this chapter, I consider those aspects of the crime of genocide that are most relevant
to indigenous peoples, starting with the components of the crime itself.

Genocide: The question of intent

From a legal policy perspective, it is especially noteworthy that the magnitude of

problems of traditional groups all over the world . . . still awaits a comprehensive treaty
response, and many of them still struggle for recognition and appropriate protection at
home. (Pentassuglia, 2002)

One of the possible causes of this anomaly lies in the economic/trade orientation
of most legal instruments that presently deal with the issue, and with the powerful
interests that militate against a serious consideration of indigenous peoples’ rights.
Another possible answer, albeit a partial one, may be found in the ‘intent’ requirement
that forms an integral part of the crime of genocide, cited in almost every one of the
cases discussed in Chapters 4 and 5.
The problem of mens rea in general in international crime was introduced in
Chapter 5. Mens rea is basic to all serious crimes, and it is certainly required for the act
of genocide. In that earlier discussion, the focus was on the responsibility of both states
and corporations. The starting point now should be the definition of mens rea in Article
30(2) and (3) of the Rome Statute of the International Criminal Court:
 GENOCIDE & ECO-CRIME 165

2. For the purpose of this article, a person has intent here:

(a) In relation to conduct, that person means to engage in the conduct.
(b) In relation to a consequence, that person means to cause that consequence or is
aware that it will occur in the ordinary course of events.
3. For the purpose of this article, ‘Knowledge’ means awareness that a circumstance
exists, or that a consequence will occur in the ordinary course of events. ‘Know’ and
‘knowingly’ shall be construed accordingly.3

In addition, the Chapeau of Article II (Physical and Biological Genocide) of the

Genocide Convention emphasizes the required ‘intent’: the proscribed acts must be
deliberate, and they have to be ‘committed with the intent to destroy a national, racial,
religious or political group, on grounds of the national or racial origin, religious belief,
political opinion of its members’. That said, it remains to consider the meaning of
‘intent’, ‘knowledge’, ‘awareness’ and related concepts, in the context of the cases we
have discussed in the previous two chapters.
The first problem is that the clear statement of intent required by the definition
of genocide is hard to prove, as Bullard (2001) has argued in his indictment of
environmental racism. Yet it is an unavoidable component of genocide. Schabas (2000)
adds: ‘But in cases that cannot be described as purely accidental, the accused’s mental
state may be far from totally innocent and yet not egregiously evil. To quote Racine
(1946): “[a]insi que la vertu, le crime a ses degrés”.’
And murder itself has many categories that may render it more or less heinous, as
they are considered at the sentencing stage. For genocide, Article V of the convention
imposes an obligation to ‘provide effective penalties for persons guilty of genocide
or any of the other acts enumerated in Article III’.4 Because ‘international law now
frowns upon capital punishment’ (Schabas, 1997), the maximum sentence that can be
imposed is life imprisonment (Schabas, 2000), and it is clearly impossible to impose
that penalty on legal individuals who, with the complicity of states, are the most likely
to perpetrate genocide upon indigenous peoples in peacetime.
In fact, one of the most salient characteristics of genocide is that it cannot be
committed by a single (natural) individual. It requires a large-scale operation and
planning as Lemkin (1944) also argued. Case law also speaks of ‘widespread and
systematic’ crimes,5 or of involving a ‘plan or policy’.6 Hence, although the hatred or at
least the deliberate intent to destroy or eliminate a group (in part or as a whole) may
be hard to prove, the ‘planning’ aspect of mens rea must be in place, as it is for ‘crimes
against humanity’.7 Unlike murder (a crime that may not be premeditated but that
could occur spontaneously in a variety of circumstances), for genocide, a widespread
‘systematic policy or practice’ must exist.8 And in that case, it is hard to see how it can
be argued that the main element of the crime is not present. It is certainly present
in the corporate crimes we have discussed in the review of ATCA jurisprudence; at
the very least, those acts demonstrate recklessness as to the result of those acts, or
‘wilful blindness’, as I have argued elsewhere in that regard (Westra, 2004a). Glanville
Williams (1961) puts it best, ‘The rule that willful blindness is equivalent to knowledge is
essential and is found throughout criminal law’. It is telling that even when the specific
intent cannot be established ‘the act remains punishable but not as genocide. It may
be classified as a crime against humanity or it may simply be a crime under ordinary
criminal law’ (Schabas, 2000).
166 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Although Bassiouni (1979), for example, believed that genocide was not committed
by the US regarding their aboriginal populations, in 1995 a special reporter of the
Commission on Human Rights took the opposite position, stating, ‘the history of the
United States of America is closely bound up with the . . . genocide of the Indians that
[was] openly practiced from the seventeenth century to the nineteenth century’.9

Premeditation and intent in corporate genocide

In Chapter 5, at least two of the cases discussed ‘genocide’ and ‘war crimes’: Bancoult
v. McNamara10 and Presbyterian Church of Sudan, Rev. John Gaduel and others v. Talisman
Energy Inc. It will be instructive to revisit those cases in order to better understand the
sequence of events leading to the alleged crimes. Starting with the latter, Arakis Energy
Corporation (later ‘Talisman’) sought to secure oil concessions from the local Sudanese
government. Eventually a deal was struck, but it was worth repeating the language taken
from the case, in part:

The oil companies agreed to invest in the infrastructure, in transportation, roads and
airfields and communication facilities to support exploration, and the government
would use the infrastructure to support its genocidal military campaign of ethnic
cleansing against local populations.

The following sequence, therefore, suggests itself. First, the oil company reaches a
corporate decision, a free and informed one, to extract oil from a specific location.
Second, the corporation decides on the infrastructure required to facilitate their
operation. Third, it negotiates with the Sudanese government on that government’s
requirements to ensure that both the first and second steps can proceed to their mutual
satisfaction. In this instance, they agreed that a cordon sanitaire was to be provided ‘to
facilitate the exploration and extraction of oil’ (see Chapter 5).
I believe that such a sequence of events would not require an appeal to ‘wilful
blindness’ in lieu of knowledge, as the terms of the deal had to be explicit. Premeditation,
intent, knowledge and complicity, all would arguably be present. The events did not
occur by chance, through ignorance or on the spur of the moment. They were not
even ‘collateral damage’, or unintended results, as Sudan’s intentions would have been
apparent. The acts that resulted would therefore have been planned and orchestrated,
part of a campaign to treat indigenous and Christian lives as purely collateral to the
successful execution of Talisman’s plans.
In fact one can add crimes taken from the list of ‘other acts’ of genocide described
in Article III of the convention: ‘conspiracy, direct and public incitement, attempt and
complicity’ and many of these categories merit additional discussion:

Yet complicity in genocide should hardly be viewed as being less serious than genocide
itself. The accomplice may well be the leader who gives the order to commit genocide,
while the ‘principal offender’ is the lowly subordinate who carries out the instruction.
In this scenario, the guilt of the accomplice is really superior to that of the principal
offender. (Schabas, 2000)
 GENOCIDE & ECO-CRIME 167

This is indeed the case in Talisman; it does seem very likely that without Talisman’s
proposal and infusion of cash and expertise, the Sudanese government would not
have had the means to perform the ‘ethnic cleansing’ they subsequently undertook.
Talisman neither possessed nor provided the fundamental hatred, but their role remains
pivotal nevertheless. Nor did the ‘incitement’ and ‘conspiracy’ remain inchoate (or
incomplete); the genocide was completed as expected and foreseen, and Talisman was
able to establish its business operation without the need to comply with the international
law requirement regarding securing consent from indigenous peoples (see Chapter 4).
Thus the desire to obliterate a people did not have to be a motive for Talisman, but this
does not ameliorate their total lack of consideration for the humanity, dignity and needs
of specific indigenous groups. Arguably, this was as grave as hatred would have been
because they showed corporate negligence, wilful blindness and total unconcern.
In Chapter 5, Peter French’s CID structure was discussed, in order to demonstrate
the ability of legal entities to devise plans and carry them out as a whole – aside from
the plans and goals of the individuals that comprise the corporation – and their lack of
any mitigating circumstances, because a CID structure cannot have been maltreated or
abused in its ‘forming years’, be subject to emotions today, or to sudden provocation
(Westra, 2004a). Thus, lacking clear extenuating circumstances to diminish their
culpability, and presenting instead what appear to be full calculation and intent,
incitement and planning complicity as well as the economic rewards reaped from the
completion of the operations, corporate legal entities appear to possess all the necessary
requirements to be viewed as fully responsible for the crime of genocide.
The other case, Bancoult v. Robert McNamara, includes the war crimes of forced
relocation, cruel, inhuman and degrading treatment, and genocide. It is particularly
important to establish the presence of one or more international crimes, in this case,
given the court’s conclusion that Bancoult had ‘failed to allege an international environ-
mental tort’ and also given their additional statement that ‘corporate policies . . . however
destructive, do not constitute torts in violation of the law of nations’ (see Chapter 4).
The corporation, Halliburton, was alleged to have supported the Indonesian military
and to have fostered ‘a symbiotic relationship’ between them and its own security
guards and employees. (The appeal to cultural genocide is no less grave than the actual
genocide that best describes the results of the listed corporate activities, but it might be
better grounded in indigenous peoples’ rights law, and I return to it below.) Aside from
the presence of an otherwise notorious corporation, Halliburton, and the presence
among the defendants originally cited of Robert McNamara, Donald H. Rumsfeld and
others from the US Department of Justice, this is a case where the US government
was instrumental in bringing to fruition a plan to place a military base ‘in the middle
of the Indian Ocean’, in the Chagos Archipelago, with the complicity of the British
government. It is impossible to claim that there was no intent, planning or complicity
present.
In order to set up a military base, the first step envisioned was to remove the local
indigenous population: ‘During the late 1960s and early 1970s, the Chagos population
was forcibly removed to nearby Mauritius and Seychelles to make way for a US Military
facility.’11 The whole operation started in 1964 when the governments of Britain and
the US ‘entered into secret negotiations to establish a United States military facility
in the Indian Ocean’.12 Note that the two governments also ‘conducted a survey and
168 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

concluded that the construction of a military base in Diego Garcia would require the
displacement of the indigenous population living in the island’.13
There are a number of problems in the handling of this case under ATCA, and
with the resulting judgement, especially the question of the ‘individual defendants’,
and the court’s conclusion that, ‘this case raises a nonjustifiable political question as
to the potentiality of embarrassment and multifarious pronouncements by various
departments on one question’.14 But at this time, the main concern is to demonstrate
that not only was genocide committed as well as war crimes, but that intent and
premeditation were also present, even if the court cannot ‘second-guess the initial and
continuing decision of the executive and legislative branches to exclude civilians from
Diego Garcia’.15 Aside from raising additional questions about whether the actions of
the US executive and legislative branches are thus to be considered to be acting outside
the law, it is hard to deny that planning intent and knowledge were indeed present.

CONSPIRACY, COMPLICITY AND

‘OTHER ACTS’ OF GENOCIDE

Aside from the twin issues of knowledge and intent, there are ‘other acts’ of genocide
that are also clearly in evidence in Bancoult v. McNamara, especially ‘conspiracy’ and
‘complicity’. In fact, the court also refuses to assess ‘whether it was proper for Britain
and the United States to enter an agreement for the construction of a military base
in Chagos thirty years ago’.16 Nevertheless the British themselves condemned their
own involvement in 2001 when the British judiciary considered the legality of the 1971
Immigration Ordinance in the case Regina (Bancoult) v. Secretary of State for Foreign and
Commonwealth Affairs and Another.
That judgement recognized that removing the population of Chagos, even though
it was done ‘pursuant to the 1971 Immigration Ordinance’, was carried out for military
considerations, although the manner in which it was carried out ‘was not conducive to
the peace, order and good government of the British Indian Ocean Territory’.17 Thus,
whatever could and should be said about the results of that joint operation, the fact that
it was the product of premeditation and previous (joint) planning cannot be denied.
‘At common law, a conspiracy is committed once two or more persons agree to commit
a crime, whether or not the crime itself is committed’ (Schabas, 2000). This planning
and agreement among parties, in fact, are essentially parts of the crime of genocide: ‘By
its very nature, the crime of genocide will inevitably involve conspiracy and conspirators’
(Schabas, 2000). The Charter of Nuremburg tribunal itself recognizes not only genocide,
but also conspiracy as a separate and distinct crime.18 The International Military
Tribunals acknowledged that even in cases when there is a ruler or a dictator in power,
a plan that demands the collaboration of many fits the definition of common planning
and could well be a form of conspiracy (Schabas, 2000). A ‘criminal organization’ could
be considered a form of conspiracy:

A criminal organization is analogous to a criminal conspiracy in that the essence of

both is the co-operation for criminal purposes. There must be a group bound together
 GENOCIDE & ECO-CRIME 169

and organized for a common purpose. The group must be formed or used in connection
with the Charter.19

Not only are the ‘other acts’ related to genocide, but also ‘crimes against peace’, and
‘Offences Against the Peace and Security of Mankind’20 include conspiracy, complicity
and direct incitement (Ratner and Abrams, 2001). However various courts interpret
conspiracy and complicity in various ways. The Tadic case21 concluded that an accomplice
is guilty if ‘his participation directly and substantially affected the commission of that
offence through supporting the actual commission before, during or after the incident’
(Ratner and Abrams, 2001). Yet a grave problem remains: although related acts take
place routinely as do other crimes such as acts of physical torture, most courts do
not consider that corporations could be guilty, even when they perform the crimes,
or incite and facilitate them: ‘Transnational and multinational corporation’s vis-à-vis
indigenous peoples provide further evidence of human rights violations perpetrated by
non-state actors’ (Birch, 2003). Although these difficulties persist in international law,
a recent Canadian amendment to the Criminal Code (7 November 2003) adds special
considerations to the way corporate crime is understood, as noted in Chapter 5.

Holding MNCs responsible under international law:

Some public health considerations

The Canadian Criminal Code Amendment discussed in Chapter 5 is only one small
step in the right direction. From the date of its inclusion in the Criminal Code, to my
knowledge, there have been no cases tried under section 21.
In February 2001, a symposium entitled ‘Holding Multinational Corporations
Responsible Under International Law’ was presented at the University of California,
and several of the panellists addressed various aspects of the question posed here. Many
of the presentations addressed specifically the way indigenous peoples were treated
under ATCA. Richard Herz (2001) argued that:

The primary hurdle in seeking to apply the international norms protecting cultural
rights under the ATCA is Beanal v. Freeport McMoran. There the US District Court
for the Eastern District of Louisiana rejected a cultural genocide claim, because it
found the Genocide Convention does not prohibit the destruction of a culture. The US
Court of Appeals for the Fifth Circuit affirmed holding that a cultural genocide claim
was not actionable under the ATCA because cultural rights are neither sufficiently
specific nor universally accepted. Both decisions were wrong.22

Herz’s statement is supported by the fact that, although the Genocide Convention
debated the issue, it did not ultimately accept ‘cultural genocide’, but remained
with the ‘physical destruction of a people’ instead (Herz, 2001). Subsequent treaties
do protect cultural rights (see for instance the ICCPR and the ICESCR). In addition,
the Stockholm Declaration (1972) defends ‘the right to an environment adequate
for survival’, and the ‘right to a minimally healthy environment’ exists as well under
customary international law (Herz, 2001). Unfortunately, even if we accept Herz’s
assessment of the Beanal judgement and concur with his position, this does not help to
170 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

move forward on the vexed question of corporate accountability under international

law. Nevertheless, Article IV of the convention states:

Persons committing genocide or any other acts enumerated in Article III, shall be pun-
ished, whether they are constitutionally responsible rulers, public officials or private
individuals. (emphasis added)

The article does not single out ‘natural individuals’, hence it should include legal
individuals, for example, corporations, especially since, according to Article I, ‘genocide,
whether committed in time of peace or in time of war, is a crime under international
law’. If legal entities such as corporations or other organizations are included as ‘private
individuals’, then all harmful and criminal aspects of the ‘second conquest’ should be
included, driven as they are by economic advantage without any other considerations.
Recently, the connection between corporate products, processes and activities was
emphasized by Wiist (2006):

Many public health professionals are aware or have been involved in public health
problems and issues related to corporate products, services or practices. Freudenberg
described a wide variety of products and practices of what he termed ‘disease promoting
corporations’. Included are products such as tobacco, unsafe motor vehicles, expensive
medications, guns, alcohol and certain foods.

The undeniable effect of these products and practices, at least in developed countries
where some regulatory regimes exist to impose restraints, is quite different from the
effects of the same corporate quest for profit maximization and the externalization
of costs in developing countries, in the absence of legal restraints. Normally public
health addresses specific products, companies or, at most, a certain industry, such as big
tobacco. The research of the WHO is outstanding in that regard, and they have recently
published comprehensive collections of scientific materials, especially regarding
children’s health (WHO, 2002; Licari et al, 2005; see also Westra, 2006).
But all the available research does not ‘address the fundamental structure and func-
tion common to all corporations’ (Wiist, 2006). In general, public health should return
to its earlier emphasis on social justice (Scutchfield, 2004). Structural factors have long
been recognized as causative of ‘inequities in health’ (Wiist, 2006), and so are many
other public health issues.
The recognition of these factors, and of the basic structure and goals of corporate
activities should help to support the connection between corporate activities and public
harm, either direct or indirect, that is, thorough the environment (Westra, 2004a). If
‘causing serious bodily or mental harm to the members of the group’ (Convention on
Genocide, Article II(b)) is accepted as genocide, one does not even need to appeal, as
Herz (2001) does, to other instruments. The presence of genocide in its most common
physical manifestation can even be found in the public health assessment of corporate
practices in general. However, it might be useful to return to the actus reus of genocide
and revisit some of the accepted aspects of that crime, as I did above for its mens rea
aspects.
 GENOCIDE & ECO-CRIME 171

GENOCIDE: THE ACTUS REUS AND

CULTURAL GENOCIDE

The final draft of the Convention on Genocide, Article II, after ‘(a) killing members of
the group’, lists ‘(b) causing serious bodily or mental harm to members of the group’,
and a brief review of the case law involving indigenous peoples will support the claim
that corporate harms do rise to the level of international law and that, in fact, they
represent forms of genocide.
The legal aspects of indigenous rights most often referred to are ‘self-determination’
and ‘cultural integrity’, and the latter is the aspect that needs to be considered in rela-
tion to ‘cultural genocide’, as that is the absolute negation of ‘cultural integrity’.
Cultural integrity is:

. . . at the core of the Draft United Nations Declaration on the Rights of Indigenous
Peoples and previous drafts that were produced by the chair of the U.N. working
group on Indigenous Populations pursuant to that body’s standard setting mandate.
(Anaya, 2000)

The language of an early draft is explicit in this regard:

3. The [collective] rights to exist as distinct peoples and to be protected against

genocide. . . 4. The [collective] right to maintain and develop their ethnic and cultural
characteristic and to distinct identity including the right of people and individuals to
call themselves by their proper names.23

The draft’s language provides protection for the efforts to assimilate rather than respect
indigenous cultures found in North America (including Canada) and elsewhere. But
given the close identification of indigenous groups with their ancestral lands (see
Chapter 1), the protection should be explicitly extended to their territorial integrity
as the indispensable component of cultural integrity for all land-based minorities. The
nexus between land and peoples is also recognized by the Convention on Biological
Diversity, which states that each party shall:

. . . [s]ubject to its national legislation respect, preserve and maintain knowledge,

innovations and practices of indigenous and local communities embodying traditional
lifestyles relevant to the conservation and sustainable use of biological diversity.24

The extensive history of the debates on the inclusion (or non-inclusion) of ‘cultural
genocide’ (Schabas, 2000) demonstrates that it is not, at this time, the equivalent of
‘genocide’, ‘because no international instrument exists making it a punishable act’
(Schabas, 2000). Yet all the arguments presented by various state parties in the ATCA
cases we have discussed totally ignore the sui generis connection between indigenous
peoples and their traditional lands, for which I have argued (see Chapters 1 and 2).
Destroying a Catholic church or a minaret may well represent an act of aggression
and disrespect toward Catholic or Muslim worshippers, but whatever its intent and
172 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

motivation, it does not effectively eliminate either group, as the displacement of the
Chagos people in Beanal or the U’wa in Colombia, effectively attempted to do.

Genocide: The actus reus and ethnic cleansing

Considered in the context of the conflicts in former Yugoslavia, ‘ethnic cleansing’

means rendering an area ethnically homogenous by using force or intimidation to
remove persons of given groups from the area.25

The same Commission of Experts also stated that ‘ethnic cleansing is contrary to
international law’, and that, in certain cases ‘ethnic cleansing could be considered a
breach of the Genocide Convention’.26 Nevertheless, the judgement in Tadic27 refers
several times to ‘ethnic cleansing’ without, however, equating that crime to genocide.
The judgements under ATCA and in various tribunals discussed in Chapters 4 and
5, do not even consider the actus reus, the material aspects of the cases as presented in
the detailed accusations of the indigenous groups, because the courts did not even get
past the procedural aspects of the cases regarding the appropriate venue, or who should
or should not be named as defendant. That is why, unlike the language in the cases
from the former Yugoslavia, the judgements I have listed do not have much that can be
used to clarify the present issue of the various aspects of genocide in the jurisprudence
concerning indigenous peoples.
In contrast, it is what the judgements do not say that is enlightening; there is, for the
most part, no dispute about the factual presentation of the cases. Hence it seems clear
that the factual aspects of each of the cases tried under ATCA and, in general, involving
corporate activities and their impact on indigenous peoples, are correct and can be
accepted as not presenting frivolous complaints. That said, the next step is not to study
only the judgements and the final dispositions of the cases but, most of all, to consider
the factual components of the actus reus claimed, in order to evaluate the status of each
of those components in international law.
The most obvious case of ‘ethnic cleansing’ is the Talisman case (see Chapter 5).
The corporation involved was accused of complicity with the government of Sudan
to ensure that the area where their mining operations were to be conducted was no
longer home to the original indigenous and Christian inhabitants. The Doe v. Unocal
case (see Chapter 4) does not have indigenous population physically removed or killed.
Instead the population was enslaved to provide the required labour for the corporate
operations. We noted also the total removal and deportation of the Chagossian
population in Bancoult to make way for a US military establishment on Diego Garcia
(see Chapter 5).
Schabas (2000) distinguishes ‘ethnic cleansing’ from ‘genocide’ on the basis of the
intent of the acts committed:

While the material acts performed to commit the crimes may often resemble each other,
they have two quite different specific intents. One is intended to displace a population,
the other, to destroy it.
 GENOCIDE & ECO-CRIME 173

Of course, even if it is not genocide, ‘ethnic cleansing’ is at least ‘deportation or forcible

transfer of population’.28 But, while Schabas’ (2000) interpretation is obviously correct
in regard to the cases he analyses – from Eichman and other Nazi crimes, to crimes
related to the Ad Hoc Tribunals for the former Yugoslavia – when ‘deportation’ and
‘forcible transfer’ are applied to indigenous, land-based minorities, the ‘two intents’
combine in the final result accomplished by the corporate activities in the ATCA cases.
Both a Chagos population ‘transferred’ ad absurdum to the Canadian Rockies, and a First
Nation of Canada moved to an island in the Indian Ocean or the Philippines, effectively
cease to exist as peoples, at least, as the peoples they were in their original traditional
lands. Hence, it may not be immediate ‘killing’ of the individuals comprising the group,
but I suggest it may well be a form of genocide nonetheless, by ‘depriving them of the
necessary conditions of (their) existence (as a people),’ as well as remaining a crime
against humanity and a war crime.
A close kin of ‘ethnic cleansing’ is ‘ecocide’, particularly relevant from our point
of view:

[Ecocide] Threats to the integrity of the environment can conceivably imperil the
survival of a group of people. If associated with the intent to destroy the group, the
definition of genocide may apply. (Schabas, 2000)

Richard Falk (1974) also couples genocide with ecocide, as does Ken Saro-Wiwa in his
description of the effects of the activities of Royal Dutch Shell Petroleum in Ogoniland,
Nigeria (Westra, 2006). However, there is no history of established jurisprudence linking
‘ecocide’ and ‘genocide’, although public health research provides ample evidence for
the unavoidable interface between the two.

Genocide: Causing serious bodily or mental harm

What is now paragraph (b) did not really emerge until the meeting of the Ad Hoc
committee. It was based on a French proposal: ‘Any Act directed against the corporal
integrity of the members of the group’. (Schabas, 2000, emphasis added)29

The original understanding of ‘serious bodily harm’ is far more specific than the
actual phrasing of Article II(b). Bodily harm can be far more than physical attacks
resulting in wounding or other harms, short of actual killing. Environmental harms
due to the alteration of the physical environment, or the introduction of processes
and products that are known to impair normal human function, all can be subsumed
under attacks on the ‘corporal integrity’ of members of the group. For instance, open
flares and spreading of oil and tar on the fertile farmlands in Ogoniland, as well as the
effects of Texaco’s operations in Jota v. Texaco (see Chapter 5), produce grave effects
beyond wounds that are immediately observable and eventually can heal (WHO,
2002). These harms include harms to the unborn and to future generations (Westra,
2006). The significant aspects of these harms include not only their origin and their
intergenerational reach, but also the fact that the activities that produce the harmful
results are invariably produced by corporate activities (legal individuals), not by single
natural individuals, who would have neither the power nor the interest to engage in
174 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

such widespread and complex operations. In fact, even states themselves, the primary
subjects in international law, can be and most often are complicit with corporations and
conspire with them to support their activities, but seldom engage in hazardous activities
on their own in peacetime.
Mental harms, according to Lester Pearson (cited in Schabas, 2000), could only
mean ‘physical injury to the mental faculties’.30 Although Pearson’s interpretations
were not officially accepted, again, in an early proposal we find an important aspect of
this crime. At a recent meeting of the Collegium Ramazzini in Bologna, Italy (22–25
September 2005), a yearly meeting of prestigious medical and epidemiological scholars
and practitioners, Philip Grandjean presented a paper entitled ‘Only One Chance
to Develop a Brain’, where he explained that certain pre-birth and early exposures
permanently eliminated any chance of an embryo or a foetus developing normal brain
function (see Westra, 2006; see also Grandjean and Landrigan, 2006).
Hence, exposures to certain chemical substances only result from corporate
endeavours, and they are scientifically proven to irreversibly alter a person’s mental
abilities, as are pesticide exposures of the preborn, infants and young children (WHO,
2002; Licari et al, 2005). When industrial or extractive operations are conducted near
to indigenous peoples’ territories, and a specific group is affected, one aspect of the
‘mental harm’ component of genocide appears to be present.
In addition, threats, intimidation, rapes and other sexual crimes, as well as torture,
may well affect peoples’ mental abilities, and the judgements of the Ad Hoc Tribunals
of the former Yugoslavia and Rwanda present many examples of the effects of such acts
of violence, including sexual violence, on both bodily and mental aspects of a targeted
group. Given the presence of the specific intent to destroy, it appears that in this sense
at least, it is appropriate to claim that genocide has been committed in all these cases.

Genocide: Deliberately inflicting conditions of life

calculated to destroy the group
The 1946 Saudi Arabian draft contained ‘[d]estruction of the essential potentialities of
life of a group, people or nation or the intentional deprivation of elementary necessities
for the preservation of health or existence’. (Schabas, 2000)31

Once again an early, tentative definition captures very well the interface between
environmental deprivation and the preservation of the ‘health and existence’ of in-
digenous peoples.
Almost each one of the cases considered in Chapter 5 describes eloquently for the
corporate activities imposed just the sort of conditions that would cause a current or
eventual grave threat to the existence of the group, although this particular aspect of
genocide ‘does not require proof of a result’ (Schabas, 2000). Deportation or forcible
removal of populations from their traditional lands was tantamount to committing
genocide. If we consider this aspect of genocide, formally entrenched in Article II, the
harm perpetrated upon indigenous populations becomes more evident.
In Chapter 1 the example of a First Nation surrounded by the industrial operations
of Ontario’s well-known ‘Chemical Valley’ showed results that can only be described
as genocide. Because of a number of chemical exposures, the normal ratio of male to
 GENOCIDE & ECO-CRIME 175

female births no longer exists (a result akin to that caused by the Seveso disaster in Italy)
(Westra, 2006). Without enough male births in the tribe, all females could not expect to
marry within the group, but needed to go beyond its borders for husbands. Therefore,
the group could be said to live under conditions that, with or without the intent to
eliminate that First Nation on the part of various corporate actors, are essentially such
that the First Nation would ultimately be destroyed. Currently there is an inquiry by
Health Canada into this issue, and the final result of the inquiry must precede any
possible legal action in defence of the First Nation. However, this case clearly lacks
in deliberate intent to eliminate or harm a specific population, thus neither ‘ethnic
cleansing’ nor ‘genocide’ appears to be prima facie an appropriate description of the
result of the corporate activities. Yet the question remains, whether ‘wilful blindness’ in
the face of the well-known results of chemical exposures, coupled with the knowledge
that the manufacturers and producers of those substances must have, might be sufficient
as ‘knowledge’, if not intent.
Well-known Canadian Judge, Claire L’Hureux-Dubé, has argued from the results
or effects of certain forms of discrimination (regarding gender issues, primarily gay
rights), to demonstrate the injustice of certain practices (Westra, 2004a). Schabas
(2000) also argues that acts of omission (such as failing to provide necessities of life, and
‘withholding sufficient living accommodations’) come close to committing genocide by
‘omission’. He adds, ‘As a general rule domestic criminal law takes the position that
intentional acts of omission are criminal in nature where there is a positive duty to
act.’32
Also, the ‘positive duty to act’ to prevent genocide ‘is imposed upon military and
civilian supervisors’ in the Statute of the ICC (Schabas, 2000), and it is also present in
the Canadian Criminal Code (see Chapter 5). Hence, those in charge of the various
chemical industries had full knowledge of their own processes and products, and had
the responsibility to halt the production in that specific harmful form; although it could
be argued that it was the combination of exposures that rendered them more harmful,
and that possibly, taken one by one, the chemicals might not have been equally as
hazardous. Nevertheless, each corporate official knew full well that their products did
not exist in isolation and were to be produced and released among other hazardous
substances, rather than under sterile laboratory conditions.
The answer here lies in the ‘thin skull’ rule: criminals must accept their victims as
they find them. By analogy, the presence of other hazardous products in the bodies of
the corporate victims should not represent a way to lessen the responsibility of those who
exposed the indigenous populations, rather, it should only increase the responsibility
of the corporate criminals.

GENOCIDE AND JUS COGENS NORMS

AS APPLIED TO ECO-CRIME

The goal of reviewing corporate crimes against indigenous populations in all their
aspects is to show that genocide is committed on a regular basis, as well as other
crimes against humanity, and that for the most part, these crimes are perpetrated with
impunity. The highest possible penalties they encounter are economic liability under
176 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

ATCA. But when the corporate activities and their results on indigenous peoples are
carefully considered, the results are forms of ‘eco-crimes’ (Westra, 2004a) and should
be proscribed by non-derogable (jus cogens) norms, not tried simply as torts, at best
(Scott, 2001a), or simply ignored as ‘not rising to the level of international law’.
The application of jus cogens norms to the issues I have examined will help to
support the obligation to abstain from activities that impose such grave harms on
indigenous groups, both directly and through their habitat/environment. According
to Janis (1988):

Verdross, one of jus cogens’ earliest advocates, explained that the concept of jus
cogens was quite alien to legal positivists, but the situation was quite different in the
natural law school of international law.

Over the last few years, we have seen increasing public unrest and even violence in
defence of global human rights, understood as encompassing the right to a healthy,
protected environment. The chosen target was and is currently the WTO and the high-
powered economic representatives of today’s richest nations. The main objections to
these meetings and their agendas, I believe, address what is presently lacking in the
substance of their deliberations: first, the lack of explicit human rights concern; second,
the lack of environmental and public health concern; and third, the lack of openness
and transparency in their eventual agreements.
The main emphasis on the part of the protesters is on both ‘civil and political
rights’, as well as ‘social and economic rights’, both of which ought to imply the right to
life and the healthy conditions required to support this right. Article 53 of the Vienna
Convention on the Law of Treaties (1969, in force 1980), however, spells out explicitly
the existence of norms that cannot be ‘forgotten’ or simply ignored through other
treaties or agreements arranged for the economic advantage of certain states:

A.53 Treaties conflicting with a peremptory norm of general international law (jus
cogens). A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and recognized by
the international community of states as a whole as a norm from which no derogation
is permitted and which can be modified only by a subsequent norm of general
international law having the same character.

Article 53 sets the stage, giving the clarification of what is an international crime
according to the description of examples of jus cogens norms in the former Article 19 of
the International Law Commission (1996), although this article is strongly positivistic
and thus not entirely helpful from our point of view.
If these articles and the corresponding obligations to which they give rise are taken
seriously, then the so-called ‘hooligans’ who riot and protest against the environmental
abuses fostered and supported by certain WTO policies, might be seen in the light
of freedom fighters, not only engaging in self-defence, but even in the defence of
our common humanity and our common rights (Gilbert, 1994). The character of jus
cogens norms is precisely that of providing the strongest possible citadel in defence of
humanity; their role is to rise above the economic and power interests of various states
 GENOCIDE & ECO-CRIME 177

that could band together (and often do), for purposes that conflict with the respect
due to all humans. Hence, jus cogens norms are uniquely apt to provide and defend
substantive global justice beyond the purely procedural emphasis present in many
other legal instruments. Bassiouni (1996) writes that ‘The term jus cogens means “the
compelling law” and as such a jus cogens norm holds the highest hierarchical position
among all other norms and principles’.
An example may be that of massive pollution of the Mediterranean basin. Mediter-
ranean states are directly injured, but the ‘objective interests’ of countries as far away
as Australia or New Zealand ensures that they, too, will feel and be ‘indirectly injured’
(Sir Alan Sinclair, cited in Spinedi, 1989). This is a good example because the converse
was true of the Nuclear Tests case.33 Both of these reflect the interests of a much wider
constituency than that of the immediately and directly affected states. On 28 March
2007, the Italian Association of Environmental Doctors34 issued a ‘declaration on
Nuclear Energy’ demanding the elimination of nuclear power.
Like aggression or genocide, both of which represent the most widely accepted,
least controversial forms of these sorts of injuries affecting the international community,
I argue that grave environmental pollution (in the quantitative or qualitative sense),
should indeed be treated as a crime, whether or not the term ‘crime’ is present in the
language of any international law instrument.
The existing literature on crimes under international law shows a difference in
emphasis between those who see jus cogens norms as based on universal principles, such
as those of natural law (Ragazzi, 1997), and others, such as Brownlie (1979), who appear
to emphasize the procedural aspects of these breaches of international law. Speaking
of the laws of war and of the Hague Convention of 1907 concerned with just war, and
the 1949 Geneva Conventions IV (Civilians) and the punishment of those responsible,
Brownlie (1979) says:

This is often expressed as an acceptance of the principle of universality, but this is

not strictly correct since what is punished is the breach of international law . . . and
the case is thus different from the punishment under national law of acts in respect
of which international law gives a liberty to all states to punish, but does not itself
declare criminal.

I believe that Brownlie envisages ‘crimes against humanity’ in the context of war or
genocide, so that it might be difficulty for him to agree with the ‘extension’ to ‘eco-
crimes’, for which I have argued under that same category, although these crimes
can and do occur in peacetime. From the standpoint of the argument of this work, I
argue that eco-violence should be viewed in the same light as the unequivocal crimes
of ‘genocide’, ‘attacks against the human person’, and all forms of unprovoked and
unjustified ‘aggression’. The clear condemnation of all these internationally wrongful
acts will then support my conclusions in regard to environmental offences, if that case
can be made.
In addition, one can consider as a very positive development, the emergence of
the International Criminal Court (ICC), although the court is concerned only with acts
of individuals, which should include corporate individuals, not states. Williams (1998)
writes:
178 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

An independent, just and effective international criminal court (ICC) is an

imperative for the twenty-first century. The ICC will have jurisdiction over most serious
international crimes. Its value is not only in prosecuting and punishing perpetrators
of crimes, such as genocide, war crimes, crimes against humanity and potentially
aggression, but in its deterrence capability.

But neither in this work, nor in the Rome Statute of the International Criminal Court
(1998), is there a clear reference to the environment (except in the context of ‘war
crimes’). In sum, not only do environmental crimes committed against indigenous
peoples meet the standards of international law crimes but, I believe, they should be
forbidden by non-derogable (jus cogens) norms, and the obligation to avoid committing
these eco-crimes ought to be an obligation erga omnes, transcending all other conventions
and agreements.
In his discussion of the application of jus cogens norms to land-based minorities,
Pentassuglia (2002) states that the protected ‘existence’ of such minorities ‘has been
conceptualized as including a “basic right to be protected against genocide”’. In
addition, he also argues that the existence of such distinctive groups, depends on the
‘active awareness of their members’ based on their ‘language, culture or religion, a
shared sense of history, a common destiny’. Hence, the destruction of the specific traits
of an indigenous group is equally a form of cultural genocide, as are ‘ethnocide’ or
forced assimilation.
In contrast, Anaya (2000) views the right to self-determination as a ‘foundational
principle’, affirmed in the United Nations Charter35 and other major legal instruments.
Neither Pentassuglia (2002) nor Anaya (2000) envision the possibility that the indigen-
ous groups’ physical environment might be used as the source of grave attacks on their
life and health, not only on each individual, but also on the group itself.
This is one of the most serious problems we have encountered. The problem has
been the difficulty of holding corporate criminals accountable for their crimes, even
when the crimes were clearly specific and well defined. The other problem has been
the fact that ‘ecocrime is not viewed as a crime at all’ (Westra, 2004a). A recent case
demonstrates precisely how damaging to the cause of indigenous peoples are the effects
of this ‘blind spot’ in international law: the Rio Tinto case.36
This is yet another case tried under the ATCA, where the defendants mining opera-
tions on Bougainsville were the source of several crimes:

The defendants’ mining operations on Bougainsville destroyed the islands’ environ-

ment, harmed the health of its people, and incited a ten-year civil war, during which
thousands of civilians died or were injured. . . the defendants are guilty of war crimes
and crimes against humanity, as well as racial discrimination and environmental
harm that violates international law.37

The court did recognize that the war crimes had been committed, but when it came
to environmental harms, they granted – in part – the defendants’ motion to dismiss,
on the basis that international law prohibits only activities that ‘cause damage to the
environment of other States or of areas beyond the limits of national jurisdiction’.38
The plaintiffs had both Professor Gunther Handl and Professor Steven Ratner pre-
senting expert testimony. Gunther Handl started from the human right to life and
health, and he argued that both are principles established in international law:
 GENOCIDE & ECO-CRIME 179

. . . in relation to environmentally injurious activities that threaten human health and

well-being there is general recognition of the fact that such activities also may abridge
basic human rights of the victims concerned.39

Handl also cited the ICCPR, the Universal Declaration of Human Rights, the African
Charter of Human and Peoples’ Rights, the American Convention on Human Rights,
the European Convention for the Protection of Human Rights and Fundamental
Freedoms, and other instruments, as well as the case concerning the Gabcikovo-Nagymaros
Project (Westra, 2004a)40 The court, however, found that questions of environmental
harm are not addressed or defined in detail, hence that the right to health and the
environment are not ‘sufficiently specific’, and that, therefore, it cannot be said that the
law of nations can be violated by perpetrating environmental harm (Westra, 2004a).
This is the crux of the matter, as I have argued (Westra, 2004a; 2006) in different
contexts, and I return to the details of this case below. At this time, and in the context
of the ‘recognized’ jus cogens violation of genocide, we need to note that the fact the
courts rightly do not find an explicit condemnation of environmental harms, let alone
a prohibition, represents a grave lacuna in law. Until the missing link between health/
life on one side, and environmental degradation on the other, is generally accepted
and the special connection between them is acknowledged and established in law, there
is little hope that justice will prevail in indigenous human rights.

Jus cogens norms and erga omnes obligations in eco-crimes

against indigenous peoples

In its dictum, the International Court restricted its list of examples of obligations erga
omnes in the area of human rights to three examples only, namely the prohibition
of genocide, and the protection from slavery and racial discrimination. (Ragazzi,
1997)

In addition, the American Law Institute restatement lists other obligations: ‘the
murder or causing the disappearance of individuals’, ‘torture or other cruel, inhuman,
or degrading treatment or punishment’, ‘prolonged arbitrary detention’ and ‘a con-
sistent pattern of gross violations of internationally recognized human rights’ (Third
Restatement, Section 702).
The important question is which ones of these categories may best fit the treatment
of indigenous groups we have noted in the case law discussed in Chapters 4 and 5. In
his definitive treatment of jus cogens norms and erga omnes obligations, Ragazzi (1997)
touches on this question as he discusses candidates in the area of Development Law,
starting with the ‘right to development’, a position that is usually ascribed to Keba
Mbaye, a former Vice-President of the International Court (Ragazzi, 1997). That right,
however, is not separate from the fundamental rights of human persons, but it is firmly
anchored in the traditional fundamental rights, both individual and collective (see
Crawford, 1988), which include the right to self-determination, supported by a number
of international instruments, as note above.
Therefore it is impossible to support ‘development’, while, at the same time,
denying the very human rights upon which it is based, not only on moral, but also on
legal grounds. The brief list of specified erga omnes obligations supports the approaches
180 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

proposed by both Anaya (2000) and Pentassuglia (2002), the former emphasizing
the right to self-determination, and the latter, racial discrimination, as both are much
better defended in international law than the obligations for which I argue. However,
self-determination is not covered in the list of erga omnes obligations, whereas racial
discrimination fares somewhat better in this regard.
Prima facie, one would think that the right to life and health would certainly count
as protected fundamental rights. But in the Rio Tinto case, for instance, when Gunther
Handl advanced this argument for the plaintiffs, he based his position for both the
environment and the right to life and health on various instruments, including the
American Convention of Human Rights. The Report of the Inter-American Commission
states that:

. . . respect for the inherent dignity of the person is the principle which underlies the
fundamental protections of the right to life and to preservation of physical well-being.
Conditions of severe environmental pollution, which may cause serious physical illness,
impairment and suffering on the part of the local populace, are inconsistent with the
right to be respected as a human being. . . The realization of the right to life, and to
physical security and integrity is necessarily related to and in some way dependent
upon one’s physical environment. Accordingly, where environmental contamination
and degradation pose a persistent threat to human life and health, the foregoing rights
are implicated.41

But, although Handl argues that the right to life and health are established principles
in international law, the court responded that, the American Convention on Human
Rights, ‘does not address issues of environmental harm’, as well as conflicting with US
laws regarding both abortion and capital punishment.42 Because the US has signed but
not ratified the American Convention on Human Rights, the court did not recognize it
as a treaty ‘that created binding obligations’.43
When we turn to environmental harm, the situation is even bleaker; the court
maintained that only trans-border environmental harm is proscribed by international
law.44 Hence, there is a fundamental need to accept modern scientific evidence that
ties inescapably human life/health issues to environmental condition before the case
can be made that – despite the US claims regarding abortion and capital punishment
– at least in international law, the dignity of the human person and her life/health are
protected. In that case, the environmental conditions required for the achievement
of that protection should impose non-derogable obligations on both states and legal
entities.
Ragazzi (1998) further argues that Bedjaoui (1987) supports this position:

. . . it would be contradictory to say on one hand that the prohibition of genocide,

which aims at protecting the elementary right to life, derives from a rule of jus cogens,
but on the other hand, that the right to development which aims at protecting the same
right to life, does not also derive from a rule of jus cogens.

In turn, the right to development does not imply that certain alien, Western conditions
of life can be freely imposed as part of ‘development’ of an area, even when they are
not viewed as ‘development’ by the indigenous inhabitants. The interface between
 GENOCIDE & ECO-CRIME 181

‘development’ and the rights of the human person and her dignity, should include –
minimally – life, health, an acceptable ‘habitat’ and, necessarily, also the consent of the
indigenous peoples to the proposed development. I return to this topic in Chapter 8,
but for now we need to consider another important instrument with serious implications
for indigenous peoples’ rights: the Statute of the International Criminal Court.

Genocide, crime against humanity and the Rome Statute of the ICC

The ‘situation’ in Darfur has galvanized public opinion over recent years because of the
gravity of the ongoing internal conflict in the area. Sudan had signed the Rome Statute
of the ICC on 8 September 2000 (without, however, ratifying it) (Schabas, 2006b).
Speaking of a state party, Schabas (2006b) writes, ‘As a signatory of the instrument, it
is bound to refrain from acts that would defeat the object and purpose of the Statute’.
But the US government and the international community believed that genocide has
been committed in Darfur (Schabas, 2006b; see also, Powell, 2004). Eventually, after a
commission of inquiry, chaired by Anthony Cassese and mandated by Resolution 1564
of the Security Council in 2004, the acts committed in the region were declared to
be crimes against humanity rather than genocide (see Article 5(1)(b) of the Rome
Statute). Article 7 describes crimes against humanity in detail, and several subsections
are particularly apt to describe most of the cases we have discussed. The Talisman case
is a good example. For instance, Article 7(1)(h) states:

Persecution against any identifiable group or collectivity on political, racial, national,

ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that
are universally recognized as impermissible under international law, in connection
with any act referred to in this paragraph or any crime within the jurisdiction of the
Court.

Similarly, Article 2(d) pronounces:

‘Deportation or forcible transfer of populations’ means forcible displacement of the

persons concerned by expulsion or other coercive acts from the area in which they are
lawfully present, without grounds permitted under international law:

Both are accurate descriptions of the facts of the Talisman case. The US is not a party to
the ICC, but this appears to be an egregious example of a case that ought to be considered
by the prosecutor, acting proprio motu, although several countries, including the US,
China and Israel, were opposed to the clause that permits that option. Nevertheless,
the Darfur situation in western Sudan was referred to the court by the Security Council
(Schabas, 2006b), and all the other three cases (Uganda, Easter Congo, and the Central
African Republic) that have appeared before the court to date were referred by state
parties.
It would be wrong to minimize in any way the atrocities taking place in Darfur,
but there are some countervailing considerations in respect to also promoting the
addition to the court’s docket of cases like Talisman. First, the existence of a proprio motu
prosecutor is a very significant aspect of this sui generis court and it was fought for and
182 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

eventually gained precisely because of its importance to the international community.

Hence it would be a significant move to use those powers in this new direction.
Second, the numbers of people killed, deported or tortured in any given situation
was never explicitly listed as a condition for prosecution priority. In fact, there do not
seem to be any specific conditions listed in order to establish priorities and, as Article 17
‘Issues of Admissibility’ states under 1(d), ‘The case is not of sufficient gravity to justify
further action by the Court’ as a guideline. But it neither specifies numbers required
to trigger prosecution, nor does it attempt to define ‘gravity’ in either a qualitative or
quantitative sense.
For the most part, human rights issues are judged from a Kantian standpoint, that
is, they are based on an understanding of the absolute value of life, any life, and the
non-derogable obligation to respect it. In contrast, utilitarian considerations, such as
the question of affected numbers, do not seem to be explicitly mentioned in any human
rights instrument.
In fact, the Human Rights Court has heard and issued a judgement on a case
involving a single woman (from the Canadian First Nations), that of Linda Lovelace
(see Chapter 3) without requiring the involvement of a larger number of women. No
doubt, the judgement, once pronounced, will serve large numbers who will be able
to appeal to the precedent. This is equally true of corporate crime, and any and all
judgements concerning the gravity of the consequences that follow upon it.
Hence, third and most important, it is possible that to include an apparently ‘lesser’
crime perpetrated by corporate offenders, might send ripples of awareness and spur
corporate decision-makers to rethink their strategies, once these have been deemed to
be unequivocally criminal.
As we noted in this and the last two chapters, corporate activities that involve
Northern power and Southern resources have become routine and – for the most part
– the harmful, often lethal effects of those practices, have been and are regularly viewed
as the collateral effect of business as usual. The burden of proof is left entirely on the
victims, a practice long condemned by defenders of minorities everywhere (Bullard,
2001).
In contrast, Articles 22 and 25 indicate clearly the major stumbling blocks facing
any attempt to criminalize corporate human rights abuses. Article 22(2), Nullum Crimen
Sine Lege, expects that the crime be ‘strictly construed’ and not ‘extended by analogy’
and, as noted, there are no clear definitions of environmental crimes in international
law. Article 25(1) declares that the court has jurisdiction over ‘natural persons’, thus
not specifically excluding legal persons from its reach.
However, this is the less serious problem because responsible parties may indeed
be isolated (see discussion of ‘intent’ above), as in civil cases they are routinely involved
in money laundering, illegal accounting practices, insider trading and the like. And if
we consider the question of equity, it is hard to justify the lengthy jail sentences given in
cases such as Enron, Worldcom and others, in comparison with the effective immunity
of corporations that have been accused of crimes against humanity or genocide;
that is, crimes of a gravity that surely exceeds that of economic misdeeds, no matter
how severe. In addition, the connection between corporate offender and the crimes
discussed, particularly those brought to the attention of American courts under ATCA,
may well fare better at the ICC. Schabas (2006b) writes that ‘Early in his mandate, the
Prosecutor pointed towards the economic actors as those who might bear the greatest
responsibility, and therefore merit his attention’.
 GENOCIDE & ECO-CRIME 183

In his discussion on policy issues,45 the prosecutor points the way by speaking of
future investigations, involving ‘financial links with crimes’, such as purchasing and
providing arms used in crimes, and evidence of possible collaboration with rebels or
state parties. The prosecutor adds, ‘Such prosecutions will be a key deterrent to the
commission of future crimes, if they can curb the source of the funding.’46
This is indeed the key point: insurgents, warlords in Africa and others, such as
the Sudanese government in the Talisman case, cannot operate on their hate alone.
International investors and institutions provide not only the armaments as tools, they
also incite criminal activities with the incentive of their financial capabilities. In that way,
they keep the criminal activities and their perpetrators alive and well, to the ongoing
detriment of indigenous peoples and local inhabitants in the global South.

GENOCIDE AND CRIMES AGAINST HUMANITY

In effect, the act of genocide of ‘killing’ has the same underlying elements as the
crime against humanity of ‘murder’, the grave breach of ‘willful killing’ and the war
crime ‘murder’, subject of course to the various contextual elements of each category
of offences. Accordingly, the analysis of the act of genocide of ‘killing’ draws upon
relevant precedents from these other categories. (Schabas, 2006a)

As we saw above, it is not easy to fit the aspects of genocide that appear in the definition,
characteristics and applications of the concept in case law to the forms of genocide that
apply to aboriginal groups. It is easier to advance claims about ‘intent’, at least through
the presence of ‘knowledge’ or of awareness of the results of certain activities, than it
is to fit the harms inflicted upon aboriginal peoples under the heading of ‘genocide’,
understood in its technical sense, that is, as used in the UN international courts.
But it is worthy of note that the Trial Chamber of the International Criminal Tribunal
for Rwanda (ICTR), in Kayishema et al,47 defines causing serious bodily and mental harm
as ‘harm that seriously injures the health, causes disfigurement or causes any injury to
the external, internal organs or senses’. This description fits almost precisely the sort of
harm that we have noted above. Equally interesting, in Akayesu,48 ‘According to an ICTR
Trial Chamber, rape and sexual violence may constitute genocide on both a physical
and mental level’ (Schabas, 2006a; see also, Russel-Brown, 2003).
Hence, other forms of ‘bodily and mental harm’ to the individual within a group
may be serious enough to merit the appellation of genocide. The crux of the problem
is that courts, legislators and judges remain ignorant of the public health dimensions
of environmental harms, just as Victorian judges, no doubt, would not have taken as
seriously cases of sexual assaults or rapes. Rapes allow survival, despite the terrible
immediate and long-term harms they cause. They are easily recognized as ‘constituting
genocide’ when a particular group is targeted, as was the case of Tutsi women in Rwanda,
for example.49
Analogously, it is unclear why activities that irreversibly affect the health, reproductive
abilities and normal organ function of individuals within a group, are judged to be
unworthy of fitting under the heading of genocide (see Westra, 2004a). Also, there is
yet another aspect of genocide (in the legal/technical sense) that should be considered
in relation to aboriginal peoples: ‘deliberately inflicting conditions of life calculated
184 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

to destroy the group’, and several cases discussed in the preceding chapters fit this
description well, especially if we accept knowledge as sufficient proof of awareness and
hence intent. According to Schabas (2006a), ‘This act of genocide corresponds closely
to the crime against humanity of “extermination”, where similar language has been
used in the judgments.’
The problem of intent was discussed earlier in the chapter, hence it appears possible,
in fact desirable, to apply also the category of crimes against humanity to aboriginal
grievances. These crimes are not limited to specific ethnic or religious groups, but are
now simply required to be directed ‘against any civilian population’, according to the
Nuremberg Charter, and the population must be the ‘object of widespread or systematic
attack’ (Schabas, 2006a). Hence this category remains pertinent to indigenous groups,
as the reference to a civilian population is ‘intended to imply crimes of a collective
nature and thus exclude single or isolated acts’ (Schabas, 2006a).50 For instance, one
of the punishable acts of crimes against humanity, besides the expected ‘murder’,
‘extermination’ and ‘enslavement’, is ‘deportation’ or, according to Article 7(2)(d) of
the Rome Statute, ‘deportation or forcible transfer’. Above we noted the case of Chagos
(see Chapter 5), describing the full extent of this crime on the inhabitants of an island in
the Indian Ocean, committed by the US government. Moving from Oceania to Alaska,
we can see another version of the same plight in Shishmaref, a small village only 22 feet
above sea level. This village was originally protected from storm surges by a layer of ice
in the Chukchi Sea. But in 1997, a storm ‘scoured away a hundred-and-twenty-five-foot
wide strip from the town’s northern edge’ and in October 2001, the whole village was
threatened by 12 foot waves (Kolbert, 2006). The US Government intends to move the
whole village apparently with their consent to an even more remote and unaccessible
area. Climate change is the main cause, not a single specific industrial activity, but a
combination of all of them, globally. The question remains whether this choice is ‘free’,
or whether it should be viewed as coerced, since the alternative is almost certain death.
It seems as though it should be viewed as ‘coerced’, as it always is under the threat of a
gun or other weapon. Once again, the removal of a whole population, under threat of
death from cumulative effects of Western commercial activities, is nothing but another
form of ‘forcible transfer’. In the next chapter, I consider in detail the impact of climate
change on Arctic populations in the case of the Nunavut people of Canada.

NOTES

1 Barcelona Traction, Light and Power Company Ltd (Second Phase); ICJ Reports 1970:32; see also
Schabas (2000).
2 See the Rome Statute of the International Criminal Court (ICC), of 17 July 1998, UN Doc.
A/CONF.183/9.
3 ibid.
4 UN Doc. E/447.
5 Prosecutor v. Akayesu, (Case No. ICTR-96-4-T) Judgement, 2 September 1998, para. 477.
6 ibid.
7 Draft Elements of Crimes, UN Doc. PCNICC/1999/DP.4, p.7; see discussion in Schabas (2000).
8 ibid.
 GENOCIDE & ECO-CRIME 185

9 Report by Mr Maurice Gkeke-Ahanhanzo, Special Reporter on Contemporary Forms of

Racism, Racial Discrimination, Xenophobia and Related Intolerance, on his mission to the
United States of America from 9 to 22 October 1994, Submitted Pursuant to Human Rights
resolution 1993/20 and 1994/64, UN Doc. E/CN.4/1995/78/Add. 1, para. 21.
10 370 Dupp. 2d1. US Dist. LEXIS 27882 – 21 December 2004 decided.
11 Bancoult v. McNamara, 217 FRD 280, 2003 US Dist. LEXIS 17102 (DDC, 2003, #2).
12 ibid.
13 ibid.
14 ibid.; see also Baker v. Carr, 369 US 186, 217 2d.663, 82 S. Ct. 691 (1962).
15 ibid.
16 ibid.
17 ibid.
18 Agreement for the Prosecution and Punishment of Major War Criminals of the European
Axis, Establishing the Charter of the International Military Tribunal (IMT) (1951), 82
UNITS 279. Annex.
19 France et al v. Goering et al (946) 22 IMT 203, p. 528.
20 Report of the International Law Commission to the General Assembly, UN Doc. A/1316
(1950), reprinted in 1950 [II] ILC Y.B. 364.
21 Case No. IT-94-1-A; Judgement, 15 July 1999.
22 Beanal 969 F. Supp. 362, 373 E.D.La 1997, 197 F. 3d 161 (5th Cir. 1999).
23 First Revised text of the Draft Universal Declaration on Rights of Indigenous Peoples, UN
Doc. E/CN.4/Sub.21/1989/33 (1989), paras. 3 and 4.
24 Convention on Biological Diversity, 5 June 1992, UNCED, Art. 8(j), 1992, UN Doc. UNEP/
Bio.Div./N7INC.5/4 (1992).
25 Interim Report of the Commission of Experts Established Pursuant to Security Council
Resolution 780 (1992), UN Coc.S/35374 (1993) para. 55.
26 ibid., para. 56; see also Schabas (2000).
27 Prosecutor v. Tadic (Case No. IT-94-I-T, Opinion and Judgement, 7 May 1997.
28 Statute of the International Criminal Court (ICC), Articles 8(1)(d) and 8(2)(d).
29 See UN Doc. E/AC.35/SR.13, p. 12 (five in favour, one against with one abstention).
30 Parliamentary debates, House of Commons, Canada, 21 May 1952; p. 2442.
31 UN Doc. A/C.6/86.
32 See Prosecutor v. Delalic et al, Case No. IT-96-21-T, Judgement, 16 November 1998.
33 Australia v. France, 1974, ICJ Reports 1974, 253; and New Zealand v. France, 1974, I.C.J. 457.
34 ISDE, ‘Declaration Against Nuclear Energy,’ an association of 100,000 doctors in 40 countries,
28 March 2007.
35 UN Charter, Art. 1, para. 2.
36 Alexis Holyweek Sarei et al v. Rio Tinto plc and Rio Tinto United, US District Court for the Central
District of California, 221 F. Supp. 2d 1116; 2002 US Dist. LEXIS 16235; 156 Oil and Gas Rep.
403, 11 July 2002, Entered.
37 ibid.
38 ibid.
39 ibid.
40 Hungary v. Slovakia, where the ICJ declared the protection of the environment to be ‘a vital
part of contemporary human rights doctrine’.
41 Declaration of Gunther Handl in Opposition to Motion to Dismiss, p. 23.
42 Rio Tinto, p. 112; Supporting Carter Decl., p. 34.
43 ibid.
44 ibid.
45 Draft paper on some policy issues before the Office of the Prosecutor, for discussion at the
public hearings in The Hague on 17 and 18 June, 2000: pp. 2–3.
186 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

46 ibid.
47 Kayishema et al (ICTR-95-I-T), Judgement and Sentence, 21 May 1999, para. 109.
48 Akayesu (ICTR-96-4-t) Judgement, 2 September 1998.
49 ibid.
50 See Bagilishema (ICTR-95-1at) Judgement, 7 June 2001, para. 80; see also Article 7(I) of the
Rome Statute of the International Criminal Court.
 CHAPTER 8

Aboriginal Rights in Domestic and International

Law, and the Special Case of Arctic Peoples

FROM DOMESTIC LAW TO INTERNATIONAL LAW:

THE CASE OF THE LUBICON CREE

It is very clear that the Lubicon people cannot survive the destruction of our traditional
lands and the expropriation of our natural resources any more than could any other
society.1

The cases reviewed in Chapter 6 indicate clearly the lacunae present in Canadian
laws regarding its aboriginal peoples. Most often, cases and conflicts brought to the
courts are based on principles and involve traditional cultural and religious beliefs,
yet they are treated – for the most part – simply as land deals. The historical roots
and background of the legal instruments used in the cases are treated seriously and
systematically, but the principles upon which aboriginal peoples based their adherence
to those documents (even when they did so) are largely ignored. Both the reasons
for and the form of their agreements are consistently misunderstood (Imai, 2001).
Indigenous peoples thought that allegiance, cooperation and respect were to govern
their interaction with the Europeans, a hope that never truly materialized.
It is sad to find that when deliberate misunderstanding and the ‘wilful blindness’
appear to govern both the federal and provincial governments, as well as the courts, then
the quest for justice does not fare well, even under international law. The clearest case
in point is that of the Lubicon Cree from Alberta.2 The Lubicon Cree Nation had been
asking the Alberta government to demarcate their lands in the boreal forests of Alberta
for many years, but to no avail, as mining, lumbering and agriculture were increasingly
taking over their traditional lands (Huff, 1999). Eventually, the Lubicon Cree decided
to abandon their efforts at gaining recognition in the courts, and decided instead to
‘erect checkpoints on all roads entering their traditional territory’ (Goddard, 1991).
Chief Ominayak decided they had the right to protect their territories, declaring, ‘the
Lubicon Nation intends to assert and enforce its aboriginal rights and its sovereign
jurisdiction as an independent nation’ (cited in Goddard, 1991).
The Lubicon Cree depend on the boreal forest for hunting, fishing and trapping,
their traditional pursuits, but the provincial courts did not recognize their claim. The
provincial government sent in the Royal Canadian Mounted Police who arrested 27
people at the checkpoint where the Lubicon were blocking the highway (Huff, 1999),
188 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

thus justifying the Lubicon’s lack of trust in Canadian legal institutions and the promises
of the Alberta government.
In 1984, the Lubicon took their case to the United Nations Human Rights
Committee:3

In March 1990, the United Nations Human Rights Committee (UNHRC) concluded
that ‘historical inequalities’ and ‘more recent developments’ have endangered the way
of life and the culture of the Lubicon Cree. The Committee ruled that ‘so long as they
continue, these threats are a violation of the Lubicon’s fundamental human rights.

Yet the rights to the traditional territory of the Lubicon Cree had not been extinguished
by any treaty that might affect them. Although they live within Treaty 8 territory, they
had not signed that treaty. The Canadian government assured the UNHRC that it was
working to find a way to settle with the Lubicon in a mutually satisfactory way. Since the
time when this commitment was made, until 2007, no settlement has been reached. In
contrast, while the Lubicon Cree live in squalor, with no running water in their homes,
‘billions of dollars more in oil and gas resources have been extracted from Lubicon
territory’.4
It is vital to keep two points in mind: the first is that as long as Canada stalls by
saying it is ‘negotiating’ or ‘trying to settle’, somehow it continues to avoid taking any
concrete action on this urgent matter; however, since there have been no negotiations
since 2003, this is no longer a valid argument. The second point is that what is being
taken away from the Lubicon is far more than revenue, although an equitable share of
the profit being made by Alberta might be at least a beginning. Nevertheless, the harms
they are suffering are incompensable harms, and even if they were offered a fair share
of the profits of those industries, still it would not be right to continue the present rate
and mode of resource extraction and ‘development’, given the irreversible effects of
those operations, as we shall see below.
Although eventually the UN decision came down in favour of the Lubicon, their
territory has yet to be demarcated. The problem originated because they lived in an
isolated area, north of the land where treaties, such as Treaty 8, had been negotiated,
so that the Lubicon Cree were essentially missed when other treaties were signed for
other aboriginal people in Alberta and Saskatchewan (Goddard, 1991; Huff, 1999).
But the main problems started after the discovery of what some believe are among
the most extensive petroleum fields in America, adding to the threats to traditional
Lubicon lifestyle from agriculture, settlement, mining and especially the exploitation
of timber. ‘The Story of the Lubicon Case shows what can happen in Canada when
a native community tries to assert rights to a territory rich in oil’ (Goddard, 1991).
Oil companies were pressing for development and by 1979 ‘The Province of Alberta
completed the construction of an all-weather road to the previously remote Lubicon
territory’ (Huff, 1999). The road was built without ever solving the question of the legal
boundaries of the Lubicon territory, yet:

Since the all-weather road completion in 1979, more than 400 oil wells have been
installed by more than one hundred oil companies, all within fifteen miles of the main
Lubicon community of Little Buffalo. (Huff, 1999; see also Goddard, 1991)
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 189

Hence the issue is even more complex than the lack of aboriginal title or the recognition
of the appropriate boundaries of the Lubicon territory.
Huff (1999) lists several of the attacks on the life and health of the Lubicon. First,
the proximity of operating oil wells to the Cree settlement. Second, ‘Gasoline and motor
oil spills have fouled many traditional gathering areas’, hence traditional gathering and
trapping is much reduced, as is market demand for pelts. This reality has affected the
Lubicon in several ways. The elimination of the income from trapping has forced most
families in the community to depend on welfare for their survival. Also, traditional kills
of moose or other animals were followed by a feast and by the distribution of extra meat
to people in need.
Hence the lack of favourable hunting conditions means more than a reduction
in income for the Lubicon, it also implies an unravelling of their traditional social
interaction. Chief Ominayak explains:

On welfare groceries, one is embarrassed because he or she cannot share food with kin
– who wants hot dogs and a half can of spam? As the inability to share continues,
social relations deteriorate because one is embarrassed to visit empty-handed.5

The third problem reflects a combination of direct and indirect harms. The disappear-
ance of the traditional lifestyle and the demands of subsistence resulted in a ‘dramatic
rise in alcoholism, domestic violence, fights, car accidents, theft and suicide’ as well as a
series of health problems. Some of the harms described represent a threat to their life
as a people, others attack their life as human beings whose health and normal function
has not been considered or protected by a government who had the fiduciary duty to
do so. The extent of these harms must be fully understood before laws that reflect that
reality are put in place.

INDUSTRIAL AND EXTRACTIVE OPERATIONS:

THE UNRESTRAINED THREAT OF
CHEMICAL EXPOSURES

It is imperative that the results of chemical and other industrial exposures be fully
understood, especially when these are combined with ecological disintegrity in their
lands and, increasingly, the effects of climate change. Because of the Lubicon’s prob-
lems with oil wells, epidemiological studies dealing with oil exploration should be our
first consideration.
Surprisingly, or perhaps as expected, it is hard to find any credible scientific
literature outlining the health results of the oil wells in Alberta. Fred Lennerson, an
advisor to the Lubicon, declared that:

. . . since 1978, when the first road was constructed on Lubicon territory, the moose
population – the staple of the Lubicon diet – swiftly declined. Moreover, environmental
pollutants caused by oil and gas companies have created numerous health problems
including a high number of still births, birth defects, asthma, tuberculosis, and
various cancers. (Huff, 1999)
190 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

One can find the reason for the lack of research if one considers the history of published
works attempting to determine what oil explorations do to the health of those who
live nearby. Chevron-Texaco’s oil development in Ecuador gave rise to acrimonious
critiques on the part of Chevron-Texaco’s scientific consultants when credible studies
appeared in the literature.6 Those studies reported on the ‘geographical differences
in cancer incidence in the Amazon basin of Ecuador’ (Hurting and San Sebastian,
(2002), abnormal pregnancy outcomes (San Sebastian and Cordoba (1999), and acute
leukemia and environmental exposure (Steffen et al, 2004).
David Hewitt, one of Chevron-Texaco’s scientific consultants, criticized all these
studies for methodological and data quality problems. Yet a large number of scientists,
especially epidemiologists, published a strongly worded article in the popular magazine
The Scientist, criticizing the rejection of those studies. The scientists agreed that this
represented yet another example of the grievous harm perpetrated and supported
by ‘science for sale’, while serious and well-respected scientists have gone on record
to support the exposées of the epidemiological studies that showed the effects of oil
extraction and other hazardous operations. These scientists made their convictions
clear:

In response, 50 scientists from around the world have written a letter arguing that
the company’s statement (that is that of Chevron-Texaco) was a ‘blatant attempt to
influence an ongoing court case in Ecuador, in which residents were suing Chevron-
Texaco for allegedly polluting the region and endangering their health. The plaintiffs
argue it will cost [US]$6 billion to correct environmental damage. (McCook,
2005)

Hence, the same health problems encountered by aboriginal people forced to live near
oil extraction and production are rendered even more serious by the fact that any
credible scientific analysis of their problems may be blocked from reaching the courts
or any other possible source of redress. It is ominous to note that despite the length
of time elapsed from the start of oil exploration, even a thorough epidemiological
search of specific literature related to the situation in Alberta failed to turn up any
article analysing the issue. Are the Lubicon physically different from other aboriginal
people in other areas? Are they perhaps more resistant to the chemical attacks they are
subjected to, whether with intent or simply through wilful blindness? (Westra, 2004a).
These questions are neither logical nor sensible, hence it must be concluded that
the Lubicon’s plight cannot be and apparently has not been reported in reputable
scientific journals because of overt or covert political opposition to the frank discussion
and publication of such data, which may affect potentially interested researchers. In
addition, young untenured scholars may also find it hard to express their concern,
as it might be viewed as disregard for the broad interests of their home institutions,
their provincial governments, or any source of grants and other academic support.
Thus we note that for the Lubicon Cree, we only find arguments presented on their
behalf based on personal observation or experience, both of which are hard to admit
as ‘expert evidence’.
A recent article by Clapp et al (2006) summarizes the problems endemic to oil
extraction. The authors list the studies published in reputable, peer-reviewed journals,
addressing the results of Texaco Corporation’s 28-year operation of the Napo concession
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 191

in Ecuador, constructing approximately 350 wells and extracting about 1.5 billion
barrels of oil:

As a consequence of this activity there was and remains today widespread contamination
of the environment and exposure of local populations living in the former concession
area to a variety of hydrocarbon compounds, metals and gasses. (Clapp et al,
2006)

We shall return to these findings and conclusions in Chapter 9, when I assess responsi-
bility and accountability for the harms caused to indigenous populations. For now, the
closing sentence of this Clapp et al’s (2006) annex supports the contentions of this
chapter:

. . . it is evident that there are numerous dangerous chemicals and metals that are
produced and to which peoples are exposed in the oil extraction process. Most of
this information is in general scientific literature and is based on studies of workers
and communities in settings outside Ecuador. Nevertheless toxic and carcinogenic
properties of these compounds are as relevant to the residents of Eastern Ecuador as
they are to people anywhere.

Neurotoxic effects of chemical exposures: A life sentence

One in every six children has a developmental disability and in most cases these
disabilities affect the nervous system. The most common neurodevelopmental disorders
include learning disabilities, sensory deficits, developmental delays and cerebral
palsy. Some experts have reported that the prevalence of certain neurodevelopmental
disorders – autism and attention deficit disorder, in particular – might be increasing.
(Grandjean and Landrigan, 2006)

Clear evidence can be found in general reports on the far-reaching toxicity of all
industrial chemicals, especially in the medical/epidemiological literature coming from
Europe, as that research is somewhat less likely to be tainted by political bias than
work by local scholars, dependent on local funding and institutions. The gravity of the
problem is recognized by Amnesty International (2003) and other international NGOs
like Women in Europe for a Common Future.7 The prestigious medical journal, The
Lancet, published a groundbreaking article with far-reaching implications by Grandjean
and Landrigan (2006), demonstrating how common chemicals affect human beings
when they are most vulnerable, that is before and right after birth, while their brain is
developing:

The developing human brain is inherently much more susceptible to injury caused by
toxic agents, than is the brain of an adult. This susceptibility stems from the fact that
during the nine months of prenatal life, the human brain must develop from a strip of
cells along the dorsal ectoderm of the fetus, into a complex organ consisting of billions
of precisely located, highly interconnected and specialized cells.
192 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

In theory, irreversible neurobehavioural damage is preventable (Grandjean and

Landrigan, 2006). But only five major groups of chemicals have been admitted to be
toxic: lead, methylmercury, arsenic, polychlorinated biphenyls (PCBs) and solvents
(Granjean and Landrigan, 2006), yet at least 201 chemicals are known to be neurotoxic
in man. The lists of ‘metals and inorganic compounds’ and ‘organic solvents’ include
most, but not all, of the industrial substances to which aboriginal peoples are exposed,
both in Canada and globally (see table opposite).
Children are not a species apart from the adults they will eventually become.
They will exhibit either the diseases resulting from their earlier exposure, or other
neurological outcomes of their irreversible earlier exposures. Evident in the lists in the
table are arsenic and cyanide compounds used in gold and silver mining operations
and the lead and benzene present in petroleum and its by-products. In addition are
all the pesticide exposures resulting from too close proximity to farming or forestry
operations, or even from the participation of individuals in farming operations that
produce occupational health problems in the working adults and in their offspring.
These are not diseases that are susceptible to treatment or cure. Not only are the
diseases mentioned in the Lancet article incurable, but they include equally irreversible
instances of altered normal function (Boyle et al, 1994; Grandjean and White, 2002). Oil
and other extractive industries, together with other environmental pollutants, ensure
the presence of a variety of neurobehavioural impairments (Janssem and Slovaxk, 1991;
Kimbrough et al, 1989; Landrigan, 2002). Nor are developmental abnormalities the only
hazards, ‘The combined evidence suggests that neurodevelopmental disorders caused
by industrial chemicals have created a silent pandemic in modern society’ (Grandjean
and Landrigan, 2006).
This pandemic carries with it a number of consequences to the general population,
and these consequences become acute and unavoidable when the recipients are unable
to move away from or stop the chemical attacks. The consequences include ‘increased
likelihood of school failure, diminished economic productivity, and possibly increased
risk of antisocial and criminal behaviour’ (Grandjean and Landrigan, 2006; see also
Needleman et al, 2002). Other consequences include ‘increased risk of Parkinson’s
disease or other degenerative diseases’ (Calne et al, 1986; see also Landrigan et al,
2005).
Although these scientific studies are all non-specific, it is easy to extrapolate for a far
better understanding of the true nature of the environmental exposures of aboriginal
peoples. In addition, there are more specific studies regarding uranium mining and
pesticide exposure, and they are discussed below. For now, the lack of consideration of
these facts and general ignorance of the effects of chemicals (see figure on p194) is a
major part of the problem. As long as the courts and legislators do not understand fully
what the cases before them imply, there is little hope that justice will be applied to the
beleaguered indigenous groups that are affected not only by what the law proscribes
but, unfortunately, even more by what it does not forbid.
Because these consequences are far better known to the general public, the cancer
epidemic related to oil extraction has not been mentioned thus far. On that issue, it is
instructive to turn to a recent article by Waters (2006):

Cancers related to occupational and environmental conditions, pose additional risks

for disease. For example, men and women who live around oil fields in the Amazon
provinces of Sucumbior, Orellana, Napo, and Pataza face elevated risks of cancer of
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 193

Neurotoxic chemicals
Metals and Inorganic Compounds Organic Solvents
• Aluminium compounds • Acetone
• Arsenic and arsenic compounds • Benzene
• Azide compounds • Benzyl alcohol
• Barium compounds • Carbon disulphide
• Bismuth compounds • Chloroform
• Carbon monoxide • Chloroprene
• Cyanide compounds • Cumene
• Decaborane • Cyclohexane
• Diborane • Cyclohexanol
• Ethylmercury • Cyclohexanone
• Fluoride compounds • Dibromochloropropane
• Hydrogen sulphide • Dichloroacetic acid
• Lead and lead compounds • 1,3-Dichloropropene
• Lithium compounds • Diethylene glycol
• Manganese and manganese compounds • N,N-Dimethylformamide
• Mercury and mercuric compounds • 2-Ethoxyethyl acetate
• Methylmercury • Ethyl acetate
• Nickel carbonyl • Ethylene dibromide
• Pentaborane • Ethylene glycol
• Phosphine • N-Hexane
• Phosphorus • Isobutyronitrile
• Selenium compounds • Isophorone
• Tellurium compounds • Isopropyl alcohol
• Thallium compounds • Isopropylacetone
• Tin compounds • Methanol
• Methyl butyl ketone
• Methyl cellosolve
• Methyl ethyl ketone
• Methylcyclopentane
• Methylene chloride
• Nitrobenzene
• 2-Nitropropane
• 1-Pentanol
• Propyl bromide
• Pyridine
• Styrene
• Tetrachloroethane
• Tetrachloroethylene
• Toluene
• 1,1,1-Trichloroethane
• Trichloroethylene
• Vinyl chloride
• Xylene
Source: Grandjean and Landrigan, 2006
194 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Diagram of the extent of knowledge of neurotoxic

chemicals

n=5

n = 201

n>1000

n>80,000

Chemicals known to be toxic Chemicals known to be

to human neurodevelopment neurotoxic in experiments
Chemicals known to be neurotoxic Chemical universe
in human beings

Source: Grandjean and Landrigan, 2006

the stomach, rectum, skin, soft tissue, and kidneys. In addition, women have increased
risk of cancers of the cervix and lymph nodes; and children under the age of ten have
higher risk of haematopoietic cancers.

More non-specific evidence and the intent to suppress

relevant health-related information: The results
Nor has the Government performed any health studies that pinpoint exactly what
people and animals are breathing in heavily developed areas such as Grand Prairie,
Sundre, Lloydminster or Pincher Creek. Even the oil and gas industry agrees that this
scientific gap needs to be filled. (Nikiforuk, 1999)

Although this article does not address any aboriginal issues, it gives an excellent overview
of the health impacts on both animals and humans of oil development, particularly
regarding Alberta’s farmers (Nikiforuk, 1999). Nikiforuk also points out that, despite
the fact that both oil companies and the provincial government have claimed there are
no proven harms from those oil operations, many scientific studies show the contrary to
be true, especially in the case of sour gas (hydrogen sulphide). As research at both US
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 195

and Alberta locations shows, even low doses of sour gas exposure ‘can cause persistent
neurobehavioural dysfunction’ (Nikiforuk, 1999), as well as higher than normal levels
of bronchitis and pneumonia, and congenital heart anomalies in children, and this
evidence may also be linked to the Lubicon.8
In Chapter 7 we addressed the thorny question of what constitutes genocide, espe-
cially the aspect of intent. We also noted that the facts that came to light regarding
the effects of residential schools on indigenous children fit the bill in a very real
sense, given their deliberate effort to eliminate, if not individuals, certainly the Indian
children as a ‘people’. The courts and the government itself stepped into the breach,
and eventually the Royal Commission catalogued the painful evidence of all the wrongs
done to Indian children in those institutions, and the consequence in adulthood of the
crimes perpetrated.
However, in the light of the information about the consequences of harms so grave
to indigenous children, before and after birth, that they shaped and altered intellectual
function, economic abilities, and the ability to fully distinguish right from wrong and
follow the law, it is possible that the religious and state/provincial institutions who
perpetrated those crimes are by no means the only guilty parties.
Considering Grandjean and Landrigan’s (2006) laundry list of results following
upon ‘business as usual’, it is clear that indigenous peoples are totally vulnerable and
unprotected now. Noting the eerie similarity between one set of consequences (for
example, those following oil extraction and mining operations exposures), and those
observed after the imposition of state institutional standards of treatment upon the
children. Perhaps we need to reconsider a few main points.
The first point is the issue of viewing church institutions as fully responsible, as
that may represent an oversimplification in the effort to isolate a convenient scapegoat.
Hundreds of thousands of dollars were paid when the churches cooperated and assisted
while admitting this public shame. Their crimes are not in question. But there may be
another side to the story. What we have detailed above, the disease, despair, lack of
ability to continue a traditional lifestyle, are all present in today’s aboriginal peoples
too, despite the elimination of the residential school system in Canada. In fact, all the
effects listed occur everywhere when their territorial integrity is breached, their cultural
rights are not respected and, worst of all, when hazardous industrial operations are
placed close enough to their villages and settlements to harm children and adults, with
results that match and also exceed the harms produced by the institutions discussed by
the Royal Commission.
What is needed is a lot of research by independent and credible scientific sources
because, unlike the case of the residential schools’ effects that can be researched and
documented almost in vivo by listening to affected individuals and their children, the
other harms are not readily known, allowed to surface and explained to the public. No
Royal Commission has even attempted to attack the ‘sacred cow’ of corporate freedom,
and the over-consumption that results in the urgent need for oil and other products, no
matter the cost. As we saw, only scholars far removed from the actual situation appear
to have attempted that sort of research, and their courage and integrity is rewarded
with immediate attacks from ‘big oil’ and their ‘prostitute science’. The history of
big tobacco is instructive in this regard: their fraudulent assertions and endless, well-
funded efforts to distort reality and manipulate the public and the courts provide the
right perspective from which to judge what is happening.
196 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Perhaps that is what is needed to protect the rights of First Nations and other
aboriginal groups, far more than endless debates on self-governance and sovereignty.
Less abstract argument and far more independent scientific research is needed,
including the publication of detailed and thorough case studies, in order to show the
full impact of an economic system without conscience or respect for life, health and
normal function and its impact on the ‘canaries’ of the world. This claim is pursued
further in the next section, when I consider Nunavut, a self-governing Inuit territory
north of the Arctic Circle. Does its self-governance grant the Inuit immunity from
harm?
At any rate, it must be acknowledged, it will be extremely hard to convince any
government, including that of Canada or of any province, to pursue a course that runs
counter to the economic interests of their corporate friends and supporters. Yet justice
demands that this course be followed. If reparation and restitution were accepted as
necessary and appropriate, following the actions of religious and other institutions, the
fact that the latter are not rich corporate allies of any government should not deter
Canada’s provinces and others from accepting the obvious. Similar harmful effects
mean that similar condemnation and reparation should follow corporate criminals.
In addition, the harmful activities should be eliminated immediately, no matter what
the economic hardship in order to protect life/health and normal function as soon as
possible.

IS SELF-GOVERNANCE ALONE THE ANSWER?

THE CASE OF THE ARCTIC PEOPLE OF NUNAVUT

Pack ice to the white man seems like a barrier, something to fear. But to the Inuit it’s
their highway. It’s their communication system, their freedom, their independence.
Without it there is no Inuit culture. (Kendall, 2006)

For the most part, the case law we have considered thus far represents aboriginal claims
requesting self-governance, or even sovereignty, border demarcation, and the right to
consent to commercial intrusions on their lands (see Chapter 6). Self-governance, as
noted in Chapter 1, is one of the two pillars of aboriginal rights, together with cultural
integrity. The suggestion advanced at that point was to add the foundational right of
biological/ecological integrity to the rights that are currently acknowledged. Perhaps
the extensive general research summarized in this chapter from public health sources
indicates the vital necessity of that addition.
The question, however, remains that even if my proposal is accepted, how are
the three principles to be ranked? Does self-determination remain primary, while the
other two are viewed as ancillary principles? Or is my claim valid that the biological/
ecological integrity of the indigenous peoples and their lands should instead be viewed
as primary? The situation of the Inuit of northeast Canada is a case in point: they
enjoy self-governance but their position is by no means ideal, although the pressing
hazards of oil extraction found in Alberta or Ecuador are not present at this time and,
to my knowledge, there is only one gold mine (although more are presently under
development) and one diamond mine in the area. Nevertheless from 1960 to 2002, a
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 197

zinc mine existed at Nanisivik, and the animals that form the staple of the Inuit diet
have the highest DDT content in the world in their bodies (Colborn et al, 1996).
As we shall see below, these indigenous peoples suffer grave health and social
problems, which arise at least in part, from the carelessness and short-sightedness of
industrial operations and consumerist lifestyles, many far removed from their borders
and almost totally beyond their control (Ford et al, 2006).

Global warming and vulnerability in the Canadian Arctic

The Arctic Climate Impact Assessment (ACIA) suggests that future climate change
will be experienced earlier and more acutely in polar regions. These changes will occur
on top of recent climate change which has been documented by instrumental records
and indigenous observation in the Arctic. (Ford et al, 2006; see also ACIA, 2004;
Ford, 2005)

While Western developed nations debate the existence of global warming and what to
do about it, the Inuit have been plunged right into the effects of it, with no way out:

In 2004 scientists with the Arctic Climate Impact Assessment, a comprehensive study
of climate change in the Arctic, reported that the region as a whole has undergone the
greatest warming on Earth in recent decades with annual temperature now averaging
2–3 degrees Celsius higher than in the 50s. (Ford, 2005)

This change affects the region’s ice, as the ‘late Summer Arctic sea ice has been thinned
by 40 percent in some parts, and shrunk in the area of roughly 8 percent over the past
30 years’ (Ford, 2005; see also Kattsov and Kallen, 2005).
What are the major effects of these drastic changes? The first thing to note is that
Arctic people are particularly vulnerable to these changes, as a recent study (Ford
et al, 2006) of the Inuit in Arctic Bay, Nunavut, indicates. For that study, Ford and
his collaborators used the ‘Conceptual Model of Vulnerability’, as indicated by the
United Nations Framework Convention on Climate Change (UNFCCC, 1992). This
convention defines vulnerability ‘as a function of the climate conditions to which a
system is exposed, its sensitivity, and its adaptive capacity’ (McCarthy et al, 2001).
The special vulnerability of the Inuit arises principally because of their dependence
on the land and sea for their subsistence, a condition they share with most indigenous
peoples’ communities. Their main defining activity is hunting:

Considerable time is spent by most community members ‘on the land’ (a term used by
Inuit to refer to any traditional activity, camping, hunting, or traveling) that takes
place outside the settlement. (Ford et al, 2006)

There are several main issues that manifest the basic vulnerability of the Inuit hunting
and gathering activities, when either preparing to go or already out ‘on the land’, in
relation to global warming. The first is the ability to predict weather-related dangers and
to be able to adjust plans according to that knowledge. But, as Lisha Levia, a resident
of Arctic Bay puts it:
198 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Normally, when the wind starts coming, it comes gradually, then it gets stronger later
on. But today when it starts getting windy, it comes on really strong. I cannot predict
the weather through looking at the clouds when I used to. (cited in Ford, 2005)

Eva Inukpuk reports a similar experience of her 70-year-old mother, who used to live in
igloos and could predict accurately what the next day’s weather would be like. She adds,
‘Now, it could be anything: all her knowledge counts for nothing these days’ (Kendall,
2006).
Hence, what we are witnessing in the Arctic is much more than climate change, it
is, as the people in Nunavik describe it, ‘climatic disruption’ (Kendall, 2006). It is more
than just warmer temperatures; it is the total unpredictability those changes produce,
the related elimination of the Inuit’s knowledge base, and the severe impact on their
cultural life (Ford et al, 2006).
If the Inuit are traditionally dependent on their hunting activities and the ability
to predict the weather in order to prepare ahead of each trip, this is much more than
a source of inconvenience in their travel; it could be, and often is, a matter of life and
death. For example, if the expectations are for spring temperatures that might be too
warm to build igloos, then tents might be a better alternative. Making this decision
ahead of a trip may well prove fatal if the temperature drops suddenly in the night and
the hunters may then freeze to death.
Similarly, the arrival of freak blizzards and sudden snowmelts may prove equally
fatal to hunters unexpectedly falling through thinner ice (Kendall, 2006). Thus, the
importance of traditional knowledge is drastically diminished, as is the respect due
to experienced hunters. Hunters were formerly the keepers of the ‘collective social
memory’ (Ford et al, 2006).9
When this knowledge base fails and this failure is combined with climatic
conditions that change the historically known accessibility of hunting grounds, this
gravely undermines the very existence of their cultural integrity, as rising weather
unpredictability forces changes in lifestyle on local inhabitants.
Nor does the addition of modern technology guarantee mitigation of the increasingly
hostile environmental conditions I have described. Traditional travel involved dog
sleds, and these animals’ instincts and knowledge base ensure safety for hunters, for the
most part. Modern snowmobiles, instead, often permit sudden plunges through thin
ice hidden under snow (Ford et al, 2006). Perhaps the use of global positioning systems
(GPS) might help preserve, at least in part, the continuity of traditional ways. Yet, when
those man-made devices fail, as they often do, the stranded hunters are left with neither
technology nor traditional knowledge to guide them to safety (Ford et al, 2006):

The results of these increasingly unmanageable hazards give rise to . . . an even more
pressing concern . . . [which is] the social fallout from the transformation of these tradi-
tional subsistence-based societies, to ‘southern’ wage-based economies. Unemployment
in both Arctic Bay and Igloolik stands at over 20 percent, and alcoholism is a major
problem. Nunavut’s suicide rate, at 77 deaths per 100,000 people, is one of the highest
in the world, and six times higher than in the rest of Canada.

The inability to continue traditional practices leads to dependence on waged positions,

hence the change to a ‘dual economy’ or ‘mixed economy’, where both traditional
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 199

Harvesting activities sensitive to observed climatic conditions

Activity Time of year Conditions Implications
General hunting/ October– Thin ice New areas of open water, areas of
travel on the sea December unusually thin ice, and a change
ice in the location of leadsa have
increased the dangers of travelling
on sea ice and lake ice. People have
lost and damaged equipment.
October–July Weather More unpredictable weather and
sudden weather changes have
forced hunters to spend extra
unplanned nights on the land.
Unusual weather – rain in winter,
extreme cold in spring – is
dangerous because hunters are not
prepared.
Narwhal hunt June–July Ice break-up Sudden and unanticipated wind
changes causing sea ice to
unexpectedly disintegrate.
Incidence of hunters being
stranded on drifting iceb and having
to be rescued by helicopter.
General hunting/ July– Waves/ Sudden changes in wind strength
travel by boat September stormy and direction, combined with
weather stronger winds, have forced hunters
to spend extra nights out on the
land waiting for calm weather to
return to the community.
Source: Ford et al, 2006
Note: a) A crevice or channel of open water created by a break in a mass of sea ice.
b) Drift occurs if the ice is blown away from ice that is attached to the land.

living and market-based activities coexist (Chabot, 2003; Damas, 2002). In addition, in
the 1960s, the government promoted ‘fixed settlements’, which further complicated
traditional access to hunting areas (Ford et al, 2006). Finally, the dependence on a
‘mixed economy’ implied the reduction of traditional foods and increased dependence
on store-bought and fast food, with the expected rise in obesity and diabetes resulting
from unhealthy diets (Ford, 2005).
The corollary of this change is not only a grave threat to the health of the Arctic
Bay Inuit, but also, increasingly, to the cultural survival of the Inuit as a people. The
‘social networks’ typical of these societies are seriously eroded, as Lisha Qavavang puts
it, ‘that’s the only way we survive, by supporting one another’ (cited in Ford et al,
2006). But the existence of a ‘mixed economy’ does not facilitate the redistribution and
transfer mechanisms of food sharing (Ford et al, 2006; see also Damas, 1972).
200 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Further, as the difficulties encountered in the changed physical environment dis-

suade current and older generations from persisting in their traditional ways, the results
have been even worse for the young:

English has replaced Inuktikut as the dominant language among younger generations,
older generations think the young Inuit are not interested in learning the traditional
ways, and the Euro-American social norms of youth are far removed from the traditional
upbringing of older generations. (Kral, 2003)

Many younger people have lost the traditional skills necessary for successful hunting,
but without those skills their abilities are insufficient to ensure their safety, and their
economic prospects are bleak, as they now depend on elusive monetary resources to
acquire the technology and the gadgets they would need to survive. Private sector jobs
are limited in number and high unemployment is a fact of life.

Self-governance in defence of Nunavut’s people?

People form governments for their common defence, security and welfare. The first
thing that public officials owe their constituents is protection against natural and
man-made hazards. (Gostin, 2004)

Gostin (2004) stresses the most important function of a government: the security of
citizens and the protection of public health. And that is the question that needs to be
answered at this point: can self-government, even one based on a separate territory like
Nunavut do enough to help alleviate or even eliminate the threats against the Inuit
people? 10
We have noted the grave problems that beset them: loss of cultural integrity and
identity, primarily based on the loss of an appropriate land base but also on the erosion
of their traditional knowledge, so that even on the land, under conditions of changing
climate and altered geographical characteristics, the Inuit are becoming strangers in
their own lands, without the reassuring presence of their age-old skills to guide them.
For these problems, even established self-governance institutions can do little,
although, as we shall see, by confirming the existence of Nunavut as a territory, these
institutions can reinstate a First Nation’s presence as a subject of international law.
Thus, presumably, it can gain protection available through those instruments from
trans-boundary harms,11 although there is no present case law to support my proposal.
Nevertheless, the problems the Inuit are facing are not open to internal solutions: they
are both systemic and collective at the same time. Both aspects render them almost
intractable within the present governance and regulatory systems, and the difficulties
inherent to these categories are discussed in turn.

SYSTEMIC PROBLEMS AND SELF-GOVERNANCE

Her Majesty the Queen in right of Canada and the Inuit of the Nunavut Settlement
Area have negotiated an agreement based on and reflecting the following objectives:
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 201

to provide for certainty and clarity of rights to ownership and use the land and
resources and of right for Inuit to participate in decision-making concerning the use,
management and conservation of lands, water and resources, including the offshore,
to provide Inuit with wildlife harvesting rights and rights to participate in decision-
making concerning wildlife harvesting,
to provide Inuit with financial compensation and means of participating in economic
opportunities,
to encourage self-reliance and the cultural and social well-being of the Inuit.12

The first question that arises is whether the territorial government of Nunavut (where
85 per cent of the population is Inuit) can be held responsible for delivering fully on
the list of desirable outcomes that Her Majesty the Queen commits to their care? It
can indeed ensure that the citizens make decisions regarding their territory, but, as we
saw in the discussion of climate change issues, it is the irresponsible decisions made
outside their territories that affect, probably irreversibly, their basic rights. ‘Self-reliance’
and ‘cultural and social well-being’ are nothing but empty ideals when the conditions
necessary for their actualization are no longer present.
‘Ownership’ and ‘use’ of ‘lands and resources’ are also increasingly empty promises
when the land (including the sea ice) is shrinking fast and what remains is quickly losing
its ‘resources’, so that ‘wildlife harvesting rights’ are becoming more and more elusive.
The ‘conservation of land water resources’ is something that, no matter how good the
governance and how sensitive it might be to the Inuit’s lifestyle, is no longer within
their power. Things might have been somewhat better in 1993, when the Nunavut Act
became law, but at least one aspect of the environmental harms the Inuit are exposed to
was well documented already in the scientific literature, and summarized in a generally
accessible form in 1996 by Colborn et al, reporting on the highest concentration of
DDT and other harmful chemicals in mammals and birds in the Arctic. Therefore, even
then, their ‘resources’, when caught and consumed, were tainted and presented a grave
threat to the health and normal function of the Inuit, although at that time wildlife
might have been more readily available and the climate conditions less disastrous (see
also Grandjean and Landrigan, 2006).
The Nunavut government, as we saw, can and does provide ‘compensation’ as re-
quired. But that compensation, even if it is the result of self-governance and the only
humane choice in the face of deteriorating climatic conditions, remains an option in
direct contrast with the ‘cultural integrity’ of the Inuit. Hence, in their dire situation,
the best that can be done pits the only available choices to support their survival through
self-determination against their survival as a ‘people’.
Nor can the Nunavut government be blamed now for the results of choices initiated
many years prior to their coming into force, in locations far from their territory. We
are witnessing the results of globalization and the spread of the primacy of economic
considerations over any other. These can be witnessed in the disposition of most cases
involving aboriginal people throughout the world. What we are seeing, in addition, is
our own plight, wherever we are living, but in the case of the Inuit, it is significantly
magnified by the two considerations that characterize aboriginal peoples: their full
dependence on the land, and their inability to move away from their homeland, even
to seek safety or subsistence.
202 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

The presence of self-governance, however, adds one hopeful variable to the Inuit’s
plight, as noted above: their existence as a nation might enable them to better assert
their rights in international law, a topic I return to below.

Collective rights and self-governance

The concept of collective interest potentially provides a valuable tool for promoting
human rights enforcement in international law. Over the past century, there has been
a growing consensus that the international community as a whole has a collective
interest in the fulfillment of certain fundamental human rights obligations. (Kaplan,
2004)

There are significant obstacles to any individual or group trying to defend their human
rights because states are still primary in international law (Kaplan, 2004). The law
of nations is intended to govern the dealings between states; individuals and groups
cannot simply expect that their rights will be respected, let alone enforced by a system
designed for interstate legal relations. Nevertheless, there are already several venues
where individuals, at least, can bring their grievances, such as the European Court
of Human Rights, the United Nations Human Rights Committee, the Inter-American
Court of Human Rights (IACHR), and the International Criminal Court,13 although
the last of these is limited in scope to the gravest human rights breaches in times of war,
such as attacks against the human person, crimes against humanity and genocide.
In addition, state consent is normally required when individuals want to complain
to such a high court:

Four United Nations Agreements give individuals or groups of individuals the right to
complain about violations of protected rights by state actors: The First Optional Protocol
to the International Covenant on Civil and Political Rights (ICCPR); the Optional
Protocol to the Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW); the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (Convention Against Torture); and the
International Convention on the Elimination of All Forms of Racial Discrimination
(CERD).14

Essentially, collective rights are, as Kaplan (2004) indicates, best viewed under the cat-
egory of erga omnes obligations, dictated not by treaties but by jus cogens norms.
These issues were discussed in Chapter 7. Essentially the earlier debates between
various ways of viewing crimes of states were never fully solved. The International
Law Commission (2000) eliminated Article 19, intended to draw the distinction be-
tween ‘crime’ and ‘delict’, and to propose examples of the former, including grave
environmental pollution. But the 2000 ILC Reports only retained some of the origi-
nal distinctions, in the language of Articles 41 and 42.15 That is why placing all these
internationally wrongful acts in the same category, the one that contravenes jus cogens
norms, makes good sense. The effects of widespread environmental pollution, climate
change, nuclear threats, and food and water scarcity or contamination share the
characteristics of doing injury to the most basic human rights in all states and evoking
widespread global condemnation.
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 203

Alain Pellet (1997) notes that not only is there a difference of degree between
what can be termed a delict and what must be termed a crime, but there may also be
a difference in kind between some illicit acts and others: ‘Malgré une thése souvant
soutenue, il n’y a pas une simple différence de degré entre ces deux categories de faits
internationalement illicites, mais, bel et bien, une différence de nature’ (‘despite a
thesis often held, there is not a simple difference of degree between these two categories
of internationally illicit acts, but, rather, a difference in kind’). Pellet (1997) explains
further: it is more than the society of states that is affected, it is a question of affecting
humanity. And this is more than a theoretical argument; it is necessary to recognize the
difference between an act of genocide and a ‘banale’ violation of a commercial treaty’s
clause, a dispute between two states. It is the former, not the latter, that primarily has
‘humanity’ as its target.
There are indeed differences between illicit acts that can be termed delicts and
crimes. Only crimes run counter to non-derogable norms; hence, only illicit acts of ex-
treme gravity will fit this understanding. Yet, even Pellet (1997) recognizes the flaws in
the list of examples provided in former Article 19.3.16 Most of them are questionable,
Pellet argues, because the concepts used are ‘open and indeterminate’:

. . . les examples données font appel à des concepts eux-memes largement ouvert et
indéterminés: violations ‘grave’ (quantitativement ou qualitativement?); violations ‘à
une large échelle’; obligations ‘d’une importance essentielle’; ‘aggression’ (aggression
armée ou également aggression economique?).

[. . . the examples given appeal to concepts that are themselves largely open and indeter-
minate: violations that are ‘grave’ (quantitatively or qualitatively?); violations ‘on a
grand scale’; obligations that are ‘essentially important’; ‘aggression’ (only armed or
also economic aggression?).]

No doubt the specifics are insufficient and do not add the clarity required in such a
foundational distinction. But we must consider the spirit as well as the letter of the
relationship between the concept of crime and that of jus cogens, keeping in mind both
Article 53 and Article 64 of the Vienna Convention of the Law of Treaties.
When Pellet (1997) wholeheartedly approves of the distinction between crimes and
delicts, he appears to have in mind the pre-eminent position of international crimes as
breaches of human rights in relation to other wrongful acts. Lauterpacht (1968), for
example, speaks of the Nuremberg Tribunal, as ‘the basis of codification of international
law on the subject. . . In an indirect but compelling manner the enactment of “crimes
against humanity” constitutes the recognition of fundamental human rights, superior
to the law of the Sovereign State.’ Lauterpacht also considers the role of the Security
Council (Chapter VI and Chapter VII of the UN Charter), in order to understand the
relationship between human rights and peace:

The correlation between peace and observance of fundamental human rights is not a
generally recognized fact. The circumstances that the legal duty to respect fundamental
human rights has become part and parcel of the new international system upon which
peace depends, adds emphasis to that ultimate connection. (Lauterpacht, 1968)
204 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Speaking of the ‘General Principles of Humanitarian Law’, Brownlie (1998) remarks

upon the repeated appearance of this concept, for instance, in the Nicaragua v. United
States of America case (1986 ICJ 14) (six passages in the judgement). It is worth citing the
court’s interpretation of the collective right to self-defence (Article 51 of the charter):

. . . [with] regard to the existence of the right of self-defense and in particular collective
self-defense, the Court . . . notes that in the language of Article 51 of the United Nations
Charter, the inherent right (or ‘droit naturel’) which any State possesses in the event of
an armed attack covers both collective and individual self-defense. (at para. 102)

Particularly significance from the point of view of our argument, is the dubious transla-
tion of ‘droit naturel’, easily understood as ‘natural right’ or ‘inherent right’ instead.
The right to self-defence is one of the cornerstones of natural law, and perhaps the
translation used is intended to disguise the presence of natural law in humanitarian law
theory. This switch raises the question: if the right to defend myself inheres to me (or to
a state), why is this the case, unless the argument of natural law supports self-defence by
providing the principle upon which it is based? Brownlie (1998) also notes that ‘there
is an incremental progression toward an actio popularis’, although even the presence or
an obligation erga omnes may not be sufficient for the court to take action. In the East
Timor case:17

In the court’s view, Portugal’s assertion that the rights of peoples to self-determination
as it evolved from the Charter, and from United Nations practice, has an erga omnes
character, is irreproachable. However, the court considers that the erga omnes
character of a norm and the rule of consent to jurisdiction are two different things.
(Brownlie, 1998)

In conclusion, it is clear that neither internal domestic reforms nor treaties will succeed
in addressing and correcting the human rights breaches suffered by Arctic peoples.
The only possible approach is to place their harms in a category that transcends the
limited capabilities of even the best-intentioned instruments of self-governance.

THE TRAIL SMELTER ARBITRATION

AND CLIMATE CHANGE

The Trail Smelter principles persist in international instruments, casebooks and

scholarly footnotes, as the locus classicus of international environmental law. So it
is not at all surprising that one need only scratch the surface to find trace elements of
these Trail Smelter principles in global climate change regimes. (Miller, 2006)

The question is whether Nunavut is indeed a ‘nation’, with its own boundaries, and
hence with rights within those boundaries. Also, is it a ‘nation’ in the sense that it could
participate in international law meetings as a separate entity aside from Canada? But it
might be worth considering, from the standpoint of lex ferenda, whether their separate
‘self-governance’ might entitle the Inuit to more legal protection than they enjoy as
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 205

a separate minority within Canada. In fact, the thrust of Miller’s (2006) chapter, is
precisely the important role played by non-state actors both in the Trail Smelter Arbitration
and climate change, a precedent that might help their case:

The rise of these non-state actors suggests a new world order in which the nation state’s
Westphalian prerogative is increasingly suspect. The literature is right to remind us
that non-state actor involvement in international affairs is nothing new. But the
nature and degree of the contemporary involvement of non-state actors is a genuine
phenomenon. (Miller, 2006; see also Paust, 2004)

NGOs and major corporate individuals play a determinant role today in climate change
negotiations, and this ‘novel’ pressure has a tradition based on Trail Smelter itself, where
the Citizens Protection Association, a Washington residents’ group that would not allow
the issue of Canadian pollution to rest, took a forceful stance. They forced the reopening
of the case in 1933, they refused the $350,000 judgement proposed by the International
Joint Commission as compensation and insisted on additional investigations (Miller,
2006).18
In contrast, corporate mining and smelting interests (on the American side), tried
unsuccessfully to side with the Canadians, hence, the Trail Smelter Arbitration:

. . . transcended its formal framework, as a dispute between the United States

and Canada, to encompass the clash of interests between non-state actors in an
environmental NGO, facing off against global industrial interests on the international
plane. This clash of non-state actors is paradigmatic of contemporary international
environmental law. (Miller, 2006; see also Brown-Weiss, 1997)

This reality is endemic to globalization, as we noted especially in Chapter 4 where

the review of the international case law led inexorably to a discussion of the part
the IMF and the World Bank Group (powerful non-state actors) play in those cases,
through their support of corporate criminal activities. Their main focus is on economic
outcomes, without any regard to the serious human rights violations that result from
those corporate activities.
For Arctic people, the effects of the extended ecological footprint of a globalized
economy are so severe and so diffuse, that it would be extremely hard to bring home the
responsibility for these results to either corporate individuals or complicit governments.
This is especially true since the connections between environmental harms and public
health/medical harms has been consistently ignored by courts and legislators from Trail
Smelter onwards. This ignorance might have been justified in 1933, even in 1941, but it
is a total anachronism today when, as we saw, the connection between environmental
exposures to industrial products and processes and human health are backed by
solid research from the WHO, epidemiology and other scientists. Yet even today, that
connection, together with the damage accelerant provided by climate change, appears
to be invisible, a clear case of ‘wilful blindness’, as I have argued (Westra, 2004a).
In contrast, the strong presence of NGOs in current environmental debates may
be profitably used by Nunavut. NGOs, now as then, ‘advised and even participated as
members of government delegations’ (Miller, 2006). Today, NGOs are even more vocal
and powerful, and they are much in evidence at climate change meetings:
206 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

. . . the tiny nation of Vanuatu turned its delegation over to an NGO, with expertise in
international law . . . thereby making itself and the other sea-level islands states major
players in the fight to control global warming. (Mathews, 1997)

In fact, by the year 2000, when COP 6 was convened in The Hague, The Netherlands,
‘representatives of NGOs outnumbered representatives of states’ (Betsill, 2002). Hence,
even if the self-governing territory of Nunavut may not have the full credentials of a
state, the present operation of international law permits the participation of a much
greater constituency, at least as capable of being heard, in the area of climate change:

Any Body or Agency, whether national or international, governmental or non-

governmental, which is qualified in matters covered by the Convention, and which
has informed the secretariat of its wish to be represented at a session of the Conference
of the Parties as an observer, may be so admitted.19

Less obvious, but no less important, is the connection between Arctic indigenous
peoples and the requirements of the Convention on Biological Diversity (CBD), the
topic of the next section.

INDIGENOUS PEOPLES OF THE ARCTIC AND

THE REQUIREMENTS OF THE CONVENTION ON
BIOLOGICAL DIVERSITY: THE INTERFACE

Article 8 – In Situ Conservation

Each contracting Party shall, as far as possible and as appropriate:
(a) Establish a system of protected areas or areas where special measures need to be
taken to conserve biological diversity;. . .
(d) Promote the protection of ecosystems, natural habitats and the maintenance of
viable populations in natural surroundings;. . .
(i) Endeavour to provide the conditions for compatibility between present uses and the
conservation of biological diversity and the sustainable use of its components;
(j) Subject to its national legislation, respect, practices of indigenous and local
communities embodying traditional lifestyles relevant for the conservation and
sustainable use of biological diversity. (CBD, 1992)

Other items on the list under Article 8 show clearly that, at least originally, the main
concern was with the biodiversity of small islands and developing countries in the South.
This is indicated by the many references to ‘alien species’, to genetically modified
organisms, to the management and conservation of biological diversity, the restoration
of ‘degraded ecosystems’, and to ‘viable populations’, although this last item may also
be applied to the Arctic. Later, with the addition of high-altitude regions and montane
areas as well as the Arctic, the development of the principles of the CBD in response to
the real issue of climate change and industrial pollution is clearly in evidence.
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 207

The points emphasized above are particularly relevant to the main argument of
this work. Note the first point (a) on the establishment of protected areas, as well
as the presence of special measures to conserve diversity, which, as I argued above,
must include a buffer zone and general restraint of industrial activities (Noss and
Cooperrider, 1994). When this point is considered together with the promotion of the
ecosystem protection (d), the centrality of biological ecological integrity, proposed in
Chapter 1 and throughout this book, is clearly in evidence.
Whatever the country, the climate and the specifics of biological diversity, con-
servation in situ starts with the absolute requirement for protected areas; in addition,
those areas must be protected from inappropriate activities even beyond the borders of
the area itself. Note that in ‘Island Specific Priority Actions for the Parties’20 the issue
of ‘pollution’ and its impact on island biodiversity, with ‘special attention to hazardous
waste’, is especially relevant, given the fact that most Arctic communities are also ‘coastal
communities’. The ‘Rationale’ provided is instructive:

Rationale: Islands are largely coastal communities, where it is particularly difficult to

dispose of wastes without impacting biodiversity. The siting of landfills, the disposal
of liquid wastes and the uptake of solid wastes and plastics by marine organisms are
all of considerable significance to islands.21

Essentially, the conservation of biodiversity starts necessarily with the protection of

ecosystems, hence, not only biodiversity itself, but its precondition; the protections of
ecological integrity and the biological integrity of the species living therein, also require
the protection of the ecosystemic function to which they all contribute. Recognizing that
the key to this protection is conservation in situ represents the basis of any conservation
ethic, including the proposed ‘Code of Ethics’ the IUCN is supporting (Bosselmann,
2006).
But it is in Article 8(j), that the intimate connection of ecological integrity and
aboriginal cultural rights can be best seen, particularly with reference to the Arctic
peoples’ situation, such as those of the Nunavut people. Perhaps originally Arctic
people were not front and centre in the mind of the drafters of this article. But, as we
saw, it is impossible to ‘preserve and maintain knowledge, innovations and practices
of indigenous and local communities embodying traditional lifestyles’, unless the
biological/ecological integrity of the area is preserved minimally in ‘special areas’
(Article 8(e)), as both traditional Arctic knowledge and the Inuit’s traditional lifestyle
and culture are utterly dependent on the conditions of the land and climate.
In fact, the COP 8 Decisions (VIII/5. Article 8(j) and related provisions) in its
Composite Report (B. Composite Report on Status and Trends Regarding the Knowledge
Innovations and Practices Relevant to the Conservation and Sustainable Use of Biological
Diversity), The Conference of the Parties, at point 6:

6. Notes with concern the specific vulnerability of indigenous and local communities,
inter alia of the Arctic, small island states and high altitudes, concerning the impacts
of climate change and accelerated threats, such as pollution, drought, and desertifi-
cation, to traditional knowledge innovations and practices.
208 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Thus, whatever the original intent behind the formulation of Article 8(j), in the 2006
Conference of the Parties, Eighth Meeting in Curitiba, Brazil, the catastrophic impact
of climate change influenced the drafters to move to a more inclusive understanding
of that article.
The argument of this work, first, the primacy of biological/ecological integrity as
a right of aboriginal communities, and second, the genocidal impact of the present
primacy of trade over ecological and health protection in national and international
law, are clearly in evidence in the case of the Nunavut people in the Arctic. Their cultural
integrity and their existence as a people is threatened as clearly as their individual
physical existence, despite the presence of borders and self-government, unless the
recommendations of the COP 8 as well as the jus cogens norms against the destruction
of ethnic groups are observed.

THE ARCTIC PEOPLES FIGHT BACK:

THE PETITION TO THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS

In a frozen land, where even small changes in the climate can be significant, the
rapid changes being wrought by global warming are nothing short of catastrophic.
Global warming is forcing the Inuit to shoulder the burden of the rest of the world’s
development with no corresponding benefit. . .
Inuit Qaujimajatuqangit [knowledge] tells the Inuit that the weather is not just
warmer in the Arctic, but the entire familiar landscape is metamorphosing into an
unknown land.22

Contrast these passages with the terse response of the Inter-American Commission
on Human Rights (Organization of American States), which declined to rule on the
complaint of the Arctic Peoples ‘that global warming caused by the United States
violates their right to sustain traditional ways,’ as ‘there was insufficient evidence of
harm’ (Revkin, 2006).
The petition had been filed a year earlier, in December 2005, by Sheila Watt-
Cloutier, Chair of the Inuit Circumpolar Conference, on behalf of the 155,000 Inuit
of Canada, Greenland, Russia and the US. When discussing the petition, it is useful to
return once again to the evidence, as listed by the Inuit and their representatives in the
petition. This evidence comes not only from those who are witnessing and living with
the effects of what I have termed ‘eco-crime’ in regard to climate change, but also many
exceptional legal scholars, such as James Anaya (2000; 2001; 2004), one of the leading
experts on indigenous peoples’ human rights.
The petition indicates the extensive number of international legal instruments that
support the claims of the Inuit:

The impacts of climate change, caused by acts and omissions by the United States,
violate the Inuit’s fundamental human rights protected by the American Declaration
of the Rights and Duties of Man and other international instruments. These include
their right to the benefit of culture, to property, to the preservation of health, life,
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 209

physical integrity, security, and the means of subsistence, and to residence and the
inviolability of the home.23

The petition painstakingly takes us through some familiar territory, problems I have
addressed on these pages, such as the harm to their traditional hunting and gathering
culture, to their economy, to their social and cultural practices, and to Inuit traditional
knowledge regarding climate conditions.24 The petition also reviews the now well-known
facts about global warming and the particular vulnerability of the Arctic, as accepted
by the most creditable scientists and researchers today. Hence, to ignore the melting
of polar ice sheets and glaciers, the rising of sea levels, a hazard Arctic peoples share
with island and coastal states, the ‘alteration of species and habitats’, and the changed
conditions that amount to a physical and intellectual attack on their life, individually
and collectively, is to exhibit not only unacceptable ignorance, but also wilful blindness,
that is, a criminal approach to the reality of the Inuit’s conditions (Westra, 2004a).
In a recent speech25 to the American Geographical Union, Al Gore acknowledges
‘the end of the age of print’ and with it, much of the desire for real information and
the ability to think and weigh issues, supplanted instead by television’s emphasis on
‘entertainment.’ Gore added: ‘There is now willful blindness among both the public
and the politicians’.
The petition also cited the conditions of Shishmaref, Alaska, and the ongoing
erosion of that settlement. It also refers to the Lubicon case, and the importance of the
UN Human Rights Committee decision in that case based on the right to enjoy culture
as a violation of Article 27 of the ICCPR, despite the fact that not much has changed for
the Lubicon since then.26
I have argued, albeit with far less support from legal precedent in either international
or domestic law, that the right to life, health and normal function should be considered
first, as the most basic human right (Westra, 2006). The petition states:

International health and environmental law also lend support to the American
Declaration’s right to health. The preamble of the Constitution of the World Health
Organization recognized that, ‘[t]he enjoyment of the highest attainable standard of
health is one of the fundamental rights of every human being’.27

Given the main focus of this work, the references of the petition to health are particularly
important; it indicates what the law should proscribe as a general obligation, and what
is perhaps the most important aspect of the Arctic peoples’ plight: their survival, both
individual and collective. It is clear that Anaya (2000; 2001; 2004) and other scholars
involved emphasized the threats to cultural survival because the right to ‘cultural
integrity’ can be found in several international instruments, whereas the right to health,
although clearly widespread, is seldom, if ever, clearly coupled with environmental
degradation or pollution of any kind.
Nevertheless Sheila Watt-Cloutier was nominated with Al Gore for a Nobel Prize
and, on 20 June 2007, she won the 2007 Mahbub ul Haq Award for Outstanding
Contributions to Human Development at the UN, in New York. Niamh Collier-Smith,
a spokeswoman for the United Nations Development Programme, told CBC News that
‘Sheila Watt-Cloutier’s dedication and her tireless work with the Inuit people, especially
in the face of devastating climate change, is a real inspiration to us all.’
210 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

The petition and the right to health

The right to health as conceptualized under Article 12.1 of the ICESCR can be viewed
as extending not only to timely and appropriate health care, but also to the underlying
determinants of health. (Musungu, 2005)

The previous discussion on Nunavut emphasized the difference between the healthier
lifestyle of ‘living on the land’ and pursuing the traditional hunting and gathering
practices of the Arctic, and the unhealthy food choices available when hunting is no
longer safe or possible, leading to obesity, diabetes and other diseases. In addition to
these problems, the petition cites the distress, confusion and alienation of the Arctic
peoples, leading to mental health difficulties. Even in the cases cited by the petition,
the main problem emerges: environmental health effects of the pollution tend to be
characterized as ‘environmental nuisances’ or impediments to the rights to one’s home
life, rather than what they are, attacks against the human person, a far more accurate
description of the consequences of environmental/industrial exposures.
In the case of Fadereyeva v. Russia,28 Article 8 of the European Charter of Human
Rights is invoked. The European Court of Human Rights (ECHR) held:

Article 8 had been involved in various cases, yet it was not violated every time
environmental deterioration occurred: no right to nature preservation was as such
included among the rights and freedoms guaranteed by the Convention. In order to
raise an issue under Article 8, the interference should directly affect the applicant’s
home and family life. Further, the adverse effects of environmental pollution should
attain a certain minimum level if they were to fall within the scope of Article 8.

The text of Article 8 requires a breach of the ‘effective enjoyment of the applicant’s
home and private life’, as well as striking a ‘fair balance between the interests of
the community’ and those of the affected party. The ECHR is almost the only court
whose jurisprudence can be cited in such cases, as violation of Article 8.29 In all ECHR
cases, the emphasis is on the violation of home life of the complainant, not on the
real consequences of environmental hazards. In addition, in 1991 in Fredin v. Sweden,30
the court ‘recognized that in today’s society the protection of the environment is an
increasingly important consideration’, as the applicant was not allowed to ‘extract
gravel from his property on the ground of nature conservation’.31
Hence, the court accepts the very personal and the most general environmental
policy issue in Fredin, but nowhere is there a true appreciation of the criminal aspects of
environmental attacks on individuals and groups exposed to toxins or other pollutants.
At best, at times, some ‘mitigation’ is recommended to diminish the harm, and perhaps
some monetary compensation, while the industrial practices that generate the exposure
are taken for granted as being ‘in the interest of the community’.
But one could envision a poor neighbourhood, say, in Naples where many young
men can only find work by being part of an illegal organization such as the Camorra. In
that case, as in cases of other groups being involved in drug trafficking or prostitution
elsewhere, the fact that the persistence of these activities is in the community’s economic
interest does not render them legal or acceptable, let alone such that a ‘fair balance’
must be struck between their interests and those of others in the community.
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 211

The problem remains the lacunae in the law, the distorted view of environmental
assaults, and the wilful blindness of legislators, courts and governments in this regard. If
we consider ‘the conditions necessary for health’ (Musungu, 2005), or, as I have argued,
‘the preconditions of agency’ (Westra, 2004a) (that is, the environmental/health
conditions that are needed to make human beings what they should be), developing
normally into normal thinking people, it is clear that these issues are a significant, even
primary aspect of the meaning of the ‘right to health’:

The right to health can therefore be said to embrace two main parts, namely, elements
related to health care and elements concerning the underlying preconditions of health,
with the first being the core content of the right. (Musungu, 2005)

I have argued elsewhere that not the first, but the second element should be considered
‘the core content of the right’, because the preconditions of health are required to
ensure normal development, long before any need for corrective health care might be
required. In general, the right to health is a fundamental human right, but it is often in
conflict with the obligations ‘imposed by international trade’ (Ranjan, 2005).
It is unusual to see such a clear case of conflicting values as those espoused by the
Nunavut Inuit and other Arctic peoples, and the values and interests of international
trade, and in general, economic interests. In addition, the fact that neither domestic
nor international law is capable or willing to link environmental harms to the ecological
degradation that ensues and to the biological/physical harms suffered by all those
exposed is also clearly in evidence in the case of the Arctic peoples.

A parallel and a goal: The Framework Convention on

Tobacco Control (FCTC)
Although health has traditionally been a limited area of international legal cooperation,
there is a growing awareness that contemporary globalization has led to the proliferation
of cross-border determinants of health status and is undermining the capacity of states
to protect public health through domestic action alone. (Taylor, 2005)

After reviewing the numerous health issues that have had such a grave impact on
Arctic peoples, and in particular on the Inuit of Nunavut, it is easy to see the parallels
between their exposures and those of smokers, as well as the similarity between the
great profits of ‘big tobacco’ and those of ‘big oil’ and chemicals. There is, however, a
vast difference in favour of the rights of Arctic peoples. While one must acknowledge
that, at least initially, there is an element of choice about smoking (discounting the
deliberate addictive components that largely eliminate choice later and the well-funded
marketing campaigns, both of which limit substantially such ‘choice’), that is totally
lacking from industrial and chemical exposures, let alone climate change. According
to the WHO (cited in Taylor, 2005):

. . . cigarette smoking and other forms of tobacco use currently kill 4.9 million people
per year, with the majority of deaths occurring in industrialized countries. . .
212 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

It is expected that by 2020 tobacco will kill up to 10 million people per year with
70 per cent of deaths occurring in developing states, if the epidemic is left unchecked.

The number of affected peoples’ morbidity and death from climate change is also
great and increasing: as many as 150,000 deaths are occurring every year, and 5 million
‘disease incidents each year, from malaria and diarrhea, mostly in the poorest nations’
(Patz, 2005; see also Epstein, 2005). Climate change, as noted, is particularly grave
for Arctic peoples who are absolutely dependent on their territories’ normal seasons
and temperatures for survival, and have the highest exposure of any individuals or
collectives, in addition, to several of the worst chemicals in existence, as their traditional
diet consists primarily of animals high on the food chain.
At any rate, the FCTC was adopted in 2003 by the 192 member states of the World
Health Organization, and it entered into force on 27 February 2005. Taylor (2005)
describes and analyses the lengthy negotiations that finally reconciled the demands of
trade law with those of public health, as most industrialized states, including Australia,
New Zealand, Canada, China, Cuba, Argentina, the US, Japan and even the European
Union, took a strong position against advancing the demands of public health over
those of international trade:

 States are committed to the protection of public health. However both health and
trade are of national interest and should not be subject to prioritization. Rather
health and trade should be ‘mutually supportive’.
 Measures taken to protect public health should not discriminate against inter-
national trade: states should treat domestic and foreign tobacco products on the
same footing. (Taylor, 2005)

Given the presence of such self-contradictory statements, one can appreciate the
difficulties dogging the negotiations, especially since the only explicit references to
international law excluded almost all references to human rights (the final document
included some references to Article 12 of the ICESCR, the Convention on the Rights of
the Child, and the Convention on the Elimination of Discrimination Against Women
(CEDAW). But Taylor (2005) states that, essentially, all attempts to prioritize ‘public
health over international trade were based upon the sovereign right to protect public
health, not the human right to health’. Of course, this is the crux of the problem. As
Taylor notes, most of the those participating in the negotiations were public health
experts, not human rights experts on international law instruments, as would be
required if the interface between ‘trade law and human rights law’ were to be truly
understood. ‘In the year before the end of the negotiations, the draft still contained two
provisions that would have confirmed the priority of the WTO law over the convention’
(Werner, 2005).
Although the final version of the convention eliminated the disputed provisions,
replaced by a statement that ‘the contracting parties are determined to give priority
to the right to protect public health’, this statement remains far short of what would
be just and appropriate.32 The lack of emphasis on individuals’ and peoples' right to
health, except in the evolving and pressing field of protection from the HIV/Aids
epidemic (Taylor, 2005), is the main problem. Unless that obstacle is cleared, and the
unavoidable connection between environmental/industrial exposures and the defence
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 213

of that right is emphasized and codified, substantive justice will elude international
jurisprudence.
It seems that, once again, as in the fight against nuclear weapons and against big
tobacco, the WHO ought to take the lead with another convention against the attacks
to the human person described in this chapter. In this instance, though, the WHO will
need to broaden the range of experts it employs. Given the fact that most people at this
time view the environment as their main concern, it seems that the time for action is
now.

CONCLUSIONS

Part Three bears the brunt of the argument of this work: what is the meaning of
‘genocide’ in law? How far can the concept reach? Environmental law, as such, has
been repeatedly treated as though it does not rise to the level of international law,
hence, ipso facto, it is not viewed as open to claims that its obligations should be viewed
as erga omnes, rather than simply prescribed by treaty law.
This is the essential goal of yet another volume on a topic that has been extremely
well analysed already by some of the greatest publicists of today (such as Anaya, 2000;
2001; 2004; Pentassuglia, 2002; Schabas, 2000; 2001; 2006a; 2006b). The aim of this
work is to raise the bar by showing why the highest and most serious human rights
breaches are the ones that apply to the aboriginal peoples and other ethnic and
religious groups.
The reader will judge whether that aim has been achieved, both at the conceptual
level in Chapter 7, and in the real case that exemplifies the application of all aspects
of genocide to a specific indigenous nation. The people of Nunavut are a particularly
apt example, as when we consider their situation, we are not distracted by the issue of
self-determination or by the lack of decided borders. In addition, they are in a position
that is especially timely, as they are gravely affected by global warming, far more so than
most of the other groups we have discussed.
Armed with these conclusions, the fourth and final part of the book discusses
the question of responsibility and accountability for the harms I have noted. The last
chapter finishes with some proposals for better, saner forms of governance, based on
laws that recognize and incorporate the scientific advances I have documented.

NOTES

1 Affidavit of Bernard Ominayak, Dashowa Inc. v. Friends of the Lubicon, (1998) 158 DLR (4th) 699
(Ont. Gen. Div.).
2 ibid.
3 Bernard Ominayak, Chief of the Lubicon Cree Band v. Canada, Communication No. 167 /1984,
Report of the Human Rights Committee, UN GAOR, 45th Sess., Supp. No. 40, Vol. 2, at 10, UN
Doc. A/45/40, Annex IX (A) (1990), view adopted on 26 March 1990 at the 38th Sess.
4 17 October 2005, ‘Support Lubicon Presentation to the United Nations’; see also Goodard
(1991).
214 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

5 Affidavit of Bernard Ominayak, Dashowa Inc. v. Friends of the Lubicon, (1998) 158 DLR (4th)
699 (Ont. Gen. Div.).
6 See www.texaco.com/sitelets/ecuador/docs/report_hewitt_en.pdf
7 WECF, a leading network of women’s organizations in 31 European countries, issued a press
release on 23 November 2006, on ‘health and environmental issues – ordinary chemicals in
low doses are undermining the health and intellectual capacities of children’.
8 I am indebted for the research related to epidemiological publications on this topic to Dr
Colin L. Soskolne and Mr Brian Ladd at the University of Alberta, Edmonton, Canada. They
have pointed to the dearth of epidemiological research on the links between oil and other
natural resource development and the health of First Nations communities in Alberta. They
also pointed to the challenging, but not prohibitive, methodological constraints to meaningful
epidemiological research in the area, stressing the need for considerations, other than those
informed by the very limited body of retrospective scientific research, to protect the health
and well-being of traditionally marginalized small communities.
9 The ‘memory’ is based on the knowledge and skills passed on by elders, and it is known as
Inuit Qaujimajatuqangit, pronounced cow-yee-ma-ya-tu-kant-eet.
10 Nunavut Act, 1993, c.28 (assented to 10 June 1993); Nunavut Land Claims Agreement Act,
1993, c.29 (Assented to 10 June 1993).
11 Trail Smelter Arbitration, 35 American Journal of International Law, 1941 684.
12 Nunavut Land Claims Agreement Act, 1993, c.29.
13 Rome Statute of the International Criminal Court, 17 July 1998, Art. 1, 37 ILM 1002, 1003.
14 Optional Protocol to the International Covenant on Civil and Political Rights, Art. 1, 1999
UNTS 302; Optional Protocol on the Elimination of All Forms of Discrimination Against
Women, Art. 2, 39 ILM 281, 282; Convention Against Torture and other Inhuman, Cruel
or Degrading Treatment or Punishment, Art. 13, 1465 UNTS 85, 116, 23 ILM 1027, 1030;
International Convention on the Elimination of All Forms of Racial Discrimination, Art.
14(1), 660 UNTS 195, 230 5 ILM 350 361.
15 In fact, Chapter III (ILC, 2000), ‘Serious breaches of essential obligations to the international
community’, reintroduces the difference in kind between certain sorts of breaches of inter-
national obligations and others (described in Article 19), by the ‘back door’, so to speak, as
we see in the language of Articles 41 and 42:
Article 41 Applications of this Chapter
1. This chapter applies to the international responsibility arising from an internationally
wrongful act that constitutes a serious breach by a state of obligation owed to the
international community as a whole and essential for the protection of its fundamental
interests.
2. A breach of such an obligation is serious if it involves a gross or systematc failure by the
responsible State to fulfill the obligation risking substantial harm to the fundamental
interests protected thereby.
Article 42 [51, 53] Consequences of serious breaches of obligations to the international
community as a whole
1. A serious breach within the meaning of Article 41 may involve, for the responsible
State, damages reflecting the gravity of the breach
2. It entails, for all other States, the following obligations:
(a) Not to recognize as lawful the situation created by the breach;
(b) Not to render aid or assistance to the responsible State in maintaining the
situation so created;
(c) To cooperate as far as possible to bring the breach to an end.
3. This article is without prejudice to the consequences referred to in Chapter II and
to such further consequences that a breach to which this Chapter applies may entail
under international law.
 ABORIGINAL RIGHTS IN DOMESTIC & INTERNATIONAL LAW 215

The language of either article can be interpreted to say, more vaguely and imprecisely
perhaps, and in the context of consequences rather than through the description of
examples, what the former Article 19 said, more explicitly and clearly.
16 Article 19:
1. An act of a State which constitutes a breach of an international obligation is an inter-
nationally wrongful act, regardless of the subject matter of the obligation breached.
2. An internationally wrongful act which results from the breach by a State of an
international obligation so essential for the protection of fundamental interests of the
international community that its breach is recognized as a crime by that community
as a whole, constitutes an international crime.
3. Subject to paragraph 2, and on the basis of the rules of international law in force, an
international crime may result, inter alia, from:
(a) a serious breach of an international obligation of essential importance for
maintenance of international peace and security, such as that prohibiting
aggression;
(b) a serious breach of international obligation of essential importance for
safeguarding the right of self-determination of peoples, such as those prohibiting
massive pollution of the atmosphere or of the seas;
(c) a serious breach on a widespread scale of an international obligation of essential
importance for safeguarding the human being, such as those prohibiting slavery,
genocide, apartheid;
(d) a serious breach of international obligation of essential importance for the
safeguarding and preservation of the human environment, such as those pro-
hibiting massive pollution of the atmosphere or of the seas.
4. Any internationally wrongful act which is not an international crime in accordance
with paragraph 2, constitutes an international delict.
17 1995 ICJ 90.
18 See also the Arctic Contaminants Action Program at www.arctic-council.org/news/main.
htm.
19 Article 7, para. 6, UNFCCC; Article 13, para. 8, Kyoto Protocol; the Inuit of Nunavut as well
as other Inuit also have a voice in the ICC.
20 UNEP/CBD/.COP 8/L.20; Decision VIII/30; Target 7.2.
21 ibid.
22 Petition on Human Rights – Violations Resulting from Global Warming Caused by the United States,
Sheila Watt-Cloutier and others, 7 December 2005.
23 ibid.
24 ibid.
25 Op.Ed.News.com, 26 January 2007, Sarah Hoffman, ‘Gore Speaks to 6,000 Earth Scientists
in San Francisco’.
26 Petition on Human Rights – Violations Resulting from Global Warming Caused by the United States,
Sheila Watt-Cloutier and others, 7 December 2005.
27 ibid.
28 [2005] ECHR 55723/00, decided 19 May 2005, p.1.
29 See Lopex-Ostra v. Spain [1994] ECHR 16798/90; Hatton and Other v. UK [2003] ECHR 360
22/97; Guerra v. Italy [1998] ECHR 14967/89.
30 Fredin v. Sweden [1991] ECHR 12033/86.
31 Fadeyeva v. Russia.
32 See final text of the Convention, www.who.int/tobacco/fctc/text/en/fctc_en.pdf
 PART FOUR

Some Modest Proposals

for Global Governance
 CHAPTER 9

Indigenous Human Rights and the

Obligations of State and Non-State Actors

INTRODUCTION: TRANSNATIONAL
CORPORATIONS AND THE LAW

TNCs are key players in terms of development activity, and the perception that
they operate in a vacuum between ineffective national laws and non-existent or
unenforceable international laws has heightened concerns about the correct reach and
effectiveness of environmental regulations, especially where TNCs are operating in
developing countries. (Fowler, 1995)1

If anything, this quote underestimates the lawlessness, and hence the criminality of
transnational corporations (TNCs), particularly in regard to indigenous peoples. This
reality has emerged throughout this book and it is helpful to review the various points
made so far in order to reinforce this claim.
Essentially, the claim is not that either present instruments, whether domestic or
international, or current or past jurisprudence support an obvious argument for the
criminality of corporate activities, despite the presence of some encouraging recent
additions, for instance, to the Canadian Criminal Code (Westra, 2004a). The claim
instead proposed the conclusion that, failing lex lata at this time, lex ferenda of a
stronger, different character is clearly indicated. Equally needed are fully prepared and
informed judges, and vigorous and uncompromising intervention by UN agencies, such
as the World Health Organization (WHO), United Nations Environment Programme
(UNEP), United Nations Children’s Fund (UNICEF) and others, and powerful NGOs
such as the World Conservation Union (IUCN) and Amnesty International.
Some possible avenues to change the status quo are examined in Chapter 10. The
present task is to pull together the strands woven in the previous pages in order to
prepare a summary, of sorts, of all the elements that result, at the very least, in crimes
against humanity.
In Chapters 5 and 6, and throughout the discussion of cases involving aboriginal
peoples, the language of ‘genocide’ or ‘ethnocide’ was often used, although, it is
acknowledged, following Schabas (2006a), the technical sense of the concept as used
in current and recent jurisprudence may not be either inclusive enough or wide-
reaching enough to permit that usage. However, that is the terminology favoured by
many publicists, especially by specialists in aboriginal rights. For the most part, the
220 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

latter accept that the ‘intent’ required by the technically correct use of the concept of
genocide is lacking.
Nevertheless, the Supreme Court of Canada in a 1995 decision has clearly separated
‘intent’ from ‘motive’, thus allowing that ‘knowledge’ is sufficient for mens rea. In
essence, in R. v. Hibbert the court affirmed that ‘desire’ for the consequences of an
act to occur is not a necessary component of a crime, as long as ‘knowledge’ that the
consequences will occur is present. Hence, in those cases, mens rea is present and motive
may, perhaps, be reintroduced at the sentencing stage.2
I have argued that ‘knowledge’ is always present, as is the deliberate planning and
preparation leading any TNC to activities that have an impact on the territories of
aboriginal peoples. Martin Geer (1998) explains:

A basic outline of the TNC’s ‘order of business’ can be delineated as (1) site identi-
fication; (2) cost-benefit and scientific analyses; (3) obtaining government approval;
(4) infrastructure construction, including roads for the initial exploration; (5)
exploration and drilling, with accompanying introduction of substantial changes in
local economies and social structures, including labor relations and cash economics;
and (6) production-extracting, primary source processing, storage and transportation
of crude oils.

It is important to point out that this accurate (though somewhat dated) analysis, as
well as the whole article by Martin Geer (1998), fails to include the full range of harms
to health and normal function we have noted in the previous chapters, including
the impact of climate change, all of which render indigenous peoples ‘strangers in
their own land’ today (see especially Chapter 8). It should also be noted that the brief
discussion of genocide in his article does not include the possibility of ‘wilful blindness’,
an important category I proposed in Chapter 7 and elsewhere (Westra, 2004a).
Even the US, in its ‘Restatement (Third) of the Foreign Relations Law of the United
States’ says:

A State violated international law, as a matter of state policy, when it practices,

encourages or condones

 genocide,
 slavery or slave trade,
 the murder or causing the disappearance of individuals,
 torture or other cruel, inhumane or degrading treatment or punishment,
 prolonged arbitrary detention,
 systematic racial discrimination, or
 a consistent pattern of gross violations of internationally recognized human rights.3

The United Nations Draft Declaration on the Rights of Indigenous Peoples,4 lists the
activities against indigenous peoples already noted in this work, including the actions
which have ‘the aim or effect of depriving them of their integrity as distinct peoples or
of their cultural or ethnic identities’; a particularly important statement, as the intent or
motive is not required, just the ‘effect’ produced. Perhaps then, the ‘intent to destroy’,
an element of genocide, may be understood in a similar way. Unfortunately, the draft
 INDIGENOUS HUMAN RIGHTS & THE OBLIGATIONS OF STATE & NON-STATE ACTORS 221

convention remains a ‘draft’ to date, despite the evidence and despite the fact that with
the UN Draft:

. . . a compelling argument was presented to the world that the Ache and other indigenous
groups in Paraguay were the victims of genocidal acts by the government seeking to
promote TNC oil exploration on Ancestral Lands. The Ache are now considered an
extinct cultural group. (Geer, 1998)

The Draft Declaration on the Rights of Indigenous Peoples has ‘aim or effect’ language
for acts of cultural genocide, instead of the classic ‘intent to destroy’, and perhaps this
change might be part of what makes it so difficult for the wealthy nations of the North
to adopt this document.
There is a further element that is almost always left unchallenged, namely, the
legality (and morality) of the corporate activity itself, even before considering how and
where it should or could be done. We can consider the concept of ecological footprint
analysis (EFA). William Rees (2006) explains that EFA quantifies:

. . . the total ecosystem area that the population effectively ‘appropriates’ to meet its
final demand for economic goods and services, including the area it needs to provide
its share of certain (normally free) land and water-based services of nature such as the
carbon sinks function.

This clarification provides the ‘bridge’ between EFA and the law: the language of
‘appropriation’, especially when it addresses ‘nature’s services’ (Daily, 1997); that is,
the services provided to humans by water and land (and I would add air, which could
be affected by effluents that render it unhealthy, as in Azerbaijan, for example).
There are, at the outset, two separate issues that must be considered: first, the question
of rightful ownership/possession; and second, the problem of the commons (Westra,
2004b). The first issue considers whether the ‘appropriation’ involved a legal contract
of purchase, taking into consideration the conditions prevailing in such contracts, such
as full disclosure of all information relative to the goods to be appropriated, and free
consent on the part of the ‘seller’ whose property has been ‘appropriated’. Unless such
conditions are met, any purchase contract is null and void.
The problem of the appropriation from the global commons is even more complex
and many questions arise about the legitimacy of such appropriation when harm may be
perpetrated not only to humans, immediately, but also to the environment and hence
to their habitat, the future of human health and normal function, and the territorial
integrity of neighbouring countries, especially in North–South dealings (Westra,
2004a).5
On this second issue, the North–South interaction in respect of both resources and
wastes is highly problematic and most often involves gross breaches of human rights
(Westra, 2006).6 When people are unconsenting targets of such forms of ‘appropriation’,
then crimes are being committed and we need to review the instruments in existence
intended to redress or, even better, to prevent these wrongs.
In Chapter 4, the difference between ‘consultation’ and ‘consent’ was discussed
against the background of major sources of funding of TNCs’ harmful large projects,
that is, the World Bank Group and the IMF. Lacking either fair procedures in any
222 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

meaningful sense of the term, or just outcomes, the resulting corporate activities appear
to be conducted in the commission of another crime, that of ‘illegal appropriation’ of
others’ property, and hence, to put it bluntly, theft.
As the basis for the activity’s legality itself appears to be shaky at best, the subsequent
effects of the activity ought to be viewed far more severely than they presently are. Of
course, this is simply a general statement, and each case would require a thorough
assessment of the antecedents of each specific activity, although Geer’s (1998)
description of the ‘order of business’ listed above indicates the normal framework of
steps that must be taken prior to the commencement of any activity. Neither a legal
study of the ownership of the territory in question, nor a medical/epidemiological
study of the effect to be anticipated, are included.
Still on the question of corporate activities, in Chapter 3 the ‘wrong turn’ promoted
by the 18th century work of de Vattel (1758) was discussed. The idea of permitting
‘states’ to be ‘subjects’ of natural law principles, like human individuals, not only
represented a complete misunderstanding of the strength and reach of natural law
(Westra, 2004a), but it also set a ‘precedent’ of sorts, possibly paving the way for the
eventual ‘personhood’ of corporations.7
Recent Canadian case law is not fully taking one side or the other on the question
of whether the Canada Charter of Rights and Freedoms (S.15(1)) entitles corporations,
as well as natural persons, to enjoy ‘equality’ and ‘protection’ in similar ways (Gertner,
1986). Some of the ‘prohibited grounds of discrimination listed in s.15(1) obviously
have no applications to corporations (for example, race, colour, religion)’ (Gertner,
1986).
Prior to the existence of the charter, the Canadian Bill of Rights8 was cited in similar
cases. For instance, in R. v. Colgate-Palmolive Ltd,9 the court observed:

It seems clear from the context of s.1 of the Canadian Bill of Rights, with its reference
to ‘discrimination by reason of race, national origin, colour, religion or sex’ and
its reference to the ‘right of the individual to life, liberty, security of the person and
enjoyment of property’, ‘the right of the individual to equality before the law and the
protection of the law’; to ‘freedom of religion’; ‘freedom of speech’, ‘of assembly and
association’ and the ‘freedom of the press’ that reference is made to natural person and
not to corporations.

With the advent of the Canadian Charter, the courts have moved towards more, rather
than less, protectionism for corporations. In general, the courts have leaned towards
interpreting the charter in ‘the way most favourable to the subject’(Gertner, 1986) with
some notable exceptions.10
We have also seen the clear support of corporate and institutional ‘rights’ in US
law, at least in the ATCA jurisprudence discussed in Chapter 5. Later in the chapter,
I pull together the arguments advanced in each of the previous chapters in order
to build a case not only for corporate responsibility, but for corporate criminality as
well, after reviewing the reasons why the protection of indigenous peoples represents
an obligation of erga omnes character, and hence an obligation of states that is both
domestic and international.
 INDIGENOUS HUMAN RIGHTS & THE OBLIGATIONS OF STATE & NON-STATE ACTORS 223

INTERNATIONAL OBLIGATIONS ERGA OMNES AS

APPLIED TO INDIGENOUS PEOPLES’ RIGHTS

. . . according to Judge Weeramantry, the test of the performance of an international

obligation (and specifically the obligation erga omnes to respect self-determination)
would be compliance not only with the particular directions or prohibitions that it may
contain, but also with its ‘underlying norms or principles’. (Ragazzi, 1997)11

Whether the non-derogable obligation is that of a corporation, institution or national

state, they are all clearly implicated in the activities that harm the physical and cultural
existence of indigenous peoples. The classic locus of erga omnes obligations, is found
in the dictum of the Barcelona Traction Light and Power case, where the phrase ‘basic
human rights’ appears.12 Both principles and rules are coming into play here, so that
‘the propositions that obligations erga omnes may derive in general not only from rules,
but also from principles introduces an element of analogy with jus cogens’ (Ragazzi,
1997).13
The Barcelona dictum lists several examples of obligations erga omnes. The first
is ‘outlawing of acts of aggression’,14 intended to eliminate interstate ‘threat or use
of force against the territorial integrity or political independence of any State’, now
existing as a rule of jus cogens, although it is clear that the form of aggression that
is meant was the example of one state invading another with its armed forces. This
understanding does not preclude all other kinds of uses of force, as self-defence is
permitted and viewed as justified, although I do not believe that pre-emptive strikes are
equally justified (Ragazzi, 1997).15
The second example is the ‘outlawing of genocide’, and we have discussed the
question of genocide in relation to indigenous rights several times in the earlier chapters
(especially Chapter 7). The third example, ‘the protection from slavery’ is relevant
to several of the cases tried under ATCA (see Chapter 5). But perhaps the strongest
example is the fourth one: ‘protection from racial discrimination’, a particularly obvious
erga omnes obligation, together with ‘genocide’ and non-warlike ‘acts of aggression’ in
regard to aboriginal peoples.

The erga omnes obligation to protect against racial discrimination

All modern democracies, as well as the conventions, treaties and declarations of

international law, explicitly protect human rights ‘for all without distinction as to race,
sex, language or religion’.16 The crux of the problem for aboriginal peoples is that
absolute equality with all others is not sufficient, as ‘equality’ in their case needs to be
qualified. The relation between aboriginal peoples and their lands is a sui generis one,
quite different from that of citizens who may simply purchase the land where their
home is built, but without therefore having that as their ‘cultural land’ (Geer, 1998)
because their possession does not support their culture, religion or a separate identity.
Ragazzi (1997) argues that the court had distinguished between ‘equality in
law’ and ‘equality in fact’, as ‘equality may require different treatment to achieve an
equilibrium between different situations’. Hence an objective justification is required
224 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

in order to admit differentiated treatment between racial groups, and such justification
must demonstrate the necessity of the differences. It is important also to keep in mind
that, as Richard Goldstein, chief prosecutor at the International Criminal Tribunal
for Yugoslavia indicated, ‘discrimination of any kind, anywhere, contains the seed of
genocide’ (Ragazzi, 1997).
It is therefore particularly important that when discrimination occurs it should
be viewed as a grave breach of international law, of an erga omnes obligation, not just
as a trade disagreement and at best a compensable one. At any rate, the prohibition
of racial discrimination is a non-derogable obligation, as Judge Tanaka clearly states:
‘States which do not recognize this principle [i.e. the protection of human rights] or
even deny its existence are nevertheless subject to its rule’.17

Can the four proposed candidates of obligations erga omnes

be extended?

. . . all four examples are those of obligations instrumental to the main political
objections of the present time, namely the preservation of peace and the promotion of
fundamental human rights, which in turn reflect basic goods (or moral values), first
and foremost life and human dignity. (Ragazzi, 1997)18

The fundamental human rights to life and respect for human dignity are basic to the
understanding of erga omnes obligations, so that not all human rights have the particular
character that might make them ‘fundamental’. But the right to have one’s normal
functions protected, to healthy development and to the respect for one’s life, all appear
to be basic and fundamental in the sense that no other right is as important as these
(Westra, 2004a). Our natural person, our biological integrity is inviolable, even more
obviously than the integrity of another nation’s territory.
Prohibition against all forms of genocide, attacks against the human person, en-
slavement, racially motivated maltreatment, are all based upon that principle. Hence
this is the main principle to keep in mind when we follow Ragazzi’s (1997) observation
that both ‘development law’, and ‘environmental law’ are ‘good candidates’ for further
developments in the concept of obligations erga omnes. As far as ‘development law’
is concerned, most conventions and court decisions regarding self-determination are
increasingly considered serious enough to transcend reciprocal obligation based on
agreement only.
The case law I have considered and discussed indicates that new approaches
are urgently needed, given the grave problems affecting indigenous peoples, and I
address this question in the next chapter. But it is clear that for both development
and environment, the traditional approaches, at least as they are practised today, are
insufficient and justice is not served.

Brownlie remarked that pollution of the atmosphere and the high seas is such a dispersed
and gradual process that a traditional approach based on liability can hardly lead to
positive results because of the difficulties, for example, of identifying the tortfeasor and
establishing the evidences of causation. (Ragazzi, 1997)
 INDIGENOUS HUMAN RIGHTS & THE OBLIGATIONS OF STATE & NON-STATE ACTORS 225

Ragazzi appeals to intergenerational rights, citing Edith Brown-Weiss (1984) (Westra,

2006). Brownlie’s work, however, is more oriented to ‘customary rules’ than it is to
non-derogable ones. Nevertheless the same problem is equally present for the multiple
actors and multiple cases apparent in the case law regarding indigenous peoples and
their so-called ‘development’.
Valencia-Ospina (1944), over 40 years before Brownlie’s remarks, pointed out ‘that
the current problems of international environmental law clearly show the need for a
departure from traditional rules of standing’. In addition, as we have seen, environmental
and indigenous developmental law are too clearly interwoven to separate fully, although
there are some cases that deal with torture, forcible removal and the like, where their
environment or territory is perhaps secondary in some sense (see Chapter 5).
Nevertheless, even in 1998, the full complement of harms due to pollution, climate
change and the forced acceptance of ‘development’, fostered by mining and other
extractive industries, was present, though perhaps less obviously so than it is now. Today
we need to move forcefully in the direction of establishing full responsibility for these
harms through erga omnes obligations, so that the imperative to avoid and to cease does
not have to be fought laboriously and endlessly by corporations, while the victims’
plight is not eased. I proposed that neither ‘liability’ nor ‘tort’ regimes, but criminal
ones would and should be most appropriate to deal with eco-crime (Westra, 2004a).
If it is not always possible to isolate one corporate criminal for each case, or one
complicit government, but if the criminal effects follow upon the actions and inactions
of many, then the first step must be to revise the way these crimes are understood,
codified and tried. Adding non-derogable obligations to desist from hazardous activities
to the present short arsenal of obligations erga omnes before these activities kill or inflict
disease and abnormal development, appears to be the only solution, and some of the
literature already points in that direction (Dupuy, 1991a; Ragazzi, 1997). Christopher
Cline applies this approach directly to indigenous peoples. He argues that ‘global unity
. . . requires global law’, and that, despite the presence of a large body of international
human rights law, ‘many nations have refused to either recognize or obey such law’
(Cline, 1991). Further he argues that the disregard for these laws is particularly obvious
when states deal with indigenous tribes and communities. Commercial enterprises often
violate these groups’ rights to their ‘religion and culture’ through unwanted intrusion
and activities in their territories.
These rights ought to be recognized under international law jus cogens, ‘and the
actions that affect their rights to maintain their religion and culture [could be charac-
terized as] a denial of self-determination, an act of apartheid, and ultimately cultural
genocide’ (Cline, 1991; see also Lyng v. NW Indian Cemetery Protective Association, 485 US
439 (1988), and discussion in Rievman, 1989).

Further considerations on international obligations of states

. . . si l’on se tourne a présent non plus vers les propositions normative mais vers
la pratique, on constate tout au contraire que non seulement l’avenment de la
responsabilité objective de l’État pour dommage catastrophique est loin d’être advenu
mais encore que l’État se tient le plus souvent a l’écart de toute intervention directe
dans l’allocation des réparations. (Dupuy, 1991b)
226 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Even today, this remains the gravest problem: despite the presence of erga omnes
obligations in law, and despite the ease with which these may also be understood to
fit the crimes against indigenous peoples, for the most part states work to distance
themselves from any responsibility for the consequences of activities presently not
forbidden by international law (Handl, 1985; Magraw, 1986).
Before turning away from state responsibility to corporate/institutional responsi-
bility, I should stress one major point: in this work ‘responsibility’ is used in two senses,
each of which will be clarified by the context in which it is used:

1 The public international law term to indicate the legal state of affairs, following a
breach of state obligation;
2 As a moral term to indicate the general duty or obligations owed to those who are
or might have been harmed by an activity on the part of those who initiated that
activity or sanctioned it.

In addition, however, the emphasis of the previous pages on the importance of erga
omnes obligations, which are entirely principled, shows that the moral aspect of
‘responsibility’ may not be fully separated from its sense in international law. In fact,
erga omnes obligations must be retained, especially for the injurious consequences arising
from activities not prohibited by international law:

In a shrinking world, where any activity that modifies fragile ecological patterns tends
to have repercussions beyond national borderlines, it becomes even more necessary
to establish standards suited to save those natural cycles and thereby to ensure the
foundations of human survival. (Tomuschat, 1991)

State responsibility arises both when an unlawful act has been committed and when
there are harmful consequences from legal activities. In both cases jus cogens norms can
be invoked to deal with environmental damage (Ago, 1990; Tanzi, 1987). Two points
must be clarified before proceeding. First, on the question of fault v. consequences,
the hostages case in United States v. Iran (1980 ICJ 3, at 69, 70) shows that the duty
of the Iranian government was to take ‘every appropriate step’ to bring ‘the flagrant
infringements’ of international law to a speedy resolution. In fact, ‘No such step was
taken’, although states have the duty to regulate private actors in their territory. In
this case it appears that the fault element makes an even stronger case that ‘Iran had
violated . . . its obligation toward the United States’ (Kindred et al, 2000). Another
point of clarification is that of moral implications of jus cogens norms beyond their legal
status.
In Wiwa v. Royal Shell Petroleum (ATCA, March 2002), for instance, it is clear that
because no state was involved, one could not bring a case against Shell for the breach
of a treaty obligation. Shell had to be charged with the breach of erga omnes obligations,
supported by jus cogens norms, because of the moral and legal principles they violated
in flagrant conflict with international law, especially ‘crimes against humanity’. The
second problem is the possibility that although the harm is visible and present, the
act that generated the harmful consequences was itself legal. The classic example is
once again the Trail Smelter Arbitration. As various forms of technology become more
widespread and complex, the environmental harm that ensues, whether it is immediate
 INDIGENOUS HUMAN RIGHTS & THE OBLIGATIONS OF STATE & NON-STATE ACTORS 227

or (as is most often the case) delayed, it becomes precisely what this work suggests: a
legal, institutionalized form of violence, producing harms that are often irreversible.
The problem of trans-boundary harm was first considered in a study by a sub-
committee of the International Law Commission in 1963 to deal with the ‘conspicuous
gap’ left in international law by the exclusion of ‘liability that derives from . . . legal
grounds’ (Tomuschat, 1991). Several rapporteurs and many iterations of that particular
aspect of state responsibility uncovered some major points. First, states are in a position
to control specific activities. Hence, they should bear responsibility for the consequences
arising from such activities. This appears unobjectionable. The second point, however,
is more debatable, as it raises the question of trans-boundary liability for the ‘global
commons’, as introduced by Rapporteur Barboza (1989 ILC Rep. 242, para. 348).
The third point follows upon the other two: often negative effects are produced that
reach well beyond the intended effects, thus producing a ‘normative gap’ that ought
to be addressed by international law (Tomuschat, 1991). Fourth, modern scientific
developments have indicated the immense scope of environmental problems such as
climate change, global warming or biogenetic engineering, all of which are ‘dangerous
activities’ and ‘for whose consequences states must bear full responsibility’ (Tomuschat,
1991). Last, whether the dangerous activities are undertaken by public or private
sources, states must ensure that they assume full responsibility for all activities that
place human rights in jeopardy. In addition, no private person or institution can ensure
prevention, a responsibilty that lies with the state:

Experience has taught that more often than not damage to the environment cannot be
made good after it has occurred. When a species of animals has disappeared it cannot
be revived again. Soil that has been contaminated may have to rest for decades before
it can be recultivated. Radioactive particles that have escaped a nuclear installation
pose a threat to their environment as long as their radiation continues. The ozone
layer, once destroyed may never build up again. Thus the primary goal must be to
prevent harm from occurring. Second, pollution caused by a major disaster, but also
pollution caused by accumulation, may easily take on such huge dimensions that both
in financial and in technological terms, reparation is simply impossible. (Tomuschat,
1991)

Against this background, we can consider now some specifics. The elements of the
International Law Commission (ILC) Convention’s work on legal trans-boundary envi-
ronmental harm were ‘prevention, co-operation, and strict liability for harm’, but they
were considered ‘too controversial’ (Birnie and Boyle, 2002). The 2001 amended draft
of this convention19 divided the topic into two parts, ‘prevention and liability’, and the
main concern remained with the former (Birnie and Boyle, 2002). Although the latest
draft prescribes ‘all appropriate measures that must be taken to prevent or minimize
the risk’, it does nothing to prohibit the activities that give rise to trans-boundary harm
(Birnie and Boyle, 2002).
Risk itself ‘is defined to encompass both “a low probability of causing disastrous
harm” and “a high probability of causing significant harm”’ (Birnie and Boyle, 2002).
However, neither ‘disastrous’ or ‘significant’ are defined, and neither international
lawyers, nor judges nor even scientists can hope to express with any certainty what
might constitute the desired ‘clear and convincing’ scientific proof of possible harm.
228 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

But there remains a radical conflict between the sonorous proclamations and the
normatively powerful preambles of international instruments noted in the previous
chapters, and the ‘persistent silence’ of state practices, intent on ‘seizing all occasions
and all pretexts to disappear behind private persons instead’ (Dupuy, 1991a, author’s
translation). In order to foster any hope that state practice might change, it will be
vital to ensure that erga omnes obligations are clearly entrenched in international law
regarding environmental and developmental issues.

THE OBLIGATIONS OF NON-STATE ACTORS:

SOME GENERAL REMARKS

Recognizing that even though States have the primary responsibility to promote,
secure the fulfillment of respect, ensure respect and protect human rights, transnational
corporations and other business enterprises, as organs of society, are also responsible
for promoting and securing human rights set forth in the Universal Declaration of
Human Rights.20

The third paragraph of the ‘Preamble’ here cited makes several important points.
First, it is part of a document stating ‘norms’, not suggestions, or trying to achieve
an agreement. Second, it bases its statement of ‘norms’ (normally thought of as non-
derogable and not as optional choices, at least in moral discourse), on the fact that
corporations and other business enterprises are ‘organs of society’, that is, they are
not arising spontaneously, like mushrooms after the rain. They must fulfil certain
bureaucratic requirements in order to register their name and the purpose of their
association, and they must declare whether they intend to request incorporated status
to be able to assume their ‘right’ to operate. Hence, it would seem obvious that, at least
in principle, the permission granted by society ought not to include the ‘rights’ to harm
the society that gave it birth. Moreover, if the proposed activities also involve criminal
or quasi-criminal actions, there should be clear mechanisms available to withdraw their
licence to operate, as a drunk driver may have his licence revoked if he does serious
harm.
International legal regimes ensure that criminals may not operate with impunity
when moving from one country to another, although such movement may well shield
them, at least for a time. But TNCs, unlike individual criminals, do not hide. They
advertise, they market, they openly promote themselves and their products, although
they are not so open about the harmful implications of their products and operations.
Hence the pivotal importance of clearly stating and declaring their obligations, and
the erga omnes character of the protection of human rights that are unavoidably their
responsibility.

First considerations: Negligence and conspiracy

Negligence . . . essentially consists in the mental attitude of undue indifference with

respect to one’s conduct and its consequences. . . Negligence, as so defined is rightly
 INDIGENOUS HUMAN RIGHTS & THE OBLIGATIONS OF STATE & NON-STATE ACTORS 229

treated as a form of mens rea, standing side-by-side with wrongful intention as a

formal ground of responsibility. (Salmond, 1924; see also Edgerton, 1927).

If negligence is indeed a form of mens rea, then the connection between the result
of corporate activities, the consequences that are not desired as a deliberate goal of
those actions, but result from those actions nevertheless, are the responsibility of the
corporation. The corporations involved are ‘nevertheless indifferent or careless’ whether
or not the consequences ensue, as they do not ‘refrain from the act notwithstanding
the risk’ (Edgerton, 1927). This understanding of negligence reinforces the proposed
requirement to consider full criminality for these corporate activities, based on the
presence of this form of mens rea.
In addition, one may consider that, just as the classic locus for trans-border harm
is Trail Smelter for international law, the classic locus for domestic responsibility for
harm in common law is Rylands v. Fletcher.21 Without a detailed analysis of that case, the
main point is that the impact of TNCs on indigenous peoples is almost always based on
activities that reflect what that British court termed ‘non-natural use’ (Newark, 1961),
that is, an activity that involves a treatment of land that may result in harms of any kinds,
when it is not a ‘natural use’, ensures that the actor(s) is responsible for the harm:

If the owner of the land used it for any purpose which from its character may be called
non-natural use, such as for example the introduction onto the land of something
which in the natural condition of the land is not upon it, he does so at his peril.
(Newark, 1961)

It is worthy of note that it is the owner’s land and action that are at stake in this classic
case, not, as in present cases, the impact of TNCs’ activities on the ancestral lands of
indigenous peoples. It is that question of ‘ownership’ that is also problematic, while the
responsibility remains.
Nevertheless the simplicity of the case where there is one person directing and
ordering the activity is not available in corporate land use cases, as many different
people, institutions and organizations may be involved. An old case from the British
Columbia Court of Appeal makes the case for complicity very well. In Rex v. Dunbar,22 Mr
Dunbar was the one chosen to drive the ‘getaway’ car, while three confederates entered
a branch of the Canadian Bank of Commerce and executed a planned robbery, during
which one of the tellers was shot. Dunbar claimed he had been coerced into driving the
car, and while he had been told simply to circle the block twice before returning, he was
not sure about the robbery and certainly knew nothing about the killing, as he had not
been there when it happened. A report on the original ‘directions’ given by the court
regarding the understanding of the case state:

There is an aspect of law which is outstanding in this case, and it is this, that if two
or more join to commit a felony, to rob a bank which involves violence, and the violence
be shown as such that any reasonable person must have thought it likely that injury
would befall the person towards whom the violence was to be exercised, injury of such a
character as might cause death, then all person participating in or inciting the crime
are guilty of murder if death ensues.23
230 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

This passage brings up the question of ‘common intention’, as well as that of ‘concerted
action’.24 The question may well remain open on whether a charge of manslaughter
or one of murder may be more appropriate, but in general, collective plans, even
participation in a common plan or conspiracy, are sufficient to establish criminal
guilt.
This approach to common criminality can also be found in humanitarian law.
Speaking of the Charter of the International Military Tribunal at Nuremberg (1947),
Richard Wasserstrom (1974) writes, ‘Conspiracy to do certain things is itself a crime.
But even more than this, responsibility is derived from membership in a group.’ The
language of culpable conspiracy, such as ‘encouraging’, ‘enticing’, but most of all,
‘enabling’, fits well with being part of a group or of a collectivity like a multinational
corporation. In 2003, the Canadian Criminal Code had an important addition made to
it, which is worth considering. On 7 November 2003, the final draft of An Act to Amend
the Criminal Code S.C. 2003, C.21 (formerly Bill C-45) was completed and received Royal
Assent (and thus became law). This bill addressed some of the lacunae and limitations
of the Canadian Criminal Code, amending the language of several sections with that
aim in mind (see also Chapter 5). Corporations were originally formed and given a
juridical personality separate from that of the aggregate of their officers, shareholders,
employees and agents for one reason only: to ensure their economic protection, thus to
encourage investment in their activities. It was never the intention of the legislators and
the courts to declare that corporations would be granted a new form of immunity from
criminal prosecution, similar to the immunity enjoyed by the representatives of states
and those involved in activities on behalf of various nations. Thus criminal prosecution
should equally be available when the accused is an organization, that is, a group joined
in a common purpose as well as a corporation. The example given in Bill C-45 is that of
a municipality. The substitution of ‘organization’ for ‘corporation’ in several sections
of the Criminal Code is one of the objectives of Bill C-45.
Another main objective of Bill C-45 is to address the question of mens rea, which
posed a serious difficulty for any court attempting to impose criminal liability on an
organization, as was discussed in Chapters 4 and 5. The inability to ascribe the requisite
form of criminal intent on the part of corporations and associations, ensured that a wide
array of regulatory breaches of workplace safety and public health or environmental
offences would be viewed as ‘quasi-crimes’, rather than ‘true crimes’.
This work has argued for other forms of mens rea, and it is gratifying to realize
that, although there is no case law at this time based on Bill C-45, many of the changes
proposed earlier as possible lex ferenda have now acquired the status of lex lata instead.
The main changes effected to the Criminal Code are as follows:

S 1. (1) extends the definition of ‘every one,’ ‘person,’ and ‘owner’ to include ‘an
organization.’ In turn, ‘organization’ means’
(2) (a) a public body, body corporate, society, company, firm, partnership, trade union
or municipality, or
(b) an association of persons that
(i) is created for a common purpose,
(ii) has an operational structure, and
(iii) holds itself out to the public as an association of persons.
 INDIGENOUS HUMAN RIGHTS & THE OBLIGATIONS OF STATE & NON-STATE ACTORS 231

Here, and in the amendments to section 22.1, Bill C-45 ensures that a wide array of
actors within an organization may be viewed as responsible for an offence, ‘whether by
act or omission’ (section 22.1 (ii)); it also ensures that if the prosecution is required ‘to
prove fault other than negligence’ (section 22.2), then senior officers or representatives
may manifest the requisite ‘mental state’ also by ‘(c) knowing that a representative
of the organization is or is about to be a party to the offence, or does not take all
reasonable measures to stop them from being a party to the offence’. The bill also adds
section 217.1 to define ‘the legal duty to take reasonable steps to prevent bodily harm’
on the part of anyone who is in the position to direct and order how work is to be done
(see also discussion in Chapter 5). Thus far neither international humanitarian law,
nor Canadian criminal law has been applied to corporate crime against indigenous
peoples.
Most often, obscuring language is used to describe the factual component of cases
involving indigenous groups, not only in the courts, but also in the literature, by those
attempting to address these issues. For instance, Mark Stallworthy’s (2006) recent work
is instructive in this regard:

. . . environmental protection measures can often conflict with other important

priorities. Unsurprisingly, problems are encountered when we seek to value the costs of
environmental harm against other economic and social interest.

The question of course is, whose harm and whose economic and social interests?
Stallworthy (2006) acknowledges that ‘There are political dimensions to public risk’
and that the present ‘burden of proof’ regulations ‘tend to favour risk creators’ (see
also Savant and Aranda, 1994).
A recent example of treatment of ‘risk creators’ at the hand of the law, is the March
2007 dumping of hazardous waste in Abidijan, Ivory Coast.25 The ship Probo/Koala,
registered in Panama, was chartered by Trafigura Trading Company. Trafigura’s aim
was to produce petrol on the high sea, resulting in hazardous waste as a by-product. The
petrol was to be shipped to Nigeria and sold there. But the ship docked at Amsterdam,
and there was an attempt to unload the hazardous waste on shore (at least in part),
contrary to EU laws. Equally illegal was the fact that the waste was eventually brought back
on board, without the required special licence, when it transpired that dumping fees
would have been too high. Hence the ‘poison drama’ continued to unfold when Dutch
harbour officials were charged, as well as those who approved the eventual dumping
in Abidijan. So far, there have been 15 casualties resulting from the dumping, and the
numbers of injuries are uncertain. At least 4000 to 5000 victims are now preparing a
multi-million collective claim for compensation for their damages. The Dutch Ministry
of the Environment is currently investigating the case and an international order for
the arrest of the captain of the vessel has been issued. However, Trafigura Trading
Company has settled with the Ivory Coast authorities for about €150 million, and the
employees that had been arrested, have been released as part of that deal.
This case does not involve harm to a specific indigenous population, but the
difficulties of preventing such a disaster, as well as the obstacles to the achievement of a
just resolution of the case, are extremely instructive. Mr Ruessink of the Dutch Ministry
of the Environment terms this event, ‘the tip of the iceberg’, and states that dumping
232 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

laws must be changed. The report of the Hulsof Commission, charged with investigating
these events, concurs. The law regarding the discharge of toxic material is extremely
complicated, with over 15 separate laws, regulations and licensing procedures, and
most are inconsistent.
In addition, the definition of waste is equally unclear, and the various departments
and ministries involved are often at odds with one another on those issues. Toxic waste is
hard to control, especially because so many borders have been eliminated, and because
organized crime is now involved in that trade. Hence it is necessary to establish clear
definitions and easy-to-follow regulatory regimes to ensure the protection of human
rights everywhere.
The main problem, as noted already, is that the consequences of impacts on
indigenous peoples, which are both spatially and temporally removed, as well as arising
from multiple and diffuse sources (Stallworthy, 2006), are still viewed as though the
sustainability objectives sought are still part of yet another economic activity. But to
recognize that the impacts are breaches of fundamental human rights, rather than
economic issues, is to concede the justice of the arguments reviewed in this work. It is
also to accept that for indigenous peoples, any impact on their territory is not a more
or less favourable real estate or other business deal, and it is never simply a question
of economics. In each and every case, it is a question of survival, of respect for their
culture and identity, of the protection of their history, but also of their health, their
normal function and their future.
It is the original classification (or misclassification) that directs the impeccably
argued follow-up, in the cases cited: if a duck is defined as a mammal, none of the
observations that follow will apply. Hence the efforts in this work to recognize the
true import of the harms perpetrated on indigenous peoples, so that only after those
harms are fully understood there might be a hope of enacting just regulatory regimes
to correct the present situation. Stallworthy (2006) also recognizes this need: ‘In the
end, though incremental adjustments are possible, we look to regulations for real shifts
in direction.’

INDIGENOUS PEOPLES IN NATURE AND

CORPORATE RESPONSIBILITY

Humankind is engulfed by the planetary environment, even while people tend to behave
as if they were outside of nature. In antiquity, all was sacred, except humankind.
Mountains, springs, water, the winds and the sea were deified; the people did not
enjoy any particular rights. With the advent of Judaeo-Christian civilization and
humanism, this relationship has been reversed and Man alone is sacred. (Dupuy,
1991b)

The gravity of the impact of corporate activities on indigenous communities can only
be understood when we acknowledge the reality of the human condition regarding
the natural world, and we then combine that understanding with the specific circum-
stances of those communities. In principle at least, the rest of us can move away when
 INDIGENOUS HUMAN RIGHTS & THE OBLIGATIONS OF STATE & NON-STATE ACTORS 233

environmental degradation threatens us. That, however, is not entirely true, or not
equally true for rich and poor. Those of us who can influence to some degree the
political and environmental decisions of the powerful home countries where TNCs
originate, are also, marginally, better off.
Indigenous peoples are entirely vulnerable instead: they cannot move, they cannot
make decisions about the activities that affect them, they cannot even say ‘no’ (as noted
in Chapter 4) to the consultation process, and cannot say ‘no’ to the outcome of the
process. So, if it seems that appealing to criminal laws, and to jus cogens norms is too
radical an approach, their extreme vulnerability should explain the extreme tone
of some of the conclusions reached here. If, per absurdum, we could substitute large
communities of women for the same numbers of indigenous peoples, male and female,
the present circumstances and treatment would not be tolerated, either in domestic or
in international law.
Much has been written about self-determination and cultural integrity in the
literature about aboriginal peoples. In the first chapter, a more basic right was pro-
posed, the right to biological/ecological integrity, and the full implications of the
double aspects of that right should be our main focus now, as all other rights are
practically meaningless without it. The double aspect referred to is that both biological
or individual integrity is at stake (though the attacks on health and normal function as
well as life itself we have noted), and ecological integrity or the integrity of their lands,
that is, their habitat is equally under attack.
In the last chapter, the plight of the Nunavut people was discussed. Like the
Nunavut people, other indigenous groups of North America – the Mohawk, Six Nations
and others – may have self-determination, but even with it, they still have no protection
against the force of corporate ‘collateralism’ (Leader, 2004). ‘Collateralism’ describes
the lack of focus of corporations on human rights, against the background of laws that
protect corporate freedom rather than victims. Leader (2004) discusses the example of
the ‘Baku-Ceyhan pipeline’ between the Caspian and the Mediterranean:

The company has thereby given ultimate priority to a right to a safe environment, but
it has given priority in adjustment to the property rights of its investors. It has sought
this adjustment not because it simply has a preference for building and operating the
pipeline at a profit, but because it feels this is its primary mandate. Health, safety, and
environmental protection thereby take their place as collateral concerns.

Collateralism is the public policy counterpart to the lack of legal responsibility. Like
wilful blindness or negligence, it is a state of mind. Given the ultimate results of that
attitude, I would consider it yet another component of mens rea. The corporation
does not deny the importance of human rights considerations, such as health or
environment, but does not give these rights priority. As Leader (2004) points out, the
roots of collateralism are to be found in a ‘functional outlook’, which essentially fixes
the boundaries and the scope of corporate responsibility. ‘For example the WTO is in
this functionalist view, primarily responsible to the producers of goods and services, who
will benefit from the exercise of its particular mandate’ (Leader, 2004). This ‘mandate’,
the main ‘necessity’ within corporate operations and the institutions and legal regimes
that support them, is related to ‘the central objective of a trading treaty: the integration
234 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

of markets’ (Leader, 2004). Whether or not it is a single corporate entity pursuing ‘the
integration of markets’, functionalism marginalizes all other human concerns, which
are viewed as ‘collateral’ to its main enterprise and goals.
Hence, the ‘attacks’ that ensue, are not ‘meant’ in the sense that the elimination
of an indigenous group is not the prime target of corporate operations. In some sense,
perhaps, the functionalist approach is even worse, as it renders indigenous peoples
invisible, nonentities, mere obstructions to be removed or manipulated with the least
possible fuss, in the service of corporate aims. In humanitarian law, when an offensive
is undertaken that may (and most often does) result in ‘collateral damage’, at least in
principle, any justification rests on the just war theory. In principle, there might be
some wars that could be justified in this manner, and the Second World War is often
cited as a possibility.
But it is hard to see under what conditions corporate activities could claim a
justification that might be strong enough for the ‘collateral effects of their operations’.
Neither the ‘integration of trade’ nor the resulting profits, nor even the production of
oil or gold, no matter how high the demand for these products, could possibly be cited
as justifying the grievous harms perpetrated.

The ‘third model’ for the protection of biological and ecological

integrity and eco-footprint appropriations
The lack of normative justification is the root cause of most of the problems encountered
by indigenous peoples as the industrialized world moves onto their territories, or even
just close to their lands. In Chapter 1 the role of buffer zones was discussed (Noss
and Cooperrider, 1994). Their importance cannot be overstated, although for some
environmental harms, even buffer zones are not enough for protection. Also in the
first chapter, the plight of the Aamjiwaang First Nation located in Ontario’s ‘Chemical
Valley’ near Sarnia was described. The pattern of abnormal births of that people did not
require a disaster or catastrophic event as explanation; the regular business operations
surrounding their lands were more than sufficient to result in the effects described
(Helstaedt, 2007).
The question is why are industrial operations with such dangerous effects legally
placed that close to human habitations occupied by First Nations? Consider instead
what happened in the UK. In January 2007 there was an outbreak of avian flu at a
turkey farm in England, later confirmed to be caused by the H5N1 virus that can be
transmitted to humans, potentially fatally. One of the several measures adopted almost
immediately, and well publicized by both Euronews and BBC television channels, was
the decision to establish a ten-kilometre buffer zone around the affected farm, to
minimize the likelihood of spreading the virus.
One wonders how many proven diseases, from cancers, to asthma, to reproductive
anomalies, even to DNA alterations, are necessary before provincial and federal
governments of Canada might decide to protect its aboriginal people with a buffer
zone surrounding their territory. Even better, why are these operations permitted in
their present hazardous form? And why are both the biological integrity of citizens and
the ecological integrity of their land and water not considered worthy of respect? The
same is true for other mining/extraction operations.
 INDIGENOUS HUMAN RIGHTS & THE OBLIGATIONS OF STATE & NON-STATE ACTORS 235

Of course, such rhetorical questions are not going to solve the problem, but they
might help us situate the reality of circumstances of indigenous peoples in context, so
that perhaps better regulatory regimes can be designed:

Notably, individuals living in Texaco’s former concession area in Ecuador were (and
are) not simply exposed to one toxin, but to a cocktail of various toxins. Thus the
effects of synergistic interactions of various toxins on human health must also be
considered. The simplest interaction is an additive effect. . . However a more complex
synergistic effect may also occur whereby the effects of two toxins acting together is
substantially greater and more harmful than the sum of their effects when being alone.
(Clapp et al, 2006)

Synergistic effects of multiple exposures are seldom, if ever, studied or taken in con-
sideration in feasibility studies, and neither are exposures of children and other sub-
populations with increased vulnerabilities.
Another example of industrial harms can be found in uranium mining (Eichtstaedt,
1994). The history of uranium mining in the four-corner area (Utah, Colorado, Arizona
and New Mexico, and the Navajo Reservation between the Grand Canyon and the
Petrified Forest National Park) appears to have been written in blood.
The evidence of the narrative is unequivocal. It is consistently one group and one
group alone that is targeted. I have termed this approach ‘institutionalized ecological
violence’. This form of violence does more than destroy the unfortunate miners
working in hazardous unventilated ‘dog holes’, accumulating in one week multiple
doses of the yearly maximum ‘safe’ radiation exposure in their bodies, and eventually
succumbing to untreatable cancer and other diseases. Some mill workers also had up
to 60 micrograms of uranium in their urine samples. The yellowcake dust they inhaled
and swallowed was making them radioactive from the inside out (Eichstaedt, 1994).
This intolerable violence also destroys families who attempt to survive on the pitiful
sums allotted to them, or with no compensation at all for surviving wives and children.
Finally, this same violence, discriminating against Native Americans, also attacks their
survival as a people, hence the appeal to genocide in this case. Although we all depend
on a healthy, non-toxic environment, native people have a particular right and claim
to the lands they inhabit and from which they assert their identity as a nation. Hence,
when the Navajo miners, their families and supporters took on the ‘fight for justice’,
requesting child support and simple compensation to survive, they were asking far less
than what should have been theirs by right:

at the age of forty, Peter Yazzie knew the end was near and was driven to a hospital
in Albuquerque. He died eight days later, on June 6, 1970. He left a home that was a
simple adobe Hogan heated with wood, a wife Dolores, age thirty-six, and ten children
ranging in age from two to eighteen. His wife began to collect $250.00 a month on
which to raise a family. (Eichstaedt, 1994)

The final injustices were disclosed in February 1993, when even the evident physical
damages to the miners were shown to have been calculated improperly. ‘(Dr Louise)
Abel demonstrated to the assembled doctors, lawyers and government officials that the
medical tests are inadequate’ (Eichstaedt, 1994).
236 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

This resulted in hundreds of miners being excluded from ‘compassion payments’

ordered by the Radiation Exposure Compensation Act of 1990. When a group is
singled out for special treatment that effectively eliminates most of their basic rights
to life, health and free information and consent, then all those involved are guilty
of complicity in the crimes perpetrated against them. Through each sad interview
describing the story of individual miners and their families (Eichstaedt, 1994), and
through the appendices detailing the hearing on radiation exposure and the Radiation
Exposure Compensation Act of 1990 (Eichstaedt, 1994), the story that unfolds is one
that should fill everyone with shame. Nor is the US the only country with that problem.
A report by Minchin and Murdoch (2006) relates a similar story in Australia:

Cancer rates among Aborigines near Australia’s biggest uranium mine, according to
a study by the Federal Government’s leading indigenous research body, appear to be
almost double the normal rate. The study also found there had been no monitoring in
the past 20 years of the Ranger mine’s impact on the health of local indigenous peoples.
Yet since 1981 there have been more than 120 spillages and leaks of contaminated
water at the mine located in the World Heritage listed Kakadu National Park.

Energy Resources of Australia (majority owned by Rio Tinto), which operates the mine,
denied that the Aboriginal peoples in the area were exposed to radiation, and in fact
announced that the mine would continue to operate until 2020, despite the fact that:

. . . [a] study compared Aboringines diagnosed with cancer in the Kakadu region with
the cancer rate among all Aboriginal peoples in the Northern Territory from 1994 to
2003. It found the diagnosis rate was 90 percent higher than expected in the Kakadu
region. (Minchin and Murdoch, 2006)

In this case too, neither the corporation(s) responsible for the extractive activities, nor
the Australian government that allowed and, in fact, defended this operation, accepted
responsibility for the harms they had perpetrated or attempted to close the mine and
redress the injustice for which they shared responsibility.
Examples can be multiplied, and the factual recitations of aboriginal groups in
the ATCA cases reviewed earlier bear witness to a number of similar exposures. Thus,
it is neither the facts nor the science that are lacking, but the functionalist approach
of industry and institutions that needs to accept the scientific reality and enact the
required corrections.
The cultural integrity protection that is already present in international law, though
insufficient in itself, opens the door to the ecological integrity aspect of the model of
protection proposed here. The land’s integrity is necessary to ensure the continuation
of cultural and religious practices, traditional lifestyles, and even traditional knowledge,
as noted in the discussion of Arctic peoples in Chapter 8.
Thus, if cultural integrity requires ecological integrity, the latter has a twofold
function. It serves to support the ongoing identity of aboriginal communities, but also
to ensure the protection of the health and normal development of those communities,
and hence their biological integrity too. Biological and ecological integrity cannot
be separated but must be viewed as an integrated whole. There may be other ways
 INDIGENOUS HUMAN RIGHTS & THE OBLIGATIONS OF STATE & NON-STATE ACTORS 237

of protecting people’s health and normal development/function, but, given the

circumstances of indigenous communities, there is no other way for them.
There is yet another aspect of cultural and ecological integrity that we have not
discussed, and that is its factual and symbolic aspects, representing a ‘critique’ of the
present overwhelming pressures of capitalism and globalization.

Indigenous peoples’ challenges to global domination by Western states

as fundamental challenges to the logic of capitalism

So the question remains how and why have indigenous peoples survived the onslaught
against them? In particular, why have they survived into the late twentieth century
and early twenty-first century when there are no regions remaining outside global
capitalism, and no regions that have not been claimed by one or more states? (Hall
and Fenelon, 2004)

This work by Hall and Fenelon (2004) includes a comprehensive critique of corporate
incursions on aboriginal rights, and of the non-accountability of states regarding this
ongoing phenomenon. Perhaps we need to look at the problem again not from the
standpoint of aboriginal peoples as victims, but from that of their own stand against
the forces that attempt to eliminate them. If we consider the ‘puzzle of continual
indigenous survival’ (Hall and Fenelon, 2004), we note that indigenous peoples have
survived a violent takeover, especially in North and South America, which included
both genocide and systematic exploitation as industrialization and globalization forced
themselves upon those communities.
At best, the violence was muted and indirect, as in the establishment of Indian
schools for their children, intent upon eliminating any form of ‘Indianness’ (Westra,
2006). Yet today everywhere and in each continent, there are still strong surviving
indigenous groups, from the Sami in Northern Europe to the Maori in New Zealand,
the Inuit in the north of Canada and the Kurds in west Asia and Turkey. They all insist,
with varying degrees of success, upon maintaining their identities and their cultural
and religious practices. But, as Hall and Fenelon (2004) argue, ‘Many of these practices
contradict, challenge, or threaten deeply held values in state-based systems.’
The greatest challenge to the globalizing capitalism that engulfs these indigenous
‘islands’ in the midst of modern states, is the fact that aboriginal peoples believe in
the communal ownership of resources, and hence they deny ‘the legitimacy of private
property rights’ (Hall and Fenelon, 2004). The main form of resistance to capitalism has
been the central importance of their ‘traditional culture’. This includes their customs,
crafts, religious ceremonies and their language.
More than formal ‘sovereignty’ or self-governance, important though these are,
the perpetuation of the traditional cultural integrity of each group represents a clear
and living ongoing rejection of capitalist values, starting with the inviolability of private
property, despite state efforts to alter or repress this ‘difference’.
‘Ethnocide and culturicide involve attempts to destroy a group’s identity, and/or
culture, without necessarily killing human beings’ (Hall and Fenelon, 2004). Yet the
aboriginal groups have resisted by refusing economic takeover, by remaining small
238 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

(for the most part), and by remaining isolated from globalizing pressures, unless the
encroachment upon them becomes too violent to resist. Hence, in addition to the
biological/physical integrity of individuals, and the multifaceted ecological integrity I
have discussed, their cultural integrity not only depends on both other aspects to survive,
but it also represents a symbol and a powerful tool of resistance to both capitalism and
globalization. Clearly, their example is not enough to change the rest of the world. In
the next chapter, I consider some other possible tools of change to establish regimes
that are truly capable of protecting indigenous communities.

NOTES

1 R. v. Hibbert ([1995] 2 SCR 973, 99 CCC (3rd) 193.

2 R. v. Paquette ([1977] 2 SCR 189 30 CCC 22417, rejected by the court, whereas it reaffirmed
Dunbar v. the King (1936).
3 Restatement (Third) of the Foreign Relations Law of the United States 702 (1987).
4 UN Rights Committee, Sub-Commission on Prevention of Discrimination and Protection
of Minorities, Res. 1994/44, 16 August 1994, UN Doc. E/CN, 4/1995/2, E/CN.4/
Sub.2/1994/56 (1994) Article 7.
5 Trail Smelter Arbitration.
6 Talisman case; Wiwa v. Royal Dutch Petroleum.
7 Santa Clara County v. Southern R.R. Corp (1886).
8 RSC 1970, App. III.
9 (1972), 8 CCC, (2d) 40, SCPR (2d) 179 (CA).
10 Surrey Credit Union v. Mendonca (1985), 67 BCLR 310 SC; Smith, Kline and French Laboratories
Ltd. T. et al v. A.-G. Canada (1985), 7 CPR (2d) 145 (FCTD), where Strayer states: ‘It is clear
that the term individual does not include bodies corporate.’
11 East Timor (Portugal v. Australia); IJC Reports 1995, p. 211.
12 Barcelona Traction, Light and Power Co. Ltd. Second Phase, Judgement, ICJ Reports 1970, p. 3,
para. 34; see also UN Charter, A.1, para. 3.
13 See also International Law Commission, Draft Articles on the Law of Treaties, pp. 67–8, para.
3. This paragraph lists the principles of self-determination as one of the suggested examples
of peremptory rules.
14 UN Charter, in force 24 October 1945, A.2, para. 4 cites the prohibition of the illegal use of
force.
15 Corfu Channel case, Merits, Judgement, ICJ Reports 1949, where the court found that Albania
was responsible for the explosions in the channel and the deaths that occurred; the court
also found that the UK passing through the channel did not ‘violate’ Albanian sovereignty,
but the setting of minesweeping operations did.
16 Charter of the United Nations, Article 1(3), 13(1)(b), 55(c), 56, 59 and 76(c).
17 ICJ Reports 1966, p.298.
18 See UN Charter’s opening paragraphs: ‘Peoples of the United Nations are determined to
save succeeding generations from the scourge of war and to reaffirm faith in fundamental
human rights.’
19 Report of the ILC (2001) GAOR A/56/10.
20 Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with Regard
to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003).
21 Rylands v. Fletcher (1865-68), 3H. and C. 744 (Exch.); L.R. 1 Ex.265 (Exch. Ch.); L.R.3 H.L.
330 (H.L.).
 INDIGENOUS HUMAN RIGHTS & THE OBLIGATIONS OF STATE & NON-STATE ACTORS 239

22 Rex v. Dunbar [1935] BCJ No. 6, [1936] 3 WWR 99, 51 BCR 20.
23 ibid.
24 ibid.
25 I am grateful to Henk Ruessink of the Environmental Ministry of the Netherlands for the
information on this ongoing case.
 CHAPTER 10

Governance for Global Integrity:

Present Instruments, Trends and Future Goals

REVIEW OF SOME PRESENT INSTRUMENTS FOR

THE PROTECTION OF INDIGENOUS PEOPLES

The evolution of environmental law and the development of human rights represent
the gradual erosion of the so-called exclusive national jurisdiction. Both international
environmental rights and international indigenous rights were developed as a response
from the international legal community to the nations’ inefficiencies in dealing with
those issues. (Kastrup, 1997)

Throughout this work, the multiple conflicts between indigenous peoples’ rights and
the environmental degradation to which they are exposed have emerged as a major
source of global disagreement. In 1993, the United Nations World Conference on
Human Rights issued a declaration1 in partial response to the ongoing discrimination
against aboriginal peoples. The main aspect of such discrimination is the lack of
environmental protection of their territories (Kastrup, 1997). Governments from the
Americas to Australia and New Zealand have not been doing enough, hence the need
for an international focus to bring about change.
In Chapter 8 we noted that the Lubicon Cree attempted to follow the road to the
UN, with theoretical success but not much change on the ground. On 19 February
2007, in Geneva, a UN committee started hearings that will include the case of the
Lubicon Cree. This new UN committee will focus on a different angle this time, that
is, on the elimination of racial discrimination, and hence on a violation on the part
of Canada (and of the oil corporation involved) of a jus cogens norm, not to be lightly
dismissed if the committee, whose work ends on 9 March, is to actually pronounce
on this issue. This is a very important development because normally environmental
racism is not taken seriously enough, even in developed democratic countries (see
Westra and Lawson, 2001).
Although environmental racism or, more generally, eco-crime (Westra, 2004a)
has not been codified either as a crime or even as a breach of erga omnes obligations,
international indigenous rights appear to be developing apace with international
environmental law (Kastrup, 1997). The most important early documents in this regard
are the Universal Declaration of Human Rights and the Stockholm Conference on
the Human Environment.2 In 1958, the Tehran Conference on Human Rights and, in
242 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

1977, the UN General Assembly Resolution3 both defended the interdependence of

human rights and their indivisibility.
An even clearer assessment of the global environmental problems and those of
human beings everywhere was provided by the 1992 Rio Declaration on Environment and
Development.4 The development of human rights instruments and that of environmental
international law, however, are parallel and, to some extent, complementary. But there
is no single instrument that emphasizes the unavoidable interconnection between the
two. At any rate, the UN Charter ‘represents the official adoption of the concept of jus
naturale by the international community’, as it sets forth the general human rights of all
mankind (Kastrup, 1997). In that manner, although not specifically named, indigenous
peoples were covered by the document, although ‘whether indigenous tribes should
be considered a “person” under international law’ remains an open question (Kastrup,
1997). Given the immense difficulties brought to jurisprudence by the acceptance of
that status for corporations and business institutions, it seems as though the acceptance
of communities and tribes as ‘persons’ would be a step forward when a conflict in the
courts involves both an indigenous community and one or more corporations.
After the Covenant on Civil and Political Rights and the Covenant on Economic,
Social and Political Rights, 5 the provisions of the Vienna Convention on the Law
of Treaties6 under Article 60(5) states that the principle of reciprocity and treaty
obligations may not be cited ‘for not complying with erga omnes obligations’ (Kastrup,
1997). Hence, fundamental rights, like the right to life, are accorded a status different
from that of other rights. The right to a safe/healthy environment, as was argued in the
previous chapters, should be understood simply as an extension of that right.
The 1972 Convention for the Protection of the World Cultural and Natural
Heritage7 is particularly relevant and discussed separately below. Important are
also the International Labour Organization Convention Concerning Indigenous
and Tribal Peoples in Independent Countries,8 discussed earlier, and the 1992 UN
Framework Convention on Biological Diversity,9 discussed in Chapter 8. However,
despite the numerous conventions and declarations, the UN designation of 1993 as
‘The International Year of Indigenous Peoples’, the Decade of Indigenous Peoples
(1994–2004), and a second Decade (2005–2015) adopted by the General Assembly
in December 2004, the situation of indigenous peoples and their environment have
continued to decline. Even the Rio Conference (1992) declaring its ‘twin aims’ of
eradicating poverty and protecting the integrity of the Earth’s ecosystems (Kastrup,
1997) did not make any appreciable difference.
It seems that there are at least two major reasons for this decline. The first is the
ongoing juxtaposition of poverty eradication and development, without any under-
standing of the connection between these issues and environmental protection. The
way these ‘goals’ are presently understood and codified in law are in direct conflict
with one another: the result is that the former issues (the eradication of poverty and
development) are almost always incompatible with the latter. So-called ‘development’
in aboriginal territories and in nearby areas is harmful and unwanted, for the most part,
nor does it lead to economic betterment of the aboriginal communities’ circumstances.
The expected enrichment is not theirs, but remains with the ‘developing’ corporate
actors and, at best, in some small measure with the complicit governments where the
indigenous peoples reside.
 GOVERNANCE FOR GLOBAL INTEGRITY 243

The second reason is the refusal to accept the scientific evidence on the connection
between ‘development’ processes and products and their health effects, as noted above,
and I return to this topic below. For now, it might be best to continue our overview of
some existing instruments, before turning to more radical proposals in conclusion.

THE CONVENTION FOR THE PROTECTION

OF THE WORLD CULTURAL AND NATURAL
HERITAGE AND ABORIGINAL RIGHTS

Toutes les manifestations des droits culturels de l’homme ont une y dimension indi-
viduelle (droit de l’individu) et une dimension collective (droit des groupes sociaux,
comme les peoples, les minorités, les populations autochtones).

[All examples of human cultural rights have an individual dimension (right of

the individual) and a collective dimension (right of social groups, such as peoples,
minorities, and indigenous populations).] (Scovazzi, 2007)

Article 1 of the Convention for the Protection of the World Cultural and Natural
Heritage defines ‘sites’ as ‘works of man or the combined works of nature and man, and
areas including archaeological sites which are of outstanding universal value from the
historical, aesthetic, ethnological or anthropological point of view’. Article 2 defines
the ‘natural heritage’ as:

 natural features consisting of physical and biological formations or groups of

such formations, which are of outstanding universal value from the aesthetic or
scientific point of view;
 geological and physiographical formations and precisely delineated areas which
constitute the habitat of threatened species of animals and plants of outstanding
universal value from the point of view of science or conservation;
 natural sites or precisely delineated natural areas of outstanding universal value
from the point of view of science, conservation or natural beauty.

The duty to identify and protect cultural and natural sites that are part of the world’s
global heritage accrues to states, but the international community has increasingly
recognized its obligation to protect endangered species, as many areas that are the
habitats of these species, or the location of these natural sites, exceed the boundaries
of one state, and often, the state’s economic capacity.
Although, thus far, the convention has not been interpreted as providing special
protection for indigenous peoples, the fact that the latter are the best existing source
of protection for both natural sites and threatened and endangered species should
ensure that this connection be noted, and that the convention’s use be extended this
way in the future. In addition to the protection of physical elements of sites and the
sites themselves, there is also a further component that adds to the appropriateness of
244 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

this convention to indigenous rights. Speaking of the protection of non-commercial

goods, Tulio Scovazzi writes:

Les Etats peuvent aussi établir un régime spécial visant certain biens-dont les biens
culturel-afin d’assurer la jouissance de leurs bénéfices non vénaux (émotionnels ou
conceptuels) par les générations présentes et futures, et de partager les sacrifices liés a
leur protection.

[States may also establish a special regime regarding certain goods, such as cultural
goods, in order to ensure the enjoyment of the benefits of non-commercial goods
(emotional or conceptual) by present and future generations, and to participate in the
sacrifices required for their protection.] (Scovazzi, 2007)

The cultural/emotional/conceptual special goods here proposed, fit well with the

cultural/religious aspects of aboriginal rights in international law for the protection
of cultural integrity of those communities. Without special reference to indigenous
peoples, Scovazzi adds:

Un aspect important de la protection transfrontière est constitué par la préoccupation

de l’intégrité des biens culturels, avec la conséquente obligation de restitution des biens,
à l’Etat qui en aurait été dépouillé (principe du non appauvrissement du patrimoine
culturel des autres Etats).

[An important aspect of trans-border protection is the concern for the integrity of
cultural goods, with the consequent obligation of restitution of these goods to the state
that has been deprived of them (the principle of non-impoverishment of the cultural
patrimony of other states).] (Scovazzi, 2007)

The deprivations suffered by aboriginal peoples are not as simple as the theft of a
statue, a fresco or some other art treasure; no ‘restitution’ is possible for the devastation
of the Arctic lands and the ongoing extermination of the wildlife and the ecosystem
services upon which Arctic peoples depend. The health of the Lubicon peoples and
their lands is also not easily compensable (see Chapter 8).
Further, it is not only that the exclusive possession of an artefact has been violated,
but the violation of Arctic people’s rights to their heritage is, ipso facto, a violation of our
heritage, globally. Hence the previous arguments insisting that the derogation from the
norms of environmental and human rights protection ought to be considered breaches
of erga omnes obligations:

Human right interests . . . have worked a revolutionary change upon many of the classic
rules of international law as a result of the realization by states in their international
practice, that we have a deep interest in the way other states treat their own interest.
(D’Amato, 1987)

The lack of ecological integrity in the territories of aboriginal peoples may be corrected
with a lot of restoration work, but it may never be returned to its original condition.
That, once again, is not only a problem for the people directly involved in the area,
 GOVERNANCE FOR GLOBAL INTEGRITY 245

but also an ongoing disaster for humankind, as indicated by the interface between
the melting of the polar ice and glaciers, the increase in the number and severity of
hurricanes, sea surges and tsunamis, and the hazardous rising of sea levels near island
states and sea-level cities. Other cases of eco-crimes on aboriginal territories always
include the disintegrity of those lands and surrounding areas, often also involving
water scarcity, desertification and alteration of ecosystem function, and hence the loss
of ‘nature’s services’ (Daily, 1997).
In all such cases, the problems of ‘restitution’ are immense, as the appropriated
territorial integrity is not an object that can simply be put back. The same is true of the
industrial operations that result in the loss of biological integrity, and hence, in the loss
of health and normal function of the indigenous peoples affected. It might be possible
to provide some decent compensation for the surviving families of those killed in
uranium mines (see Chapter 9), or by the processes and the products of other extractive
and mining operations (see Chapters 8 and 5), but the prematurely dead or disabled
represent incompensable harms, as do the children with various neurodevelopmental
dysfunctions, so that for the most part in these cases restitution is not possible.

Responsibility for incompensable appropriations

and international humanitarian law
Il est intéressant de voir jusqu’a quel point l’individu pourrait être assujetti a des
poursuites et condamnations pénales pour avoir violé des obligations existant dans les
domaines des biens culturels (crimes de guerre ou crimes contre l’humanité).

[It is interesting to consider how far an individual can go before facing an indictment
in the law for having violated the obligations existing within the domain of cultural
goods (as in war crimes or crimes against humanity).] (Scovazzi, 2007)

Emmerich de Vattel (1714–1767) wrote about the necessity to safeguard the ‘beautiful
buildings that do honour to mankind’, the temples, tombs and other public buildings,
in time of war, as there is nothing to be gained by destroying them when a city is attacked
(de Vattel, 1758). ‘Beautiful buildings’ are the expression of cultures and, as such, were
recognized as part of the heritage of mankind even in the 18th century. Hence, even
in the event of a genuine ‘necessity of war’, considerations for the heritage of mankind
ought to have priority, and principles ought to be respected by all nations, even in the
absence of a specific treaty among them. The primacy of respect for all human beings
and their life and culture is one such culture. Not to allow this primacy to stand is to
become an enemy of humankind, a pirate, to use the language found in the well-known
Le Louis case,10 where the British court condemned a vessel carrying on the slave trade
on moral grounds, that is, on strong principles alone, in terms that clearly viewed the
obligations of all states in this matter as erga omnes, despite the fact that no treaty existed
at that time regarding slavery.
Later conventions regarding the treatment of monuments and cultural sites in
wartimes were adopted, and they codified the same beliefs. Similar beliefs were
expressed by General Dwight D. Eisenhower (29 December 1943), during the Second
World War:
246 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Today we are fighting in a country which has contributed a great deal to our cultural
inheritance, a country rich in monuments which by their creation helped and now in
their old age illustrate the growth of the civilization which is ours. We are bound to
respect those monuments as far as war allows. (cited in Merryman, 1986)

General Eisenhower even emphasized the fact that, although the principle of ‘military
necessity’ should have primacy, sometimes it becomes a misnomer for ‘military con-
venience or even personal convenience’ (cited in Merryman, 1986).11 Hence, if even a
general committed to a war was prepared to give a lot of weight to cultural artefacts and,
even more important, to consider excuses based on ‘convenience’ to be unacceptable,
then on what grounds can we possibly justify the relentless elimination of our natural
heritage without any comparable ‘necessity’? We need to keep in mind that there is
no treaty or charter that lists ‘profit making’ as the right of natural or legal persons,
let alone that ensures that goal should be defensible, even with the sacrifice of human
life.
In May 1954, the Convention of The Hague for the Protection of Cultural Goods in
Armed Conflict was adopted under the aegis of UNESCO. By April 2006, 114 states had
become signatories. Thus, not only armies but individuals (such as for instance Goering,
for his stealing of art works for his own collection or for that of Hitler) may be convicted
of these crimes of unlawful appropriation.12 Both the cultural and natural patrimony
of mankind are included, and protection is based upon granting a collective assistance
to ensure efficient protection without, however, any substitution of the actions and
responsibility of the state involved.

Cultural heritage and natural patrimony of mankind

Article 1.
Sites: works of man or the combined works of nature and man, and areas including
archaeological sites which are of outstanding universal value from the historical,
aesthetic, ethnological or anthropological point of view.

It is equally possible to consider that the patrimony of mankind should have a ‘mixed’
character, that includes both nature and culture (Scovazzi, 2007), although the rights to
environment and to culture are normally kept separate. However, the two, as argued in
Chapter 1, coincide neatly in the rights of indigenous peoples, where the two represent
different emphases perhaps, but essentially a single, inseparable whole. The presence
of aboriginal ‘guardians’ of cultures intimately connected with nature represents this
mixed character of the heritage of mankind very well.
In 2005 a special reunion of experts on the concept of ‘exceptional universal
value’13 lists six conditions that must be met, in order for a site to warrant this status.
Numbers v and vi are worth listing verbatim for their close relation to our topic:

(v) be an outstanding example of a traditional human settlement, land-use, or sea-

use which is representative of a culture (or cultures), or human interaction with the
environment, especially when it has become vulnerable under the impact of irreversible
change;
 GOVERNANCE FOR GLOBAL INTEGRITY 247

(vi) be directly or tangibly associated with events or living traditions, with ideas or
with beliefs, with artistic or literary works of outstanding universal significance. (The
Committee considers that this criterion should preferably be used in conjunction with
other criteria);

The presence of natural sites possessing these characteristics, impose on the state which
they are located, the non-derogable obligation to ensure the sites’ protection. The
exceptional value, however, is not only a value to each state, but is universally valid:

Cette valeur est entendue en général comme dépassant a la fois les frontières de l’espace
et les frontières du temps. Elle intéresse en effet, tous les Etats, mais aussi les générations
présentes et futures.

[This value in general is understood as transcending both spatial borders and

temporal limits. In effect, it concerns all states and present and future generations as
well.] (Scovazzi, 2007)

Nevertheless the UNESCO Convention for the Protection of the World Cultural and
Natural Heritage clearly speaks of the cooperation of the international community,
rather than any intent to replace the sovereign state, which holds the primary
responsibility (Article 6.1; see also Article 4), as in fact no site may be added to the list
of the heritage of mankind without the consent of the state in question.
It is particularly important to extend explicitly the definitions of this convention,
and the requirements of ‘exceptional sites’, to the territories of indigenous peoples,
because once a site has deteriorated to the point that it no longer possesses the
characteristics that constituted its ‘exceptional value’, then the site’s name is withdrawn
from the list.14
The exceptional combination of, for example, Arctic landscapes and wildlife,
together with the particular traditional lifestyles of the Arctic peoples in each area,
are thus highly vulnerable, once the specific properties of that territory and of the
peoples that inhabit it have been ‘profoundly altered’15 by climate change and by the
consequences of industrial pollutants and toxins.
Notwithstanding the apparent strong connection here outlined between the
obligation to protect the cultural and natural heritage of mankind, and the right
of aboriginal peoples to their own protection and that of their lands, not only has
this approach not been used in either international or domestic jurisprudence, to
my knowledge, but even recent scholarship attempting to describe the ‘conceptual
structures’ of indigenous claims does not even contemplate this possibility.
We need to understand why any entrenched support or protection measure
regarding indigenous peoples is viewed as troubling and controversial from the out-
set by the international community. In 1977, the Sub-Commission of the ICCPR,
appointed Francesco Capotorti (Italy) to study the implications of Article 27 of the
covenant. Capotorti (1977) indicates why states in general are ‘reluctant’ to accept that
indigenous peoples are entitled to special protection:

any international mechanism set up for that purpose may be viewed as a pretext for
interference in a state’s internal affairs; the usefulness of a uniform approach in such
248 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

profoundly different contexts is questionable; preservation of the ideal of minorities

was seen by some as a threat to unity and stability; and the need for special protection
could be used to justify reverse discrimination.

The combined weight of these issues has ensured that the Draft Declaration on the
Rights of Indigenous Peoples has been studied at length, but only the Human Rights
Council stopped the debate (still ongoing in 2006) by adopting the declaration in June
2006, referring it to the UN General Assembly for adoption.16 Hence, the draft remains
soft law for now.
In order to complete even an overview of existing instruments and approaches
to the protection of aboriginal peoples, it is useful to summarize once again what is
presently available, before venturing towards what might be desirable, and perhaps
even possible, in the future.

BENEDICT KINGSBURY (2001) ON

‘FIVE COMPETING CONCEPTUAL STRUCTURES
OF INDIGENOUS PEOPLES’ CLAIMS’

Somebody else has it and tells you you may have it, and so you try to find it; but every
time you try to find it, it is not there. . . If something serves the purpose of the state, it
is sovereign;. . . and it serves the government’s purpose to recognize Indian sovereignty,
because it then does not have to abide by the rules and regulations that govern nuclear
waste elsewhere in the United States. (Lyons, 1993)

Kingsbury (2001) cites the Haudenosaunee Leader, Oren Lyons, to demonstrate

what he terms the ‘chimerical element of the modern quest for “sovereignty” among
Indian Nations in the United States’. The quest for sovereignty represents one of the
‘five fundamentally different conceptual structures employed in claims brought by
indigenous peoples’ (Kingsbury, 2001):

1 human rights and non-discrimination claims;

2 minority claims;
3 self-determination claims;
4 historical self-determination claims;
5 claims as indigenous peoples, including claims based on treaties or other agreements
between indigenous peoples and states.

The first thing to note about this list is that neither claims about environmental rights,
nor about the natural heritage of mankind are present; nor are any claims regarding the
right to life, to health, or to be spared exposures to harmful and toxic substances. Hence,
we are firmly within the realm of what has been tried in law thus far. We are also within
the realm of claims that have been far from successful to protect indigenous peoples,
as the successes of these claims have been limited and few, as we saw in the previous
chapters. Nevertheless, before attempting to reach beyond existing approaches, it is
useful to briefly review the conceptual structures summarized by Kingsbury (2001).
 GOVERNANCE FOR GLOBAL INTEGRITY 249

The first two claim structures:

Human rights and non-discrimination and minority claims

The first ‘conceptual structure’, that is, the appeal to human rights to non-discrimination,
is, on one hand, a timely and desirable approach. For example, the Committee on
Human Rights is hearing the case of the Lubicon Cree on these grounds. On the other
hand, the human rights approach may be insufficient on various grounds. For example,
too many government institutions in North America and elsewhere pay lip service to
human rights but, in practice, allow the rights of non-state, non-natural ‘persons’,
such as mining corporations, to assert their own rights to the detriment of indigenous
peoples.
In addition, freedom from racial discrimination is a powerful right, as it grounds
both genocide and ethnocide, although neither has been successfully argued in the
courts thus far regarding indigenous peoples. In addition, the question of individual
v. collective rights may be the source of problems. The second aspect of this approach
then is supported by all the instruments against discrimination, so that the universality
required by human rights is modified in favour of indigenous peoples by appealing to
the historical harms to which they have been subjected, a position similar to that of
African Americans regarding affirmative action programmes or quotas. This approach
has been debated in that context in the business ethics literature (see, for example,
Velasquez, 1998).
For applications of the concept of minorities we can appeal to several older UN
instruments17 and especially to the ICCPR, Article 27,18 which provides:

In those states in which ethnic, religious or linguistic minorities exist, persons belonging
to such minorities shall not be denied the right in community with other members of
their group, to enjoy their own culture, to profess and practice their own religion, or to
use their own language.

Article 27, by citing culture, ties self-determination to their territory, which is the most
appropriate way to think of indigenous communities. The Human Rights Committee in
Ominayak v. Canada, decided that the oil and timber concessions in the area ‘threaten
the way of life and culture of the Lubicon Lake Band, and constitute a violation of
Article 27, as long as they continue’.19
Nevertheless, even that decision did nothing to stop the ongoing industrial opera-
tions, and the committee is reviewing the case in March 2007 from the perspective of
racial discrimination instead. However Kingsbury (2001) notes that the use of Article
27 does little to address ‘the assimilationist provisions’ of the Canadian Indian Act of
1985. If aboriginal communities are to be treated as ‘minorities’, their sui generis status
is not really considered.
But it is often false to term indigenous peoples ‘minorities’, as in the second
structural approach, at least in certain regions where they may be in the majority
instead. It is also an incorrect understanding of the true position of aboriginal peoples,
as this approach does not incorporate the sui generis relation between them and their
territories, a relation that separates them sharply from other minorities, for example
the Roma in Eastern Europe and elsewhere.
250 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Two more conceptual structures:

Self-determination and historical self-determination
The third approach is closer to the sui-generis claims of indigenous peoples, based on
their traditional sovereignty and their distinctive histories. In New Zealand, the case
of Maori Council v. Attorney General,20 based on the principles of the Treaty of Waitangi,
envisions Maori people and the Crown itself as two nations participating in a treaty,
describing the relations between indigenous peoples’ environment and their history.
Not just human rights in general, but the specific aboriginal traditions and history, in
relation to their territories make the difference.
The European Commission on Human Rights depends for the most part on
Article 8.1 of the European Convention, as a person is entitled ‘to claim the right to
respect for the particular lifestyle it may lead’, as ‘private life, family life or home’ are
protected under that article.21 However, this article is not used in the jurisprudence
we have discussed, whether in Canada or elsewhere, in claims by indigenous groups
asking for the protection of their home and lifestyle. The right to self-determination is
often appealed to, but the results of those appeals are often less than optimal. The UN
Working Group on Indigenous Populations defends that right (Pritchard, 1998). The
UN Draft Declaration, Article 3, states that ‘Indigenous peoples have the right to self-
determination. By virtue of that right, they freely determine their political status and
freely pursue their economic, social and cultural development.’
There are several categories of ‘self-determination’ that are applied to different
socio-political units. At any rate, although complete independence could, at least
theoretically, be an available choice for indigenous peoples, it is not often chosen or
even desired. Rather, some improved relation with the state where the group is located
is what is wanted, and perhaps more equality in the relations with that state (Kingsbury,
2001). At any rate, self-determination is not a panacea: ‘It can be state-threatening
or state-reinforcing, liberating or chauvinistic, democratic or demagogic. In its legal
operation since 1920, it generally has buttressed the states system’ (Kingsbury, 2001).
The UN Draft Declaration of the Working Group on Indigenous Peoples (1993),
Article 31, emphasizes the freedom of organizing their own institutions, but does not
include the powers related to ‘foreign affairs and military security’, as well as ‘policing,
taxation and judicial proceedings (Kingsbury, 2001). Worst yet, it does not specifically
tie any group to a specific land base.22
Kingsbury (2001) analyses several of the imprecisions and problematic aspects of
the draft declaration, as even a desirable environmental/health component in the draft
is not treated in the best possible manner:

States are required for instance to ‘take effective measures to ensure that no storage
or disposal of hazardous materials shall take place in the lands and territories of
indigenous peoples’, a formulation that deliberately did not provide for indigenous
consent to the receipt of such materials.

Nevertheless some internal form of self-determination is accepted by several countries,

including Canada, New Zealand, Denmark and Australia (Kingsbury, 2001), and the
1995 Mexico City Agreement on Identity and Rights of Indigenous Peoples23 also
 GOVERNANCE FOR GLOBAL INTEGRITY 251

supports self-determination, as does the Philippines Indigenous Peoples Rights Act of

1997.24
However, according to Kingsbury (2001), some view the right to self-determination
as foundational to all other rights, or, like James Anaya (2000), connect it with a human
rights approach. In contrast, I have argued (Westra, 2004b; see also Chapter 1) that
the basis of all human rights, including the capacity to decide, hence including self-
determination itself, is to be found in the preconditions of agency – that is, in the right
to health and normal intellectual and physical development – and I return to this topic
below in the discussion of health and the role of the WHO.
The fourth approach, ‘historical sovereignty’, is close to one of the aspects of the
final approach, the ‘claims as indigenous peoples’, and hence I discuss them together.
The final classic basis for claims, that is, the arguments about treaties, is not so much a
conceptual approach as a political one. Historical sovereignty, together with the related
condition of being a sui generis community, is the conceptual structure that I believe
should be emphasized in both cases and instruments. The main reason for this is
twofold: first, it is focused on sovereignty, something that is inextricably related to land
and territories, and hence something that clearly distinguishes indigenous peoples
from other ‘minorities’; and second, this approach recognizes both the historical
and the essential ‘Indianness’ of these communities, with all its traditional/cultural
components.
In this sense, sovereignty also supports the extensive series of treaties between
aboriginal communities and the governments of New Zealand, Canada and the US.25 It
seems that, given the geopolitical situation and the heavy hand of globalization today,
sovereignty is at times something of a ‘red herring’. Aboriginal groups do argue for it
forcefully, and it does have a component of dignity and power attached to it. But the
other side of the coin is its powerlessness regarding the harmful conditions surrounding
or even infiltrating the ‘sovereign’ nations, as we saw in the clear indictment of US
practices regarding radioactive waste by Oren Lyons, and generally in the conditions of
the Nunavut people.
It is only when sovereignty is coupled with the special existence of indigenous
peoples as a distinct category that the concept starts to fit, and perhaps even provides
a useful tool in conflict situations. In Chapter 6 we saw the case of the Mohawk at Oka,
where the joint claim was precisely that of sovereignty and the special respect for the
traditional burial grounds at Oka. Another similar case, albeit in a different region, is
that of ‘native Tahitians against a French government decision to allow construction of
a hotel complex in an area impinging on an ancient Polynesian grave site’ (Kingsbury,
2001).26
Nevertheless, this approach, which shows ‘special respect’ for indigenous com-
munities, whose ‘traditions, culture, lands and beliefs had been ignored and impaired’
(Kingsbury, 2001), is not enough. It remains a conceptual approach that focuses
exclusively on the past of indigenous peoples, viewed as ‘victims’. This may well be the
best approach available against the ongoing harms affecting these groups, and law, at
least common law, is primarily focused on precedent. But it remains focused on ‘history
and culture’ (Kingsbury, 2001), rather than on the indigenous peoples themselves, as
a unique, distinct society, whose sui generis relation to their territories makes them a
beacon of hope for the future of humankind and not only a relic of the past, even if the
latter is well worth saving.
252 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Simply, it is not those groups who join with corporate enterprises as ‘partners’ who
want to be free of their ‘frozen rights’ (Borrows, 1997–1998), whether it is in conjunction
with Shell Oil in the Canadian oil sands of Alberta, or with the fishery corporations of
New Zealand (see Chapter 4). Instead, those who stand up to and against the corporate
second conquest, who are and must continue to be, the inspiration and model to the
rest of the world to recapture the oneness with the natural world that we have lost,
represent that beacon of hope.
This brief summary cannot possibly do justice to the richness and thoroughness
of Kingsbury’s (2001) treatment of this important topic, but it serves for our purpose
to conclude the survey of what instruments and conceptual tools are ‘out there’ at this
time and are, at least in principle, capable of being extended to keep pace with today’s
science, and with the reality of the present circumstances of climate change and the
unchecked proliferation of chemical and toxic substances. Below, I turn to concepts
and instruments that have not yet been used in defence of aboriginal peoples, but
which show some evidence of possible renewal and re-evaluation in that direction, or
that represent, as they stand, obstacles that must be acknowledged in our quest for
justice for aboriginal peoples.

CORPORATIONS AND THEIR HUMAN RIGHTS?

The fundamental rights regime of the European Union is a potent example at the
level of supranational law, of fundamental rights and freedoms to corporate actors:
corporate claims make up a large part of the fundamental rights litigation brought
before the European Court of Justice. (Emberland, 2006)

In the last chapter we discussed the responsibility of non-state actors, including

corporations, for the protection of aboriginal rights. But we need to attempt a deeper
understanding of the origins of the present cavalier disregard for those rights by
corporate actors. That disregard, I submit, started with the Santa Clara case,27 as dis-
cussed in conjunction with de Vattel’s ‘wrong turn’, which proposed viewing states as
subjects of natural law like human persons (see Chapter 3).
The thrust of this work, thus far, has argued for viewing corporate actors as open
to criminal prosecution for breaches of human rights, rather than attempting to view
them as beneficiaries of human rights law (see, for example, Jagers, 2002; Joseph,
2004). In fact, corporations are powerful entities, and human rights law, for the most
part, is intended to defend the vulnerable and the poor against abuses of power.
Hence, even the use of human rights language in relation to corporations does not
fit well. ‘Experience shows, besides, that uninhibited free enterprise often is at odds
with respect for individual integrity, a central tenet of international human rights’
(Emberland, 2006).
Emberland’s (2006) focus is on Europe, viewing the European Convention on
Human Rights28 as the most effective human rights regime in the realm of civil and
political rights. Like other courts, the European Court is primarily seeking to implement
the right to equality and, in general, the European Court of Human Rights:
 GOVERNANCE FOR GLOBAL INTEGRITY 253

In accordance with the Vienna Convention on the Law of Treaties Article 31(1), the
Court places ‘considerable emphasis . . . in the interpretation of the Convention, upon
a teleological approach,’ that is, the method by which the object and purpose of the
ECHR had not been exhaustively identified, but that it encompasses subjective as well
as objective elements. (Emberland, 2006)

The convention is intended to protect human rights, but also it is designed to promote
the ideals of a democratic society and the rule of law and other values. Emberland
(2006) shows that:

. . . the scope of Arts. 8, 10 and 41 has been widened to include private activity that was
formerly believed to lack the characteristics required for protection under the relevant
rights and entitlements: the ambit now covers corporate and for-profit activities to an
extent that at least was not discussed at the time of the Convention’s adoption.

Perhaps the most important article that should be ‘protected’ from such ‘extension’,
is Article 8(1), because this article is the only one appealed to in defence of the right
to life and health, not only in European courts, but in international law as well.29 In
Europe, several cases were successful applications of Article 8(1); however, in cases
involving indigenous peoples, Article 8(1) has been appealed to but with no success
so far.
Article 8(1) states that ‘Everyone has the right to respect for his private and family
life, his home and correspondence’. In some sense, corporate offices do represent the
‘home’ of a company, despite the fact that no ‘family life’ takes place on those premises,
except by a very convoluted extension. Emberland (2006) adds:

Here, as elsewhere in Article 8, a distinction is drawn between matters concerning

a person’s ‘private sphere’ and matters more broadly connected with private activity.
When a company asserts ‘home protection’, it seeks safeguards for its for-profit activity,
but for-profit activity as such is not an issue with which ‘privacy’ and ‘home protection’
are concerned.

In fact, even the private sphere of individual persons, their ‘home life’, represents,
at best, an effort to treat as simply formal a right that ought to be substantive and
principle-based instead. Hence, it seems right to conclude that Article 8 primarily
‘protects the natural person’, the individual human being, rather than the offices of
a corporation (Emberland, 2006).30 The article is intended to protect the individual
against arbitrary interference by public authorities or others. Emberland (2006) argues
that the ‘philosophical justification’ of the article depends on the fact that ‘the individual
cannot make free moral and rational choices, establish an identity, and develop his or
her personhood’ unless there is an area free from ‘outside intrusion’ that permits this
development. Not only is this an indisputable point, but its counterpart is the fact that
without an area free from outside ‘physical’ intrusion, no normal intellectual, moral
and physical development is possible. This is precisely what I have argued for here, and
I return to this point below.
254 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

By denying, for the most part, this area of similarity between natural individuals
and legal entities, perhaps the present emphasis on equality in corporate rights might
be stemmed, although the present problems are not solved. Objective international law
does have ‘gaps’ that need urgent attention:

The idea of ‘gaps’ in law is premised on the idea that normally the law is there to be
found as a tangible object of professional scrutiny, external to the way lawyers argue
about it, or the perspectives from which they do this. (Koskenniemi, 2000; see also
Lauterpacht, 1933)

A very serious gap in international law is the lack of explicit protection of life and health
in the non-preambulary portions of international instruments (Westra, 2006). The
severity of this gap emerges from the very possibility of ‘joint’ rights between natural
individuals and corporations, even if, in the final analysis, the analogy does break down
in practice.
At any rate, as long as the ‘sources of international law’ still include natural law,
and as long as normative principles can be appealed to beyond treaties, there ought
to be some study devoted to the gap between human rights in general and the basic or
fundamental human rights for which this work argues. Not applying Article 8 to corporate
persons is a first step towards the recognition of fundamental human rights against
corporate attacks. A fuller appreciation of the necessity to recognize the normativity
that derives from natural law, beyond treaties and beyond the exclusive reliance on
state practice, is a necessary condition to achieve the protection of aboriginal peoples.
Before turning to some possible newer roads to reach that goal, it might be best to start
by acknowledging the foundation of that tentative enterprise. Sir Hersch Lauterpacht
(1946) says it well:

The fact is that while within the State it is not essential to give to the idea of a higher
law – of natural law – a function superior to that of providing the inarticulate ethical
premises underlying judicial decisions. . . in the international society the position is
radically different. There – in a society deprived of normal legislative and judicial
organs – the function of natural law, whatever may be its form, must approximate
more closely to that of a direct source of law. In the absence of the overriding authority
of the judicial and legislative organs of the State there must assert itself – unless
anarchy or stagnation are to ensue – the persuasive but potent authority of reason
and principle derived from the fact of the necessary co-existence of a plurality of States.
This explains the pertinacity, in the international sphere, of the idea of natural law
as a legal source.

FUTURE TRENDS: THE INFLUENCE

OF SOFT LAW AND NGOS

it is a principle of international law, and even a general conception of law that any
breach of an engagement involves the obligation to make reparation.31
 GOVERNANCE FOR GLOBAL INTEGRITY 255

This principle is recognized in the jurisprudence, for the most part. But the form
of recognition it achieves is usually economic. The question then remains: how can
‘reparation’ take place when a culture, hence a people, has been attacked, or when the
ecological basis for their traditional lifestyle has been altered beyond the conditions
required to support that lifestyle? Thus, the need to review available legal instruments
that might be used to deal with these problems. There are a number of instruments
available for the protection of indigenous peoples that are not fully utilized. Some
could have a stronger impact if political and economic constraints did not conspire to
minimize their potential reach. A clear example of these constraints in another field can
be found in the conflict between the WTO and the European Community regarding
SPS Agreements (WTO Agreements on the Application of Sanitary and Phytosanitary
Measures) in the EC-Biotech case.32 Under ‘2. Risk Assessment and Precaution’, the
Panel Report states:

21. The SPS agreement strives for balance between the right of WTO members to adopt
and enforce measures necessary to protect human, animal or plant life or health, and
the need to restrict the use of sanitary and phytosanitary measures for protectionist
purposes.33

And this is not a ‘special plot’ or aberration, it is a routine ‘business’ assessment of a

situation where a bizarre ‘balance’ is attempted between incommensurables: human,
animal and environmental health, all of which are obviously connected, and the
protection of trade. The point of the previous discussion of Article 8 is that the human
right to life and health cannot be ‘balanced’ with commercial interests, and in the cases
cited, health and ‘home’ did indeed gain primacy. Norms for the protection of human
beings and their habitat cannot even be compared to agreements for the protection of
profit, a non-existing category in itself.
Although this issue is not directly related to indigenous peoples, this normative
conflict represents the main issue in the case law involving indigenous communities
discussed so far. Hence, it is necessary to correctly assess this basic problem and state
that it is so important to retain a principled approach in international law, particularly
regarding indigenous peoples rights. The appeal to natural law, above, indicates
the only way that such problems should be approached and, ultimately, solved. No
agreement or treaty is sufficient by itself, primarily because all decisions that arise from
the negotiations of multiple state actors are disproportionately governed by the interests
of the richest and most powerful nations so that, for the most part, their economic
interests prevail over the legitimate human rights claims of the poor and vulnerable,
including indigenous groups.
Hence positivism alone – that is, the practice of basing policy and even court
decisions on state practice and jurisprudence – is necessary but not sufficient if justice is
to be achieved. There are no countervailing benefits that may account for the imposition
of grave costs against human rights in indigenous peoples communities. Even a state’s
self-defence ultimately requires a just war to be legitimate (Westra, 2004a), and there
are principles governing just wars too, such as jus ad bellum to define the just war and
the actions leading to it, and jus in bello to circumscribe what is and is not permissible
within it.
256 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

A just war presumably defends a people from grave human rights violations, but
that is not the case for the industrial and trade activities whose results are the imposition
of morbidity and fatalities on peoples, with no countervailing benefits. In addition,
for the most part, those communities are excluded from the decision-making process
that precedes most extractive and mining industrial operations, and hence they are,
for all intents, unconsenting to the harms that befall them. If they are included in
the discussions preceding those operations, it is only in the most cursory manner (see
Chapter 4).
Although direct appeals to natural law are not easily found in either public policy
or jurisprudence, except perhaps by reference to the ‘principles of civilized nations’
or such similar euphemisms, appeals to moral principles and to justice are routinely
incorporated in declarations, proclamations and charters, known as ‘soft law’. Principal
among these is the Earth Charter, as we shall see below.
The reasons why we do not see explicit appeals to natural law have been discussed
elsewhere in my work (Westra, 2004a). Essentially, natural law has been mistakenly
viewed as based on religious principles, ignoring the ancient basis for its formulations
in the work of Aristotle. Hence, it has been viewed as inappropriate for governance
instruments intended to direct non-religious policies. In addition, some (see Baxi,
1998) view the principles of natural law as unavoidably based on Western ideals, out of
step with modern global realities and aspirations, especially those of the global South
(see, however, the response of Higgins, 1994, who argues for the unity of all humans
whatever their region of origin).
Finally, the tenets of natural law are viewed as expressing an unacceptable essential-
ism, thus denying the ideals of freedom that are implicit in modernity. This objection
does not consider the fact that natural law implies adaptation to modern situations
– provided the basic principles are not abandoned – and most important, denies the
appellation of ‘law’ to any instrument that favours one group (or elite) over another,
and that is not intended to bring about just ends. For instance Thomas Aquinas
defines this sort of ‘law’ as ‘somebody’s violence’, and thus not to be obeyed but to be
disregarded as a legitimate obligation and actively fought against by citizens (Aquinas,
1988 [c. 1260]).
These critiques are easily rebutted, but it is to the advantage of most today to view
them as fatal to natural law instead, and to rely on state voluntarism and the positivist
approach that allows them a stronger voice than the one they might have if strong
normativity prevailed. Hence it is left to ‘soft law’ instruments and to NGOs to take
principled positions without apology, and without the need to appeal explicitly to any
specific source of international law (see Koskenniemi, 2000). Koskenniemi (2000)
explains the role of norms in international law:

By the ‘binding force’ of norms, is usually meant that norms govern the solution of
normative problems. This may be further elaborated into two propositions:
1 Norms control decisions in the sense that if they are applicable, they must be
applied and the solution they provide excludes recourse to other solutions;
2 Norms explain the decision by making the sequence leading from the identification
of the normative problem to its solution seem rational. Normative problems appear
as problems of content and problems of subsumption. The former relate to the
 GOVERNANCE FOR GLOBAL INTEGRITY 257

establishment of the meaning of an individual norm-formulation. The latter are

concerned with the legal qualification of facts.

In addition to this conceptual analysis of the role of norms, there are several principles
established, for instance, by the Declaration on the Principles of International Law
of 1970.34 Whatever its legal force today, this contains several principles that require
no further defence when applied, and hence they are foundational. The document
includes at least seven principles that carry normative force in international law, and
three of these are very relevant to indigenous peoples:

1 the principle of peoples’ self-determination;

2 the principle of political independence of states; and
3 the principle of non-use of force.35

These principles could play a determinant role in litigation involving indigenous

peoples, and they should influence the formulation of regulatory instruments and
treaties that concern them. Particularly relevant is the principle forbidding the use of
force, as the concept of ‘aggression’ has not been exhaustively defined yet by the Statute
of the International Criminal Court of Rome, or in general in international law. As
noted above, especially in Chapter 5 in the factual descriptions of the cases appearing
in the US courts under ATCA, the use of force in various forms is commonplace against
indigenous communities on the part of TNCs and the governments involved.
It is also clear that, from the scientific information regarding the Arctic peoples
discussed in Chapter 8, even forms of environmental or non-military aggression that
originate from places far removed from the ‘home’ locations of aboriginal nations
may result in serious harms. At any rate, the explicit reliance on principles and clear
appeal to normativity are not commonplace in international law. Hence it is better to
examine what soft law might have to offer to counterbalance the emphasis on trade and
other commercial rights, which remains evident in the interaction between the courts,
policymakers and aboriginal peoples.

The Earth Charter and indigenous peoples

12. Uphold the right of all without discrimination, to a natural and social environment
supportive of human dignity, bodily health, and spiritual well-being, with special
attention to the rights of indigenous peoples and minorities. . .
b. Affirm the right of indigenous peoples to their spirituality, knowledge, lands and
resources and to their related practice of sustainable livelihoods.

The Earth Charter is the product of a process initiated by Steven Rockefeller, Ron Engel
and others, with the representatives of people everywhere, to provide an environmental
‘moral charter’ to guide public policy. It has remained ‘soft law’ so far, despite its
adoption by the IUCN in 1998, and many other adoptions elsewhere. Principle 12
of the Earth Charter (see Appendix 1; see also Westra, 2004b) represents part of a
grouping defining ‘social justice’ and it recognizes and acknowledges the determinant
role played by the environment in the support of ‘human dignity, bodily health and
258 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

spiritual well-being’. In addition, it affirms the special rights of indigenous peoples to

their own spirituality and knowledge and, most important, the connection between this
and their lands.
The Earth Charter36 is unique for several reasons; it is also especially relevant as it
represents both soft law and the NGO influence, as it has been adopted by the IUCN
and other organizations, as well as a number of cities throughout the world. I believe
it is the most important soft law document regarding indigenous people for several
reasons:

1 It embodies a sense of the sacred without, however, representing exclusively a

specific ‘holy book’ or tradition.
2 It promotes and supports the primacy of all life, as ‘the community of life’ (Principle
I, 1.a).
3 It supports the obligation to future generations (Principle I, 4.a and 4.b).
4 It gives primacy to ecological integrity, the basis and foundation of cultural integrity
for indigenous peoples (Principle I, 5, 5.a, 5.b, 5.c, 5.d, 5.e).
5 It demands prevention from pollution and embraces the precautionary principle
(Principle II, 6.a, 6.b, 6.c and 6.d).
6 It demands strict observance of ‘social and environmental standards’ for all
production (Principle II, 7.d, 7.f).
7 It requires that science should inform the knowledge of ecological sustainability,
with particular attention to developing nations (Principles II, 8.a).
8 It emphasizes the importance of ‘traditional knowledge and spiritual wisdom’ to
‘environmental protection,’ as well as to ‘human well-being’ (Principle II, 8.b).
9 It requires the eradication of poverty and emphasizes the right of all people ‘to
potable water, clean air, food security, uncontaminated soil’; it demands that the
international community should shoulder that obligation (Principle III, 9.a).
10 It demands accountability on the part of ‘multinational organizations’ and ‘inter-
national financial organizations’; they must be responsible for all the consequences
of their activities (Principle III, 10.d).
11 It is committed to uphold the ‘right of all . . . to a natural and social environment
supportive of human dignity, bodily health, and spiritual well-being’, with particular
reference to indigenous peoples (Principle III, 12 see also 12.b).

It is easy to recognize in the principles listed here, the answer to most, if not all, the
problems and conflicts I have noted between aboriginal communities and state and
non-state actors. If the Earth Charter were to be adopted not only by NGOs and
organizations and cities, as it has been so far, but by the governments of the powerful
Western countries that are home to most TNCs, the needed legal principles and
framework for the protection of aboriginal peoples would be in place.
We have now moved so far from the respect for nature and for life, that even a
cursory review of these 11 points, focusing on those most relevant to indigenous peoples,
indicates the vast gulf that separates our present practices and legal instruments from
what should be done to ensure the survival of indigenous groups (and, incidentally, our
own). As with the changes in current practices required by global warming, this analysis
indeed represents an ‘inconvenient truth’ (Gore, 2006).
 GOVERNANCE FOR GLOBAL INTEGRITY 259

Ron Engel (2000) terms the Earth Charter a ‘transcendent’ democratic covenant’:

The experience of transcendence has been thematized in a wide diversity of religious

and secular traditions throughout human history. The Earth Charter takes the radical
democratic posture that underneath all these different interpretations there is natural
religious piety we can all share and a common covenant we can all make with the
ultimately reliable powers of life.

Here, moral principles, natural law and a strong respect for the sacred in general are
combined in a way that does not permit rebuttal on positivist or agnostic grounds,
either based on theoretical or practical objections. Steven Rockefeller, who promoted
and guided the development of the Earth Charter from its inception after the 1992
Rio Declaration until its completion in 2000, ensured that people all over the world
were involved in the preparation and writing of the charter, so that critiques based
on North/South or rich/poor distinctions are not applicable to this document. It is
not the product of Northern ideals and it does not embody rich nations’ preferences.
Theoretically, it reflects the ‘reconstruction of old ways of thinking’ (Rockefeller, 2002),
in the same way as was advocated by Christian Weeramantry (1997) in his masterful
‘dissenting opinion’ on the Gabcikovo-Nagymaros case,37 where he lists the beliefs of all
past civilizations regarding the environment and respect for the Earth. Nor is the Earth
Charter a purely environmental treatise because it ‘recognizes that caring for Earth and
caring for people are closely interconnected’ (Rockefeller, 2002).
I cannot propose any way of making the Earth Charter an immediate instrument of
change. But I can and do recognize that the ideal relationship between the community
of life on Earth presented by the Earth Charter finds its closest embodiment in the
traditional lifestyle of aboriginal peoples the world over. If the Earth Charter represents
the newest and most radical call to sanity and to a new way of interacting with each
other and with the Earth, then the current importance of respecting and protecting the
remaining indigenous groups living in a traditional lifestyle cannot be overestimated.
This brief evaluation does not do justice to the Earth Charter’s additional emphasis
on science and on the use of the precautionary principle to ensure that ecological
sustainability is well grounded. That is the focus of the next section devoted to the issue
that might be the most important among the possible new categories under which
to search for better protective regimes for indigenous communities: science, or more
specifically, epidemiology and public health.

PUBLIC HEALTH, EPIDEMIOLOGY AND THE

RESEARCH OF THE WHO: SCIENCE IN DEFENCE
OF ABORIGINAL PEOPLES

Health disparities are, first and foremost those indicators of a relative disproportionate
burden of disease on a particular population. Health inequities point to the
underlying causes of the disparities, many if not most of which sit largely outside the
typically constituted domain of ‘health’. (Adelson, 2005)
260 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

After the influence of ‘soft law’ and the efforts of NGOs, best combined in the example
of the Earth Charter, the health aspects of the human rights of indigenous peoples
represent the second of the partially untried ways to achieve environmental justice for
these communities. ‘Partially untried’ because only one aspect of the ‘health question’
regarding indigenous peoples has already been considered in litigation and regulatory
regimes, at least in Canada. The health question has two separate though interwoven
strands: first, the ‘social, economic, political inequities’ that emerge clearly from the
expanding research and literature, including Canadian documents and reports; and
second, the breaches of human rights originating in part from government policies,
but primarily from the current primacy of trade and commercial enterprise over human
life and health, which clearly emerges from the case law discussed from Canada, the
US, Australia and elsewhere.
For the second aspect of health, the literature focuses mainly on the law itself and
the limits of accountability and responsibility of TNCs, as well as state and non-state
actors. But there is very little to be found on the health implications of harmful activities
and the true reach of the results of these activities and of the harms produced.

Health disparities in aboriginal Canada:

Social, economic and political aspects

Suicide, injuries, drug and alcohol abuse, sexual violence and even some chronic
diseases – all occurring in disproportionate numbers across aboriginal Canada – are
not just problems of individuals. (Adelson, 2005)

Some of these issues were discussed in relation to the Lubicon Cree and the Nunavut in
Chapter 8.38 The legacy of the residential schools, which not only removed children from
their family and cultural milieu, but also indoctrinated them on the need to abandon
both and even punished them for non-compliance, figures largely in the genesis of the
emotional and physical ills described above and acknowledged by Canadian government
sources (Millroy, 1999; Napoleon, 2001; Neu, 2003).
The inequities that persist affect all aboriginal peoples, including First Nations,
Métis and Inuit. They also affect equally all aboriginal peoples, whether they are
still traditional hunters in remote locations, or whether they are simply yet another
impoverished and largely overlooked group in urban or rural non-traditional settings
(Adelson, 2005). For all, there are far greater numbers of young aboriginals than the
comparable numbers of non-aboriginal Canadians, ‘due to both the high birth rate and
lower overall life expectancy’ (Adelson, 2005).
In addition, the Royal Commission on Aboriginal Peoples reports other differences
that have a grave impact on health39. For the most part, aboriginal people live in
housing that is in need of major repairs, often with no piped water supply (aboriginals
are more than 90 times as likely to suffer this as other Canadians), with no flush toilets
(aboriginals are more than ten times as likely to suffer this as other Canadians), and
about 34 per cent fewer aboriginals own their own dwelling in comparison with other
Canadians (overcrowding is the key to the spread of infectious diseases).40
Some of these hazardous conditions arise from poverty, from bureaucratic failures
and socio-political blunders. But other harms, not necessarily specific only to Canada,
 GOVERNANCE FOR GLOBAL INTEGRITY 261

originate from ecological and biological causes. Hence, in the next section I consider
those who represent the main focus of this work: traditional aboriginal peoples living
in non-urban settings, on reserves or other historically assigned territories, not only in
Canada but in various regions and continents.

Aboriginal health disparities: Ecological and biological aspects

Once fashionable during the Industrial and Progressive eras, the ideals of population
health began to wither with the rise of liberalism in the late 20th century. In its place
came a sharpened focus on personal and economic freedom. (Gostin, 2004)

Concerns with population health surely apply to the anomalous groupings of aboriginal
peoples, regardless of their locations and living arrangements, as the common thread
joining all is their aboriginal background and ancestry. It is not my intent to dispute this
point, which is an obvious one, but the social and economic disadvantages that affect
aboriginal peoples now owe a lot to the residential school systems in Canada, and to the
general inaction and bureaucratic failures in Canada and elsewhere (Johnston, 1983).
However, there are other components to public health that do not appear in those
analyses reflecting the Canadian situation. Perhaps they are not considered seriously
because they are viewed as part of the common burden of ill-health affecting all
people in developed and developing countries, originating from industrial operations
and their products and processes, rather than being a specific burden on indigenous
peoples. In addition, the well-established approach to environmental harms present in
the discipline of ecological epidemiology, understood as research into the relationship
between ecosystem health and human health at various scales, has not been used, to
my knowledge, either by the courts or legislators to properly assess the exposures of
indigenous peoples (see Soskolne, 2002).
In contrast, I have argued that because traditional aboriginal communities have a
sui generis relationship to their lands, there are several differences between the rest of
the developed world and aboriginal peoples in all continents:

1 Traditional aboriginal communities may be viewed as the proverbial ‘canaries in the

mine’, as their exposures are involuntary and unavoidable, and therefore far more
extreme than those affecting the rest of the populations of all countries.
2 Traditional aboriginal communities, therefore, are entitled to particular respect
and protection, over and above the protection that is rightfully due to all other
human beings.
3 The health impacts on traditional aboriginal communities are – in a sense – like
the result of ‘case studies’, albeit involuntary on the part of researchers who simply
record what has happened (see the case of the Nanavut nation discussed in Chapter
8). These ‘cases’ demonstrate why in general the present trade/corporate attacks
perpetrated by ‘business as usual’ should not be tolerated.
4 Therefore, traditional communities alone deserve immediate special consideration,
changed circumstances and comprehensive redress (as much as possible for restitutio
ad integrum of all they have been deprived of, as indicated in the law governing
the cultural heritage of mankind). Those who have abandoned traditional ways,
262 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

require the same support and assistance as all impoverished groups, plus additional
consideration and redress for the discrimination they have suffered, as do, for
instance, other groups that have suffered discrimination, such as women in the
workforce.41

Other groups that were discriminated against in Canada included those of Japanese
descent during the Second World War and African Canadians in Nova Scotia (see
McCurdy, 2001). This is a radical position because it divides aboriginal peoples,
including First Nations, Métis and Inuit along traditional and non-traditional lines.
It seems to glorify what John Borrows (1997–1998) terms ‘frozen rights’, over parity
with other Canadians and freedom of choice, and, in a sense, it does. However, even
accepting this distinction must not blind us to the reality of the situation faced by
many indigenous groups, even in Canada. Often, the decision to leave the land and
to abandon traditional lifestyles is not the result of a free choice. When the land is
depleted, the animals that used to be plentiful are no longer available – in short, when
industrial or military activities, or the impact of climate change, or both, conspire to
render traditional activities insufficient to ensure survival on their lands, indigenous
peoples are forced to leave.
Their status then should be considered that of environmental refugees or exiles,
not that of people who freely decided to abandon their land: they should receive
special treatment to assist them in their plight (I am indebted to Bradford Morse for
his insightful discussion of this issue). Nevertheless, in Canada, a country that embraces
and promotes multiculturalism, rather than the US-style ‘melting pot’ approach, various
groups can maintain respectful allegiance to their ethnic and racial background,
without abandoning the mainstream Canadian choices most of us have consciously
embraced. Readily available for most ethnic groups are language classes, clubs and
meeting places with organized events and sponsored classes and tours. Some of these
groups have, no doubt, been happier and more successful than others, but essentially,
the conceptual division I propose is not a ‘step back’ but a step forward for both of the
groupings I suggest.
In fact there is a precedent of sorts for this approach to aboriginal rights in the
treatment of Sami peoples in Sweden. The 1886 Reindeer Grazing Act forms the basis
for the current Reindeer Husbandry Act, 1971 (Thampapillai, 2007) and states:

The right to use land and water according to this law to support oneself and one’s
reindeer (the reindeer herding right) belongs to the person of Sami ancestry if his father
or mother or one of his grandparents had reindeer herding as a steady occupation.
Under special circumstances, the county administration can grant a person with Sami
ancestry the reindeer herding right even in cases not covered by the above paragraph.
(cited in Korsmo, 1993)

This ‘graded’ approach grants special resource rights solely to Sami who pursue a
traditional lifestyle and it has met with some approbation because it demonstrates
‘Sweden’s efforts to ensure the distinct cultural heritage of the Sami linked to reindeer
herding’ (Thampapillai, 2007). It also met with disapproval in some quarters, as the
Sami Rights Commission was criticized for failing to protect the resource rights of
 GOVERNANCE FOR GLOBAL INTEGRITY 263

all Sami, ‘while [it] merely protected the entrenched rights of the minority reindeer
herders’ (Korsmo, 1993).
As far as health issues are concerned, Adelson (2005) recognizes that it is not
possible to treat as one all aboriginals in Canada precisely because of their different
locations and lifestyles, so that unitary assessment is precluded. For the traditional
indigenous communities, the grave health problems, from the genetic mutations
affecting the Aamjiwaang First Nation in Sarnia’s ‘Chemical Valley’ in Ontario, to the
generally documented effects of oil and other mining extractive industries on the
Lubicon in Alberta, as well as those affecting most of the aboriginal groups who are
litigating for their rights, from Colombia, Ecuador, Guatemala, Ghana, Sudan and
Cambodia, cannot be denied.
In addition, there is an aspect of these problems I have not considered yet, as it
encompasses both social and physical/mental harms: ‘the social amplification of risk’
(Sunstein, 2007). Sunstein cites an example:

Consider this in regard to the ‘Buffalo Creek Syndrome’, documented several times in
the aftermath of major disasters. Nearly two years after the collapse of a dam that left
one hundred twenty people dead and four thousand homeless, psychiatric researchers
continued to find significant psychological and sociological changes; survivors were
characterized by a loss of direction and energy, other disturbing character changes, and
a loss of communality. One evaluation attributed this loss of direction specifically to
‘the loss of traditional bonds of kinship and neighbourliness’. (Sunstein, 2007)

This loss reflects much of what was observed in Nunavut as well as the narratives of
many other affected groups, although in the Arctic we face a slow, ongoing disaster,
rather than a sudden, natural one. Sunstein’s argument seriously supports the modified
version of the precautionary principle that he proposes, particularly with reference to
climate change and related disasters. He argues that most people find it difficult to
accept present losses in order to ensure favourable outcomes that are not immediately
observable, and this is clearly the case with climate change’s ‘worst-case scenarios’.
Sunstein proposes adopting a special version of the precautionary principle, modified
as ‘the catastrophic harm precautionary principle’:

In deciding whether to eliminate the worst-case scenario under circumstances of

uncertainty, regulators shall consider the losses imposed by eliminating that scenario
and the magnitude of the difference between the worst-case scenario and alternative
scenarios. (Sunstein, 2007)

But two grave problems remain: one is that alternative scenarios today are based on
current knowledge, but the knowledge of the possibilities involved in other scenarios
would increase regularly as time goes on. As our knowledge expands, we might discover
that both the decision to wait to acquire better understanding was a mistake, and that
alternative scenarios we believed might present a better, less costly choice, may have
been entirely mistaken. Sunstein (2007) writes:

. . . the failure to take precautionary action may be irreversible, or reversible only at very
high cost. For example greenhouse gasses stay in the atmosphere for a very long time,
264 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

and inaction may saddle posterity with a catastrophic risk that future generations are
effectively powerless to eliminate.

Hence, if we accept Sunstein’s analysis, the situation of aboriginal communities is

something about which uncertainty remains, so that we can hesitate among various
scenarios for the far future. In contrast, the catastrophic aspects of their situation are,
for the most part, present and evident, although the long-term implications of their
precarious situation – that is, the ‘social amplification’ of the harms they have suffered,
as well as of the risks to which they are exposed – have not been fully researched or
understood, let alone factored into regulatory instruments or judicial analysis, whether
domestic or international.
These health effects are environmentally related and globally distributed, and they
point to the responsibility not only of the trade regimes that govern TNCs and their
interaction with indigenous groups, but also to the accountability of governments that
are complicit with those who inflict harm. We should return briefly then to the possibility
of intervention by the WHO, as a UN organ and, in a sense, as the global ‘policeman’ of
health issues, as noted in the discussion of the Tobacco Convention above.

The WHO and the scientific component of aboriginal protection

WHO’s advancement of national and international public health and supervisory

institutions is critical to furthering the realization of the right to health. Encouraging
countries to develop specific binding legal obligations with respect to the right to health,
and publicizing their compliance and non-compliance with those obligations, can
powerfully influence states to rethink priorities and redirect national resources to
national health care. (Taylor, 1992)

WHO’s mandate of ‘Health for All’ was declared in 1977 and was to be achieved for all
the world’s citizens by 2000.42 Nevertheless, it is hard to find any appeals to science or
health in the jurisprudence concerning indigenous peoples’ rights. There appears to be
a disjoint between the WHO health mandate, despite its position in the UN, and other
documents which, even if they address the question of health, do so in general terms
and with no reference to the WHO, let alone to the possibility of binding regulations.
For instance, Article 7 of the Human Rights Council43 states:

1 Indigenous individuals have the right to life, physical and mental integrity, liberty
and security of persons.
2 Indigenous peoples have the collective right to live in freedom, peace and security
as distinct peoples and shall not be subjected to any act of genocide or any other act
of violence including forcibly removing children of the group to another group.44

The problem is that at this time these articles and the whole draft do not represent
binding legal obligations. Hence, the desirability of involving the WHO or, better yet,
the World Health Assembly (WHA), to add their authoritative voice to the requirements
proposed by this report. The WHA has power that should be exercised in addition to
the technical recommendations it normally issues:
 GOVERNANCE FOR GLOBAL INTEGRITY 265

WHA also enjoys authority to adopt regulations regarding sanitary and quarantine
requirements to deter the international spread of disease, and standards for safety, purity
and potency of biological and pharmaceutical products that move in international
commerce, among other things. (Taylor, 1992)

Thus, a precedent exists whereby an arm of the WHO – that is, the WHA, its legislative
organ – is empowered to limit trade and also to limit freedom of action of individuals
in the usual public health fashion, through sanitary regulations and quarantines. Those
who attempt to defend the rights of indigenous peoples in the courts, might consider
the possibility of using this precedent for the protection of aboriginal communities as
it remains one of the few approaches that has not been tried to limit, legitimately, the
power and freedom of TNCs.
Public health is the mandate and the duty of the WHO, internationally, and they do
have a history of speaking for the most vulnerable, for instance for children’s exposures
and diseases. All the signatories of the Convention on the Rights of the Child (CRC)
are obliged to report periodically to Geneva on how their countries are integrating
the mandates of that document into their own domestic laws (see Westra, 2006). This
obligation to report applies to all states that are signatories to the CRC (all nations except
the US and Somalia), but to my knowledge, it does not oblige each state to report any
particulars about its indigenous communities (although I have found in my research
that some do) and indigenous peoples can press to make their own submissions. In
developed countries, the dissonance between the conditions of aboriginal and non-
aboriginal communities is obvious if you examine the statistical information:

Developing countries in general have a much lower life expectancy.

High infant and child (below the age of five) mortality rates are the main factors
contributing to low life expectancy rates in developing nations. . . Infant mortality
in developing countries is still more than five times that in industrialized countries.
(Taylor, 1992; see also El-Badry, 1989)

But, in addition to the malnutrition, infectious and parasitic diseases, measles, whooping
cough, diphtheria, pneumonia and malaria – the main diseases that affect children
under five years of age in developing countries (Taylor, 1992; see also Chapter 8 of
Westra, 2006) – there is also a plethora of chemical and toxic exposures in developed
countries, especially as a particular burden imposed on aboriginal communities. Unlike
the latter, the former diseases prevalent in developing countries tend to arise for the
most part from poverty and from inactions of governments.
The WHO has been very active organizing ministerial conferences on health
in Europe, where the ‘silent epidemic’ of chemical/toxic exposures is described
and presented based on the exhaustive research the WHO has accumulated (WHO
2002; Licari et al, 2005). They have also organized a meeting addressing questions
of aboriginal peoples’ health recently in Vancouver, Canada. As an organ of the UN,
its presence ought to make a stronger impact, as it indicts specific threats as grave
global challenges persist, from the return of drug-resistant tuberculosis, to cholera
epidemics and the persistence of malaria, as well as the presence of an ever-growing
body of research on exposures (Grandjean and Landrigan (2006). Taylor (1992; see
also Gelert, 1989) adds:
266 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

These global health challenges have not only exposed the inadequacy of national
public health systems, but also evidenced the increasing interdependence of world
health. Indigenous public health issues can no longer be regarded as purely a matter of
domestic concern. Increasingly public health challenges are recognized as transcending
national boundaries.

Essentially then, the right to health, guaranteed by the International Covenant on

Economic, Social and Cultural Rights,45 Article 12(1) provides for ‘the right of everyone
to the enjoyment of the highest attainable standard of physical and mental health’,
hence it recognizes that the right to health ‘is an essential element of human dignity’
(Taylor, 1992). The ‘guarantee’ intended, of course, is not for the absence of disease for
all, a patently impossible requirement. The right is instead intended to ensure certain
preconditions for health and normal function, not to health care (see Westra, 2004a).
I have argued elsewhere that the preconditions to physical and mental health, as well
as that to normal development, are specifically based on the requirement to ensure
ecological health for all human beings.46
This requirement is particularly relevant and necessary for aboriginal individuals
and groups, as ecological concerns are basic to their traditional lifestyle. The United
Nations Declaration on the Rights of Indigenous Peoples was adopted by the Human
Rights Council on 29 June 2006, although consensus could not be reached among
all (it was adopted by a recorded vote of 30 to 2 with 12 abstentions). It adds its voice
(although it is still a draft, not a binding document), to the covenant and the UN
Declaration of Human Rights, so that the protection of health should include aboriginal
peoples, and should emphasize their protection from all attacks to their health, not only
the traditional infectious diseases and other health problems arising from poverty and
unsanitary conditions. One of the main concerns of the nations and lands participating
in the discussion of the declaration, was the question of ‘their lands and territories’,
according to Article 27. Nevertheless, that article does not specify whether their ‘right’
to specific territories is only quantitative or whether the question of the quality of the
lands has been considered. The problem is that even establishing aboriginal ‘rights’
to a certain area or region is insufficient unless that area or region is protected from
pollutants of various kinds and is actually available for traditional pursuits. This is a
critical point that could be used to defend indigenous peoples’ rights and that should
inform the legal instruments designed to protect those rights.
The land is needed to exercise their rights to hunt, fish and gather wild foods,
but if the chemicals affecting the land have made it unsafe for animals and plants,
then their right cannot be exercised, and, in fact, their own health must be equally
affected. It is instructive to listen to yet another aboriginal voice, attempting to frame
the subject of their individual and collective right to life, in terms neither their country
nor the international community seem willing to accept. The case involves the Buffalo
River Dene Nation (BRDN) of Saskatchewan, Canada; the speaker is Adelard Blackman
(2006):

Unabated resource development is killing the land, our water, and our people. We’ve
asked for a moratorium and discussion to address the issues. Silence and inaction
have been the response. We have nowhere to turn, but to the international arena and
 GOVERNANCE FOR GLOBAL INTEGRITY 267

pleas for help and support from other nations and nation states. This is our last move
as the tide of genocide turns against our people. When our land is no more, then we
are no more.

In the case of BRDN, it is not only TNCs who are attacking the community, but the
Canadian federal government itself has ignored the provisions of Treaty 10 (signed by
the British Crown and BRDN in 1906) that established that their nomadic, traditional way
of life would be respected. From 1986, when the first road was build, the community was
forced into the 21st century, through the destruction of their lifestyle and their territory
and resources (Blackman, 2006). Canada authorized the Department of National
Defense to lease a large tract of land for air weapons training (Blackman, 2006), and
is also actively involved in the exploitation of BRDN’s natural resources, including oil,
timber, diamonds and uranium within BRDN traditional territory (Blackman, 2006).
Neither the Saskatchewan court nor the Supreme Court of Canada (the latter, on
18 April 2002, dismissed the application of Mr Catarat and Mr Sylvestre to appeal to the
Court of Appeal of Saskatchewan) defended the rights of this community, and a petition
is presently before the Inter-American Court of Human Rights. The community also
would like to present its case before the International Court of Justice (but so far the
court has not given it standing to do so), as well as the International Criminal Court, as
a human rights violation under CERD.
This is just one of the many examples of such cases of human rights abuses we
have discussed in this work. That is the main reason that intervention by the WHA is
advocated:

The destruction of the land to which the people of BRDN is connected leads to the
destruction of the Dene as a people and Nation. As this kind of destruction carried out
by multinational societies and governments is now global, this process of genocide of
indigenous communities is also global. (Blackman, 2006)

This statement by the representative of the indigenous community puts the reality of
the situation in simple terms, and much better than many of the court decisions I have
examined. But it remains mostly rhetoric, unless the clear connection between industrial
and other activities and the land and its inhabitants is made clear in scientific, rather
than purely emotional terms. The truth is plainly there, in the words of this Dene, but
the scientific proof to lay bare the connection of which he speaks must be provided by
the appropriate scientific organs of the UN, if the protection of human rights is to be
more than a collection of high-sounding words.

ENVIRONMENTAL JUSTICE: GLOBAL

GOVERNANCE FOR ECOLOGICAL INTEGRITY

The promotion of the right to health is explicitly present in the ‘Preamble’ of the
WHO Constitution.47 In addition, the WHO ‘has the legal capacity to initiate discussion
among member nations and to serve as a platform for international law-making efforts
268 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

in relation to the right to health’ (Taylor, 1992). It can also develop regulations under
its constitution (Article 21), and under Article 19 it can work on conventions; under
Article 23, it can make recommendations to states on any matter on which it is competent
to speak.48 In contrast, it is important to note that, according to Susan Connor (1990),
a legal consultant to the WHO, ‘We have the ability under WHO Constitution to issue
regulations and conventions that can be legally binding in form. We generally do not
do that.’
Hence, even a right proclaiming the intent to foster ‘Health for All’ with a target
year of 2000, indicating an evolution of the WHO towards human rights, does not
demonstrate a clear change in priorities, ‘from its traditional functional role to a more
assertive posture addressing health crises’ (Taylor, 1992).
A major stumbling block remains the passive stance of the WHO, except when it
addresses clearly defined technical issues (for example, SARS, avian flu, and the like),
rather than taking an aggressive, prescriptive stance on issues affecting global health.
Nevertheless the Tobacco Convention was one such leadership role that the WHO did
not shirk.
The Eighth General ‘Programme of Work’, in response to emerging global issues,49
includes the need to address ‘toxic chemicals,’ after listing tobacco but before HIV/
Aids. Hence, perhaps there is hope that, like other UN organs, the WHO will move
forward indicting present human rights abuses and bringing to task all nations that do
not prioritize the right to health for all, starting with their most vulnerable populations,
the aboriginal communities.
The difficulties involved in such a plan are vast. First, the change from a traditional,
low-key, technically advisory role, to one of law/policymaking cannot be an easy one.
Second, the economic question is usually brought in as an insurmountable obstacle,
but the WHO could respond by underlining the fact that ‘it is more a question of
priorities than of resources’, and that the health sector is, presently, ‘one of the most
underfunded areas of national financing’ (Taylor, 1992). On this topic, especially for
countries with social health care, the expenditures funded by taxes to mitigate the surge
of disease following the continuation of the status quo, would more than outweigh
the expenses required to ameliorate/restrain current practices, whose ‘benefits’ (for
example, profits) are limited to the shareholders/CEOs of the corporations involved,
and do not ‘trickle down’ in any meaningful way to the affected people, especially
indigenous groups (in the European Ministers Conference convened by the WHO in
2002, several national representatives remarked on the question of the health costs of
the status quo).
In addition, the pressure exerted on the state parties by TNCs at most WHO
conferences – especially those involved in the most dangerous operations, such as
the chemical industry – is undeniable. They participate in ministerial meetings and
they bring their power to bear to ensure that any motion to eliminate their present
hazardous activities and products is defeated, if possible, or at least modified or
postponed indefinitely.
In conclusion, any effort to establish ecological integrity in global governance
should start with the WHO taking its rightful place on the world stage in defence of all
peoples, starting with the people of aboriginal communities. The aim of this work has
been to examine the existing situation of indigenous peoples regarding the protection
of their human rights.
 GOVERNANCE FOR GLOBAL INTEGRITY 269

It is obvious, and largely undisputed in international and domestic law, that justice
for aboriginal communities starts with environmental justice: not only their right to the
historical territories and lands they have occupied, but, equally, if not more important,
with the ecological health of those lands. If indigenous peoples have the right to occupy
certain territories and to pursue their traditional lifestyle activities there, then the
preconditions upon which these rights are based are in fact their first right.
In Chapter 1, I proposed to term that right the right to biological/ecological
integrity. The ecological component refers to the condition of the lands and territories;
the biological aspect applies to the protection of health and normal function for
individuals and populations. Neither is an easy position to adopt in a world saturated
with the economic values of globalization and the post-modern, neoliberal thrust of
individualism.
Lawrence Gostin (2004) noted the problem in regard to public health, which he
described as an ideal that has been superseded by the quest for individual freedoms,
largely incompatible with communitarian obligations. Of course, this is a universal
problem and not limited to indigenous peoples. But given their communitarian
belief system and their particular relations to the lands they occupy, and hence their
vulnerability, consideration for their position should be primary in a generally desirable
effort to correct and modify present regulatory regimes and legal instruments.
The full extent of the harms perpetrated by the status quo cannot be exposed
unless the interface between environment and health is laid bare, hence this work’s
emphasis on public health and on the specific UN organ, the WHO, whose mandate it
is to ensure and protect it. When representatives of the WHO appear at various official
meetings and are reported in the media worldwide to declare on the hazards of this or
that turkey or poultry operation, the fact that several industrial operations are going to
suffer economic losses is not an issue that is weighed in the balance. The same was true
when the origins of ‘mad cow disease’ were discovered (McCalman and Cook, 1998).
The representatives of the WHO spoke clearly, forcefully and authoritatively, as they
also do when various epidemics emerge, undeterred by the economic implications of
their pronouncements.
I am simply proposing that they might follow the same path, as it is their research
that has revealed the connection between chemical exposures and disease and
abnormalities, together with work of many scientists who collaborate with them. It is
also their research and that of their collaborators that has led to the formulation of the
directive known as REACH (Registration, Evaluation and Authorization of Chemicals).50
The powerful chemical industry cannot be compared to poultry farming, although the
beef industry is also large and powerful. But the realities are similar, no matter how
wealthy and powerful are those who might face an economic loss because the effects of
their operations and products are made public. The WHO was indeed successful in the
case of ‘big tobacco’, so that perhaps ‘big chemistry’ might be next in their sights.
Unless the WHO articulates clearly the results of its own research to the public,
starting with legislators, judges and advocates, the descriptive, anecdotal recitations of
the representative of indigenous communities remain the observations of social science,
at best, rather than the hard fact of medical science that they are, and the connection
to human rights and humanitarian law is lost.
Women’s groups and advocates have fought long and hard to ensure the inclusion
of rape among the acts of genocide. That inclusion now permits raising the level of
270 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

those attacks to other crimes listed as attacks against the human person or genocide,
and codified in international law. I propose that the same effort on the part of those
who are already committed to the cause of aboriginal peoples might also serve to raise
the level of their harms in international law. This would require, initially, a courageous
stance on the part of the WHO to ensure the legitimacy of the health claims I propose.
As an organ of the UN, it should be their clear obligation to work together with other
UN committees to fulfil the aims of other conventions sponsored by the UN, such
as CERD and others, to do their share to bring about the protection of aboriginal
communities globally.

NOTES

1 UN World Conference on Human Rights, Vienna Declaration and Programme of Action,

UN Doc. A/CONF.157/24 (Part I) (1993), 32 ILM 1661 (1993).
2 Universal Declaration of Human Rights, GA Res. 217A, UNGA OR, 3d Sess., pt. 1, UN Doc.
A/810(198); UN Conference on the Human Environment, UN Doc. A/CONF.48/14 Rev.
and Corr.1(1972), 11 ILM 1416(1972).
3 Proclamation of Tehran, International Conference on Human Rights, 1968 YB on HR 458;
UN General Assembly Resolution 32/130 (1977); see also Van Boven (1979).
4 UN Doc. A/CONF.151/5/P v.1 (1992), 31 ILM 874(1992).
5 International Covenant on Civil and Political Rights, 999 UNTS 171, in force 23 March
1976, 6 ILM 368 (1967); (ICPR); and the International Covenant on Economic, Social and
Cultural Rights, (1966) UNTS 3 (ICESCR).
6 Vienna Convention on the Law of Treaties, 115 UNTS 331, 8 ILM 679 (1969).
7 UNESCO Convention Concerning the Protection of the World Cultural and Natural
Heritage, 11 ILM (1972) 1358.
8 Convention Concerning Indigenous and Tribal Peoples, ILO No. 169, 27 July 1989, 28 ILM
1382 (1989), into force 5 September 1991.
9 UN Framework Convention on Biological Diversity, 5 Treaty Doc. No. 103-20, ILM 818
(1992).
10 Le Louis, 2 Dodson, Rep. 238.
11 See also The Convention of the Hague, A.4 and A.6 regarding the imperative of military
necessity.
12 See The Trials of German Major War Criminals Proceedings of the International Military
Tribunal Sitting at Nuremberg, Germany, Vol. 22, 1950, London.
13 Doc. UNESCO WHC 05/29.COM/9, 15 June 2005.
14 Orientations Para.9; see also Convention, A.11, para.4.
15 ibid.
16 This had not happened by May 2007; the Draft’s text is at the Sub-Commission resolution
1994/45, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities,
Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities
on its 46th Section, UN Doc. E/CN.4/Sub.2/1994/56(1994).
17 See for instance the Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, UNGAOR, 47th Sess., Supp., No.49, at 210, UN Doc.
A/47/49 (1992); also the Framework Convention for the Protection of National Minorities,
1 February 1995, Europ.T.S. 157.
18 International Covenant on Civil and Political Rights, G.A. Res.2200 GAOR, 21st Sess., Supp.
No.16, at 49, UNDoc.A/6316.
 GOVERNANCE FOR GLOBAL INTEGRITY 271

19 Ominyak v. Canada, UN GAOR, 45th Sess., Supp. No. 40, Annex 9 at 27, UN Doc. A/45/40
(1990).
20 See N.Z. Maori Council v. Attorney General [1987] 1 NZLR 1641); in Canada, Delgamuukw v.
British Columbia [1997] 3.S.C.R. 1010, 1067-68.
21 See for instance G. and E. v. Norway Apps., No. 9278/81 and 9415/81, 35 Eur. Comm’n H.R.
Doc. And Rep. 30, 35 (1984).
22 Draft Declaration on the Rights of Indigenous Peoples, Working Group on Indigenous
Populations (11th Sess.) Commission on Human Rights, Sub-Commission on Prevention of
Discrimination and Protection of Minorities, 44th Sess. Agenda Item 14, at 50, Annex I, UN
Doc. E/CN.4/Sub.2/1993/29(1993).
23 Agreement on Identity and Rights of Indigenous Peoples, UN GAOR, 49th Sess., Agenda
Item 42, Annex, UN Doc. A./49/882, S/1995/256 (1995).
24 The Indigenous Peoples Rights Act, Republic Act No. 8371 (1997) (Phil.); see www.bwf.
org.
25 See for instance the Treaty of Waitangi, Treaty of Cession, 5–6 February 1840, Gr. Britain-N.Z.,
89 C sol.T.S. 473; also the treaties listed in Chapter 6, regarding Canadian First Nations.
26 See Hopu and Besent v. France, UN GAOR, 52nd Sess., Supp., No. 4, UN Doc. A/52/40 (1997);
see also Lyng v. N.W. Indian Cemetery Protective Association, 485 US 439 (1988).
27 Santa Clara County v. South Pacific Railroads Corp., 1886.
28 Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4
November 1950 T.S. 71 (1953).
29 See Guerra v. Italy, 116/1996/735/932, 19 February 1998; Lopez-Ostra v. Spain, (1995) EHRR
277, (1994) ECHR 16798/90.
30 The Oxford University Press English Dictionary Online (Oxford University Press, 2003, at
www.oed.com) defines ‘home’ as a ‘dwelling place, house, abode; the fixed residence of a
family or household; the seat of domestic life and interest; one’s own house; the dwelling in
which one habitually lives, or which one regards as one’s proper abode’.
31 Chorozow Factory case, PCIJ, Ser. A, No. 17, p. 29.
32 Trade and Development Board, 11th Sess., Geneva 19–23 March 2007, TD/B/COM.1/
CRP.4; WTO Report.
33 ibid.
34 Declaration on the Principles of International Law Concerning Friendly Relations and
Cooperation among States in Accordance with the Charter of the United Nations, 24
October 1970 (2625) XXV.
35 ibid.
36 A summary of the Earth Charter endorsements follows:
Approved Endorsers
Endorse Category Number of Endorsers
(With no category) 158
Business 270
Faith group 278
Government agencies 25
Individual 13,240
Local government 457
NGO 1,474
School 363
University 150
Total 16,415
272 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Not approved Endorsers

Endorse Category Number of Endorsers
(With no category) 6
Individual 819
NGO 1
Total 826
See also www.earthcharter.org
37 Gabcikovo-Nagymaros case, ICJ (1997) Rep.
38 See also First Nations and Inuit Regional Health Survey Steering Committee, 2003, First
Nations and Inuit Regional Health Survey, Ottawa.
39 Report of the Royal Commission on Aboriginal Peoples, Vol. 3, table 4.1, according to the
1991 Aboriginal Peoples Survey.
40 ibid.
41 Anecdotally, in Canada at least, several other groups were discriminated against, although
it was mostly a case of discrimination and being viewed ‘not quite like’ other Canadians. As
an Italo-Canadian I recall vividly the slurs and demeaning remarks I received, including the
suggestion that, as I was blond and had light eyes, I could ‘pass’ for a regular Canadian at my
place of employment, in the late 1950s and early 1960s in Toronto, Canada.
42 The World Health Authority (WHA) the legislative organ of WHO, issued the WHA Res.
30.43, 30th World Health Assembly, 14th plenary meeting (19 May 1977), in 2 World Health
Organization, Handbook of Resolutions and Decisions of the World Health Assembly and the Executive
Board, 197301984 1 (1985).
43 Resolution 2006/2 – Working group of the Commission on Human Rights to elaborate a
draft declaration in accordance with paragraph 5 of the General Assembly resolution 49/214
of 23 December 1994.
44 Report of the Working Group on its 11th Sess., Geneva, 5–16 December 2005, and 30
January–3 February (2006 (E/CN.4/2006/79).
45 UN GAOR, 21st Sess., Supp. No. 16, 49, UN Doc. A/6315 (1966).
46 International Bill of Human Rights, UN Doc. A/565 (1948).
47 WHO, Basic Documents 4-8 (38th edn, 1990).
48 The full texts of the articles cited are as follows:
ARTICLE 19:
The Health Assembly shall have authority to adopt conventions or agreements with respect
to any matter within the competence of the Organization. A two-thirds vote of the Health
Assembly shall be required for the adoption of such conventions or agreements which shall
come into force for each Member when accepted by it in accordance with its constitutional
processes.
ARTICLE 21:
The Health Assembly shall have authority to adopt regulations concerning:
(a) sanitary and quarantine requirements and other procedures designed to prevent the
international spread of disease;
(b) nomenclatures with respect to diseases, causes of death and public health practices;
(c) standards with respect to diagnostic procedures for international use;
(d) standards with respect to the safety, purity and potency of biological, pharmaceutical
and similar products moving in international commerce;
(e) advertising and labelling of biological, pharmaceutical and similar products moving
in international commerce.
ARTICLE 23
The Health Assembly shall have authority to make recommendations to Members with
respect to any matter within the competence of the Organization.
 GOVERNANCE FOR GLOBAL INTEGRITY 273

49 WHO, Eighth General Programme of Work Covering the Period 1990–1995, 37–38 (1987).
50 Registration, Evaluation and Authorization of Chemicals (REACH); COM(03) 644(01) on
REACH, COM (03) 644(02) amending Directive 67/548/EEC, REACH entered into force
on 1 June 2007.
 APPENDIX 1

The Earth Charter

March 2000

PREAMBLE The Global Situation

We stand at a critical moment in Earth’s history, a The dominant patterns of production and consump-
time when humanity must choose its future. As the tion are causing environmental devastation, the
world becomes increasingly interdependent and depletion of resources, and a massive extinction of
fragile, the future at once holds great peril and great species. Communities are being undermined. The
promise. To move forward we must recognize that benefits of development are not shared equitably
in the midst of a magnificent diversity of cultures and the gap between rich and poor is widening.
and life forms we are one human family and one Injustice, poverty, ignorance, and violent conflict
Earth community with a common destiny. We must are widespread and the cause of great suffering.
join together to bring forth a sustainable global An unprecedented rise in human population has
society founded on respect for nature, universal overburdened ecological and social systems. The
human rights, economic justice, and a culture of foundations of global security are threatened. These
peace. Towards this end, it is imperative that we, the trends are perilous – but not inevitable.
peoples of Earth, declare our responsibility to one
another, to the greater community of life, and to
future generations. The Challenges Ahead
The choice is ours: form a global partnership to care
Earth, Our Home for Earth and one another or risk the destruction
of ourselves and the diversity of life. Fundamental
Humanity is part of a vast evolving universe. Earth, changes are needed in our values, institutions, and
our home, is alive with a unique community of life. ways of living. We must realize that when basic needs
The forces of nature make existence a demanding have been met, human development is primarily
and uncertain adventure, but Earth has provided about being more, not having more. We have the
the conditions essential to life’s evolution. The knowledge and technology to provide for all and
resilience of the community of life and the well- to reduce our impacts on the environment. The
being of humanity depend upon preserving a healthy emergence of a global civil society is creating new
biosphere with all its ecological systems, a rich variety opportunities to build a democratic and humane
of plants and animals, fertile soils, pure waters, and world. Our environmental, economic, political,
clean air. The global environment with its finite social, and spiritual challenges are interconnected,
resources is a common concern of all peoples. The and together we can forge inclusive solutions.
protection of Earth’s vitality, diversity, and beauty is
a sacred trust.
Universal Responsibility
To realize these aspirations, we must decide to live
with a sense of universal responsibility, identifying
276 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

ourselves with the whole Earth community as well 4. Secure Earth’s bounty and beauty for present and
as our local communities. We are at once citizens future generations
of different nations and of one world in which
a. Recognize that the freedom of action of each
the local and global are linked. Everyone shares
generation is qualified by the needs of future
responsibility for the present and future well-being
generations.
of the human family and the larger living world. The
spirit of human solidarity and kinship with all life is b. Transmit to future generations values, traditions,
strengthened when we live with reverence for the and institutions that support the long-term flourishing
mystery of being, gratitude for the gift of life, and of Earth’s human and ecological communities.
humility regarding the human place in nature.
In order to fulfill these four broad commitments, it
We urgently need a shared vision of basic values is necessary to:
to provide an ethical foundation for the emerging
world community. Therefore, together in hope we II. ECOLOGICAL INTEGRITY
affirm the following interdependent principles for
a sustainable way of life as a common standard by 5. Protect and restore the integrity of Earth’s eco-
which the conduct of all individuals, organizations, logical systems, with special concern for biological
businesses, governments, and transnational institu- diversity and the natural processes that sustain life
tions is to be guided and assessed. a. Adopt at all levels sustainable development plans
and regulations that make environmental con-
servation and rehabilitation integral to all devel-
PRINCIPLES opment initiatives.
b. Establish and safeguard viable nature and bio-
I. RESPECT AND CARE FOR THE COMMUNITY sphere reserves, including wild lands and marine
OF LIFE areas, to protect Earth’s life support systems, maintain
1. Respect Earth and life in all its diversity biodiversity, and preserve our natural heritage.

a. Recognize that all beings are interdependent and c. Promote the recovery of endangered species and
every form of life has value regardless of its worth to ecosystems.
human beings. d. Control and eradicate non-native or genetically
b. Affirm faith in the inherent dignity of all human modified organisms harmful to native species and
beings and in the intellectual, artistic, ethical, and the environment, and prevent introduction of such
spiritual potential of humanity. harmful organisms.

2. Care for the community of life with understanding, e. Manage the use of renewable resources such as
compassion, and love water, soil, forest products, and marine life in ways
that do not exceed rates of regeneration and that
a. Accept that with the right to own, manage, and protect the health of ecosystems.
use natural resources comes the duty to prevent
environmental harm and to protect the rights of f. Manage the extraction and use of non-renewable
people. resources such as minerals and fossil fuels in ways
that minimize depletion and cause no serious
b. Affirm that with increased freedom, knowledge, environmental damage.
and power comes increased responsibility to promote
the common good. 6. Prevent harm as the best method of environmental
protection and, when knowledge is limited, apply a
3. Build democratic societies that are just, partici- precautionary approach
patory, sustainable, and peaceful
a. Take action to avoid the possibility of serious or
a. Ensure that communities at all levels guarantee irreversible environmental harm even when scientific
human rights and fundamental freedoms and knowledge is incomplete or inconclusive.
provide everyone an opportunity to realize his or
her full potential. b. Place the burden of proof on those who argue
that a proposed activity will not cause significant
b. Promote social and economic justice, enabling all harm, and make the responsible parties liable for
to achieve a secure and meaningful livelihood that is environmental harm.
ecologically responsible.
 APPENDIX 1 277

c. Ensure that decision making addresses the cumula- b. Empower every human being with the education
tive, long-term, indirect, long distance, and global and resources to secure a sustainable livelihood, and
consequences of human activities. provide social security and safety nets for those who
are unable to support themselves.
d. Prevent pollution of any part of the environment
and allow no build-up of radioactive, toxic, or other c. Recognize the ignored, protect the vulnerable,
hazardous substances. serve those who suffer, and enable them to develop
their capacities and to pursue their aspirations.
e. Avoid military activities damaging to the environ-
ment. 10. Ensure that economic activities and institutions
at all levels promote human development in an
7. Adopt patterns of production, consumption, and
equitable and sustainable manner
reproduction that safeguard Earth’s regenerative
capacities, human rights, and community well-being a. Promote the equitable distribution of wealth with-
in nations and among nations.
a. Reduce, reuse, and recycle the materials used in
production and consumption systems, and ensure b. Enhance the intellectual, financial, technical, and
that residual waste can be assimilated by ecological social resources of developing nations, and relieve
systems. them of onerous international debt.
b. Act with restraint and efficiency when using c. Ensure that all trade supports sustainable resource
energy, and rely increasingly on renewable energy use, environmental protection, and progressive
sources such as solar and wind. labor standards.
c. Promote the development, adoption, and equitable d. Require multinational corporations and inter-
transfer of environmentally sound technologies. national financial organizations to act transparently
in the public good, and hold them accountable for
d. Internalize the full environmental and social costs
the consequences of their activities.
of goods and services in the selling price, and enable
consumers to identify products that meet the highest 11. Affirm gender equality and equity as prerequisites
social and environmental standards. to sustainable development and ensure universal
access to education, health care, and economic
e. Ensure universal access to health care that fosters
opportunity
reproductive health and responsible reproduction.
a. Secure the human rights of women and girls and
f. Adopt lifestyles that emphasize the quality of life
end all violence against them.
and material sufficiency in a finite world.
b. Promote the active participation of women in
8. Advance the study of ecological sustainability and
all aspects of economic, political, civil, social, and
promote the open exchange and wide application of
cultural life as full and equal partners, decision
the knowledge acquired
makers, leaders, and beneficiaries.
a. Support international scientific and technical
c. Strengthen families and ensure the safety and
cooperation on sustainability, with special attention
loving nurture of all family members.
to the needs of developing nations.
12. Uphold the right of all, without discrimination,
b. Recognize and preserve the traditional knowledge
to a natural and social environment supportive of
and spiritual wisdom in all cultures that contribute
human dignity, bodily health, and spiritual well-being,
to environmental protection and human well-being.
with special attention to the rights of indigenous
c. Ensure that information of vital importance peoples and minorities
to human health and environmental protection,
a. Eliminate discrimination in all its forms, such as
including genetic information, remains available in
that based on race, color, sex, sexual orientation,
the public domain.
religion, language, and national, ethnic or social
origin.
III. SOCIAL AND ECONOMIC JUSTICE
b. Affirm the right of indigenous peoples to their
9. Eradicate poverty as an ethical, social, and envi-
spirituality, knowledge, lands and resources and to
ronmental imperative
their related practice of sustainable livelihoods.
a. Guarantee the right to potable water, clean air,
c. Honor and support the young people of our com-
food security, uncontaminated soil, shelter, and safe
munities, enabling them to fulfill their essential role
sanitation, allocating the national and international
in creating sustainable societies.
resources required.
278 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

d. Protect and restore outstanding places of cultural c. Avoid or eliminate to the full extent possible the
and spiritual significance. taking or destruction of non-targeted species.
16. Promote a culture of tolerance, nonviolence, and
IV. DEMOCRACY, NONVIOLENCE, AND PEACE
peace
13. Strengthen democratic institutions at all levels,
a. Encourage and support mutual understanding,
and provide transparency and accountability in gov-
solidarity, and cooperation among all peoples and
ernance, inclusive participation in decision making,
within and among nations.
and access to justice
b. Implement comprehensive strategies to prevent
a. Uphold the right of everyone to receive clear and
violent conflict and use collaborative problem solving
timely information on environmental matters and all
to manage and resolve environmental conflicts and
development plans and activities which are likely to
other disputes.
affect them or in which they have an interest.
c. Demilitarize national security systems to the level
b. Support local, regional and global civil society,
of a non-provocative defense posture, and convert
and promote the meaningful participation of all
military resources to peaceful purposes, including
interested individuals and organizations in decision
ecological restoration.
making.
d. Eliminate nuclear, biological, and toxic weapons
c. Protect the rights to freedom of opinion, expres-
and other weapons of mass destruction.
sion, peaceful assembly, association, and dissent.
e. Ensure that the use of orbital and outer space
d. Institute effective and efficient access to admini-
supports environmental protection and peace.
strative and independent judicial procedures, includ-
ing remedies and redress for environmental harm f. Recognize that peace is the wholeness created by
and the threat of such harm. right relationships with oneself, other persons, other
cultures, other life, Earth, and the larger whole of
e. Eliminate corruption in all public and private
which all are a part.
institutions.
f. Strengthen local communities, enabling them to
care for their environments, and assign environmental THE WAY FORWARD
responsibilities to the levels of government where
they can be carried out most effectively. As never before in history, common destiny beckons
14. Integrate into formal education and life-long us to seek a new beginning. Such renewal is the
learning the knowledge, values, and skills needed promise of these Earth Charter principles. To fulfill
for a sustainable way of life this promise, we must commit ourselves to adopt and
promote the values and objectives of the Charter.
a. Provide all, especially children and youth, with
educational opportunities that empower them to This requires a change of mind and heart. It re-
contribute actively to sustainable development. quires a new sense of global interdependence and
universal responsibility. We must imaginatively dev-
b. Promote the contribution of the arts and elop and apply the vision of a sustainable way of life
humanities as well as the sciences in sustainability locally, nationally, regionally, and globally. Our cul-
education. tural diversity is a precious heritage and different
c. Enhance the role of the mass media in raising cultures will find their own distinctive ways to realize
awareness of ecological and social challenges. the vision. We must deepen and expand the global
dialogue that generated the Earth Charter, for we
d. Recognize the importance of moral and spiritual have much to learn from the ongoing collaborative
education for sustainable living. search for truth and wisdom.
15. Treat all living beings with respect and considera- Life often involves tensions between important
tion values. This can mean difficult choices. However, we
a. Prevent cruelty to animals kept in human societies must find ways to harmonize diversity with unity, the
and protect them from suffering. exercise of freedom with the common good, short-
term objectives with long-term goals. Every individual,
b. Protect wild animals from methods of hunting, family, organization, and community has a vital role
trapping, and fishing that cause extreme, prolonged, to play. The arts, sciences, religions, educational
or avoidable suffering. institutions, media, businesses, nongovernmental
 APPENDIX 1 279

organizations, and governments are all called to offer Let ours be a time remembered for the awakening of
creative leadership. The partnership of government, a new reverence for life, the firm resolve to achieve
civil society, and business is essential for effective sustainability, the quickening of the struggle for
governance. justice and peace, and the joyful celebration of life.
In order to build a sustainable global community, the The Earth Charter Initiative,
nations of the world must renew their commitment International Secretariat
to the United Nations, fulfill their obligations under The Earth Council
existing international agreements, and support the P.O. Box 319-6100
implementation of Earth Charter principles with San Jose, Costa Rica
an international legally binding instrument on Tel: +506-205-1600
environment and development. Fax: +506-249-3500
Email: [email protected]
 APPENDIX 2

‘Development’ and Environmental Racism:

The Case of Ken Saro-Wiwa
and the Ogoni

The environment is man’s first right is the only approach capable of imposing respect for
We should not allow it to suffer blight all life-support systems, and hence for all human and
The air we breathe we must not poison non-human life.
They who do should be sent to prison
Our streams must remain clean all season
Polluting them is clearly treason NIGERIA UNDER THE
The land is life for man and flora,
Fauna and all, should wear that aura DICTATORSHIP OF SANI
Protected from the greed and folly ABACHA: KEN SARO-WIWA
Of man and companies unholy. AND THE OGONI PEOPLE
Ken Saro-Wiwa, A Walk in the
Prison Yard, 1994 The events of 1995 and the killing of Ken Saro-Wiwa
may be traced as the culmination of two separate but
Last Monday I got news of the five attempts intertwined historical lines, one tracing the political
it took before they finally hanged him. In the developments in Nigeria, the other, that country’s
Wild West they would let you walk at the economic interaction with oil companies, primarily
failure of the first attempt. I will remember Royal Dutch Shell Oil and Exxon.
the words, ‘Why are you doing this?’. I
also heard that he said, before they were
all martyred: ‘Lord take my soul, but the Political developments
struggle continues’. (Seremba, 1995)
In June 1993, General Babangida sanctioned presi-
Seremba (1995) is referring to the murder of Ken dential elections in Nigeria. Chief M. K. O. Abiola
Saro-Wiwa on 10 November 1995, an unspeakable was the clear winner, but Babangida cancelled the
crime committed by General Abacha and his military elections after the fact, claiming that fraud had been
tribunal, with the complicity of Nigeria’s powerful committed. The international community reacted
elites, but also with the tacit support of Royal Dutch by cancelling all but humanitarian aid, suspending
Shell Oil, and of all of us who over-consume and military cooperation and restricting visas to Nigeria.
overuse in the affluent North–West countries. Wole Soyinka (1994) describes what happened:
For the most part, our silent complicity and our
responsibility goes unnoticed and unacknowledged. On June 23, 1993, the day of the annul-
Therefore, after briefly detailing a chronology of ment of the presidential election, the mili-
Nigeria’s history from June 1993 to February 1995 tary committed the most treasonable act of
and presenting Ken Saro-Wiwa’s case, I argue for larceny of all time: it violently robbed the
the need for a new approach to personal morality Nigerian people of their nationhood.
and public policy that includes an environmental
assessment of all technological projects. I also argue Through the summer months of July and August, the
that a holistic assessment of all developmental issues country was plagued by demonstrations and several
282 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

hundred were killed in clashes. The government in Economic and technological

power detained human rights workers and charged
them with ‘sedition’, ‘unlawful assembly’ and developments
other ‘crimes’. At this time, both Babangida and
Shonekan, his intended successor, were ousted by In 1958, Shell discovered oil in Ogoniland, 404
General Sani Abacha. square miles of largely wild, fertile land, home to a
variety of flowers, plants and animals, both terrestrial
In November 1993, Abacha disbanded all elected
and marine, beyond its coast, and to 500,000 Ogoni
bodies, such as the state legislature, 30 houses of
people (Saro-Wiwa, 1994b). Chevron moved its
state assemblies, all local councils, and banned
oil exploration to Ogoniland in 1977, and both
all political activity. He also suspended the 1979
companies, jointly, have extracted an estimated
Constitution, including all provisions for human
US$30 billion worth of oil from Ogoniland. Saro-
rights carried by that document. In April 1994, a civil
Wiwa (1994b) adds:
disturbance tribunal was established with the power
to impose the death penalty: capital offences now
In return for this we have received nothing
included ‘unrest crimes’ and ‘attempted murder’.
but a highly polluted land where associated
By May 1994, four Ogoni leaders were murdered and
gas burns twenty-four hours a day, belching
several hundred people, supporters of the Movement
carbon monoxide, carbon dioxide, methane
for Survival of the Ogoni People (MOSOP) were
and soot into the air; and oil spillage and
arrested, including Ken Saro-Wiwa.
blow-outs devastate much needed farmland,
The documents of Amnesty International (1995) threatening human existence.
relate that ‘he was severely beaten, his legs chained’.
Former senators, governors and members of the Flora and fauna are all but dead, marine life is
House of Representatives were also detained with- destroyed, the ecosystem is fast changing. Ogoni is
out charge. From June to September, a major Gas a wasteland.
and Oil Union went on strike, causing riots and
However Nigeria’s military dictatorship was geo-
protests, and President Clinton sent Jesse Jackson
graphically removed from this devastation and
as a special envoy to attempt mediation. This effort
enjoyed a mutually supportive relationship with
was unsuccessful and the whole Nigerian Labour
the oil companies, as they depended on the wealth
Congress, representing 40 unions and 3.5 million
the oil companies provided. In turn, the oil com-
workers joined the strike. This prompted the auth-
panies depended on the dictatorship to ignore the
orities to dissolve all unions and to replace their
environmental disasters they continued to create,
leaders with government-appointed officials. In
without imposing restraints or demanding reme-
September, the strike collapsed, and General Abacha
diation or compensation for the land and people
issued a series of decrees, retroactive to mid-August,
affected. Throughout this increasingly distressing
allowing ‘administrative detention laws, for up to
state of affairs, Saro-Wiwa maintained that ‘the
three months, renewable’, and specifying further
environment is man’s first right. Without a safe
that this particular law could not be challenged in
environment, man cannot live to claim other rights’
court.
(1994a). He also steadfastly opposed the devasta-
Abacha also fired Attorney General Olu Onagoruwa, tion of Ogoniland, demanding remediation of
and arrested union officials and leaders. In 1995, environmental problems and royalties to assist his
a ban on all political activities was executed and people. The Ogoni desperately needed help, as the
still, no time was set for the regime’s departure. In families could no longer depend on the land and
Ogoniland, hundreds of villages were destroyed the sea, but had to have financial help and medical
and hundreds killed, while Saro-Wiwa was still aid to mitigate the many ills besetting them and
detained, suffering ongoing inhuman treatment and destroying not only their livelihoods, but also their
often tortured. He was expected to be tried by the health, as they were now living in ‘absolute poverty’
Civil Disturbances Tribunal for the murder of four (Shiva, 1988). They had no access to safe water, to
officials in Ogoniland. electricity, telephones, or any educational or health
facilities (Saro-Wiwa, 1994a; 1994b).
Examples of the harms inflicted on the Ogoni
people from Shell’s economic exploitation abound.
In one case, Grace Zorbidon was walking near her
mud hut one night in January 1994, ‘carrying a
kerosene lantern to light her way’. She did not see
 APPENDIX 2 283

‘the oil slick oozing from a rupture in a pipeline that by local communities’ (Brooks, 1994). However,
runs hard up against her tiny village’ (Brooks, 1994). there is no record of Shell initiating any policy to
When she put down her lantern, she was engulfed ameliorate the Ogoni’s lot or to mitigate the damage
by flames and, in May 1994, was still lying on the they had perpetrated. Given the strength of their
floor of a healer’s hut in terrible pain, and treated economic interests in Shell’s operations, the military
only with traditional potions made from leaves. Shell continued to organize raids to ‘punish’ the Ogoni
neither inquired after her, nor saw to her treatment for obstructing Shell, and responded to protests
or to the fate of the eight children of this subsistence by shooting into the crowd, killing and maiming
farmer. Their excuse? Shell said they were ‘hazy’ on civilians, using any pretext to lay entire villages to
the accident, and could not substantiate Zorbidon’s waste. The raids were often conducted by a mobile
report because of the ‘tensions in the area’ (Brooks, police unit, nicknamed ‘Kill and Go’. On Easter
1994). Shell was much quicker to react to protests Sunday, 1994, villagers who had fled the raids were
and demonstrations that had forced it to close its felled by random shooting. ‘One ten-year old girl
operations in early 1994. Shell’s reaction was to ‘ask says she was gang-raped. Three days later, the whites
for assistance’ from the military authorities, who of her eyes were bloodshot, the flesh around them
responded with swift and brutal retribution against purple and swollen’; she explained that the soldiers
the protesters. attempted to gouge her eyes out, so that she would
not be able to identify them (Brooks, 1994). Health
The Nigerian government was not prepared to
facilities, says a European nurse, are minimal, and
tolerate any interference with its business relations
Shell refused to even pave the roads to prevent
with Shell; neither human rights nor environmental
patients having to walk through the mud to reach
concerns could be allowed to interfere. According
the clinic.
to Brooks (1994), ‘Nigeria’s government depends on
oil for 80 per cent of its income, and sees any threat What of the economic benefits? In response to
to the industry as imperiling its shaky hold on power. increasing protests from the Ogoni, the government
Oil produced by Shell accounts for about half of these ostensibly offered 3 per cent of its oil revenues to
revenues.’ Nigeria’s military dictatorship and Shell them. In practice, these percentages never reached
operate as a ‘joint venture’, in which Shell holds a 30 the Ogoni, as the money was spent in the tribal
per cent interest, the Nigerian government holds 55 lands of the ruling majority instead, or vanished in
per cent, Elf Aquitaine of France has 10 per cent, and corrupt deals (Brooks, 1994). As far as remediation
Agip Francaise the remaining 5 per cent. Further, the is concerned, one example will suffice. More than
US was also benefiting from the arrangement as they 20 years ago, a spill near the village of Ebubu has
imported 36 per cent of Nigeria’s oil production in not been cleaned to date; today, in ‘an area the size
1993, which accounted for about 11 per cent of all of four football fields, cauliflower shaped extrusions
US oil imports. of moist black tar cover the ground to a depth of
about three feet’ (Brooks, 1994). Shell claims that
In all these large business transactions, what, if any,
while unrest continues, they are not prepared to do
are the benefits the Ogoni have reaped from their
any clean-up work, though it is worth noting that the
land’s exploitation? When large multinationals
spill occurred in the late 1960s.
interact with impoverished developing countries,
the benefits accrue primarily to their constituents in As an additional corollary to the government’s role
the affluent North. The usual ‘trade-offs’ offered in in the economic development by the oil companies,
those cases are employment, ‘improvements’ such foreign observers are denied access, and even a fact-
as roads, hospitals and schools, and remediation of finding mission from The Netherlands was denied
environmental impacts. Shell’s record appears to be permission to visit. Also, checkpoints were set up
dismal on all counts. ‘Of Shell’s 5000 employees in instead in order to monitor Western travellers.
Nigeria, only 85 are Ogoni’ (Brooks, 1994); there The Wall Street Journal reporter (Brooks, 1994)
are 96 oil wells, two refineries, a petrochemical who compiled most of the data summarized in this
complex and a fertilizer plant in Ogoniland, but the section, concludes by relating her own experience:
only available hospital is described as an ‘unfinished
husk’, and the promised schools are seldom open When I approached an army officer to
because there is no money available for teachers’ ask for the military’s account of a violent
salaries (Brooks, 1994). incident, I was handed over to the secret
police, held and interrogated for two days,
In addition, Shell’s spokesman, Mr. Nickson,
and then deported ‘for security reasons’.
claimed that Shell ‘deplored’ the military ‘heavy-
handed clampdowns and the pain and loss suffered
284 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Although the US government commissioned a understandable emotion over the death of Ken Saro-
‘human rights report’ on the Ogoni in 1993, the Wiwa’, together with the anger and disapprobation
report only admitted ‘some merit’ to the Ogoni’s it faced from all nations. ‘The public have been
claims, but refused to accept the definition of manipulated and misled’, was one of its statements,
‘genocide’ urged by Saro-Wiwa, as appropriate to as they attempted to whitewash themselves because
describe the Ogoni’s plight. Saro-Wiwa remarked they had spent millions on ‘environmentally related
that ‘one thousand dead Ogonis out of five hundred projects’. The environmental problems were due,
thousand’, is comparable to half a million dead US they claimed, to ‘over-farming’(!), soil erosion,
citizens, and had that situation occurred, it would deforestation and population growth, in areas where
surely have been termed a case of ‘genocide’. only the most meagre subsistence farming existed
(Shell, 1995). Geraldine Brooks (1994) describes it
In essence, the perversion of human rights and
as ‘pulling tubers from the earth with sticks’. Shell
the clear presence of racism (or even of attempts
further appealed to a World Bank survey to support
at ‘ethnic cleansing’) that was manifested by the
their position, but the World Bank was one of the
oil companies with the support of the military
few major powers who, together with the Royal
dictatorship of Nigeria, was more than a particularly
Geographical Society, withdrew all their support
lethal case of environmental racism (Westra and
from Nigeria in protest, and categorically denied
Wenz, 1995). It was and is no less than an ‘ecological
Shell’s allegations.
war’ that was being waged (and still persists); it is
‘omnicide’, according to Saro-Wiwa (1994b). He Shell also remarked that, after all, they were not the
adds ‘men, women and children die unnoticed, flora only ones at fault, as all humanitarian protests and
and fauna are threatened, the air is poisoned, waters even international sanctions could not (and in fact
are polluted, and, finally, the land itself dies’ (Saro- did not) succeed. One can speculate that no other
Wiwa, 1994b). ‘sanctions’ could prevail, as they would not carry
the same clout for a money-hungry military clique
as would the continued cash-producing presence of
Shell and other oil companies.
AGAIN, A QUESTION OF
Finally Shell raised a question and veiled threat
RESPONSIBILITY common to all industries that are the target of
environmental protests throughout the world. The
So far we have pointed to joint activities of the ad continues, ‘What if we were to withdraw from the
military regime under Sani Abacha and Shell Oil project’ and with it, withdraw all employment the
as the primary source of the crimes committed project entails? ‘The oil extraction would continue’,
against the Ogoni and against their land. But are they say, ‘and it might not be done any better’ (Shell,
they the sole culprits? We can learn a lot from Shell’s 1995). One could respond that other companies
public relations response to Saro-Wiwa’s murder, elsewhere have in fact done much better. For
and the international revulsion and anger that instance, Conoco DuPont drilled a well in Gabon
followed. After all, Saro-Wiwa was well known as the between 1989 and 1992:
recipient of several prizes and grants (the Goldman
Environmental Prize (1995); the Right Livelihood . . . it flew in much of its equipment to
Award (1994); and the Bruno Kreisky Human Rights avoid pushing a major road through the
Award (1995); the Goldman Environmental Prize rain forest. When trees had to be felled,
was deliberately given to him in advance in the hope the company hired scientists to cultivate
of drawing international attention to him, as he had cuttings so that sites could be replanted
already been declared a ‘prisoner of conscience’ with exactly the same species that had been
by Amnesty International). A well-known poet, removed. (Westra and Wenz, 1995)
writer and activist, his death made an impact that
Shell attempted to offset by buying prime space in
international newspapers in an effort to shift blame Hence a technology assessment based on a holistic
for their actions and omissions; as they disclaimed management perspective would have made a
any responsibility for either the environmental large difference at the outset, rather than demand
devastation or the murder. remediation after the fact, a largely useless procedure
from the environmental standpoint, and – as we saw
In a carefully worded newspaper advertisement
– based on total disrespect for human rights as well.
entitled ‘Clear Thinking in Troubled Times’
(Shell, 1995), Shell explicitly allied itself with ‘clear Even more appalling from the moral standpoint, was
thinking’, and patronizingly dismissed a ‘great wave of the final paragraph of Shell’s page-long ad:
 APPENDIX 2 285

Some campaigning groups say we should all the Ogoni people; finally, they could appeal to
intervene in the political process in Nigeria. Bullard’s (2001) ‘five principles of environmental
But even if we could, we must never do so. justice’ to combat environmental racism (Shrader-
Politics is the business of governments and Frechette, 1991). But all these arguments are end-
politicians. The world where companies use of-pipe attempts at mitigation, after the fact. The
their economic influence to prop up or bring fundamental question remains: how should the
down governments would be a frightening introduction of a large technological system of oil
and bleak one indeed. (Shell, 1995) extraction have been evaluated in that particular part
of the world and in that geographical area? From the
ecocentric point of view, the environmental impact
It is both frightening and bleak to read such vicious
should have been anticipated, if not precisely, at
travesty of the facts. Shell is a partner in the joint
least with enough accuracy to discourage Shell,
venture with Nigeria’s ruthless and inhumane military
unless an impartial international commission with
regime, and knew full well the impact its financial
veto powers, including both appropriate scientists
support had on the latter’s existence. Further, when
and environmental ethicists, could have been put
negotiations and consent are both conducted and
in place to oversee all Shell’s plans and activities. In
originate from unelected, unrepresentative auth-
contrast, if we took a purely anthropocentric position
orities, one is clearly already meddling in the politics
for our starting point, we might still be able to put in
of the country with which one deals.
place some restraints, based on risk assessments of
the situation. But, without knowing the actual results
of Shell’s operations, it would have been extremely
ENVIRONMENTAL ETHICS difficult to stop them or establish tight limits to their
AND RESPONSIBILITY activities before the fact.

Hence, if we simply appealed to traditional moral

Nevertheless, even ascribing responsibility for the
principles, we might not have been able to stop the
gross miscarriage of justice and the environmental
violence that followed. It also would have rendered
devastation of Ogoniland to Shell and the military
us guilty of ‘complicity’, as would have our isolating
regime of Nigeria is necessary, but not sufficient, for
ourselves from the information and simply turning
a serious ethical evaluation of the situation. Shell and
our eyes while availing ourselves of these products’
others like them could quickly point out that they
easy availability (Jonas, 1984). The question is one of
only have a profitable market for their operations
moral responsibility, one that Hans Jonas (1984), for
because we, the affluent consumers, are hungry
example, viewed as the most important question to be
for abundant, low-cost oil and gasoline products.
asked in regard to technology: for him responsibility
Hence, it is not enough to point the finger at Shell
was the ‘keyword’ for the ethics of human conduct
and other corporate exploiters. It is also necessary
in dealing with technology. Jonas (1984) argued that
to confront the morality of our lifestyle and of our
‘the new kinds and dimensions of action require a
policy choices.
commensurate ethics of foresight and responsibility,
This is the raw, evil side of technological progress. It is which is as novel as the eventualities which it must
eco-violence perpetrated against the most vulnerable meet’. Also, when ‘foresight’ is difficult because of
people; it shows the worst face of environmental science’s lack of predictive capacities, since ‘care for
racism in a most deadly form. Retaliation against the future’ is the ‘overruling duty’, we must face the
pro-environmental protest ended in a murder, fact that the only possible moral choices might be the
orchestrated by a kangaroo court. Ken Saro-Wiwa careful application of the precautionary principle,
was murdered by hanging in Nigeria on the morning or even abstention from certain non-basic lifestyle
of 10 November 1995. The dictatorial regime that and technological choices (Jonas, 1984).
plotted and executed his murder on a trumped-up
One wonders whether an appeal to traditional,
charge was heavily dependent on the oil revenues
anthropocentric moral doctrines is sufficient not
generated by Shell’s operations. The question now
only to address such problems, but also to prevent
is, how should that technology have been evaluated
them from developing, in the face of increasing
before its impact on Nigeria was felt?
environmental disintegration and degradation,
Traditional moral theories could and should indict and mounting scarcity of resources as populations
the gross abuse of human rights that took place when increase. Many have addressed the need to ensure
Saro-Wiwa was murdered; they could decry the lack that cost–benefit analyses and economic evaluations
of justice and due process in his trial and sentencing of technology are made to focus prominently on
and appeal to Rawlsian principles in defence of ethical considerations beyond aggregate utilities and
286 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

majority preferences (Sagoff, 1988). I believe that the The basic problem for us, anywhere, is sustainability.
anthropocentric/non-anthropocentric distinction Rees and Wackernagel (1996), for example, propose
presents a false dichotomy in several senses, and adopting an ‘ecological world view’, in contrast with
that it is no more than a red herring, advanced the prevailing established ‘expansionist world view’,
by those concerned with defending the present which represents ‘the dominant social paradigm’.
status quo. Accordingly, they are led to propose a As Leopold (1949) did before them, Rees and
somewhat modified, ‘greened’ revamping of the Wackernagel (1996) recognize that we are not inde-
same hazardous, uncritically accepted practices to pendent of, and separate from, an ‘environment’,
which all life on Earth has been subjected. but ecological sustainability is foundational, so
that it makes perfectly good sense to abandon our
Utilities and preferences are normally understood
present unsustainable and indefensible world view.
(in philosophical and political theory) as reflecting
They write, ‘By contrast, an ecological economic
the wishes, and maybe the (descriptively) perceived
perspective would see the human economy as an
‘good’ of a society, as do appeals to rights, justice,
inextricably integrated, completely contained, and
fairness and due process. The question, however,
wholly dependent sub-system of the ecosphere.’
is whether ethical considerations based on moral
doctrines designed primarily for intraspecific inter- This position is supported by Rees and Wackernagels’s
action – that is, designed to guide our interpersonal research (1996) in the Vancouver–Lower Fraser
behaviour – are in fact sufficient, as well as being Valley region of British Columbia, Canada, but can
clearly necessary to ensure that our activities con- be easily generalized for all urban, affluent Northern
form to an inclusive and enlightened morality. centres. Their findings show that, assuming an
Recent global change affecting our resource base average Canadian diet and current management
everywhere proves the inadequacy of calculations practices, the local ‘regional population support(s)
that depend solely on economics, so that evaluations its consumers’ lifestyles [by importing] the product-
founded on moral doctrines and upholding both ive capacity of at least 22 times as much land as it
‘natural’ and ‘civil’ rights appear indeed mandatory. occupies’. To put this in a more general way, ‘the
ecological footprints of individual regions are much
Would this approach have been sufficient to redress
larger than the land areas they physically occupy’
the terrible ills done to the Ogoni people and their
(Westra and Wenz, 1995).
land? In other words, had a democracy been in place,
and had the citizens of Ogoniland been polled about When we continue to import others’ carrying capa-
their wishes in regard to the projects of Shell and city, we are ‘running an unaccounted ecological defi-
other corporations, would that have been enough cit, and our populations are appropriating carrying
to save the environment on which they depend? capacity from elsewhere or from future generations’
One problem is that even if a technology impact (Rees and Wackernagel, 1996). The same can be
assessment had been required and openly publicized, said about ‘sinks’ for our wastes. For both resource
it is unlikely that a community of subsistence farmers appropriation and waste disposal, our Northern
would have been well informed enough to foresee approach has been one of neo-colonialism in regard
the irreversible ecological damage that would have to less developed countries, and one of ruthless
been their lot eventually, even if they would have exploitation (through environmental racism) toward
received a fair percentage of the oil royalties, and minorities and the disempowered in our own coun-
roads, schools and clinics might have been built for tries (Kamm and Greenberger, 1995).
their use. Saro-Wiwa would have known, but it is at
least an open question whether he would have been Thus, it is both easy and even necessary to indict the
listened to, before the fact. military rule and the despotism that was instrumental
in the killing of Ken Saro-Wiwa and the devastation
This remains a routine problem whenever hazardous of his land, plus the large corporations that wreaked
operations move into minority or economically havoc on the environment, leading to the Ogoni’s
depressed areas in their home countries, although protests and resistance, and these enterprises’
perhaps both education and standards of living callous and unjust exploitation of a vulnerable
might be higher, comparatively, than those of the people for purely financial reasons. However, this is
Ogoni (Westra and Wenz, 1995). Hence, I suggest not enough.
that even in an ideal situation, where legal restraints
on environmental hazards are in place and where On 13 November 1995, the Wall Street Journal reported
democratic institutions prevail, the environmental that, although they issued ‘sanction threats’ and they
and health protection of all are by no means cut (US) military aid, and although the UK banned
guaranteed. arms sales and the EU recalled its ambassadors and
suspended all aid, no nation had ‘halted purchases
 APPENDIX 2 287

of Nigerian oil or sales of drilling equipment, as a It is both what we do and what we fail to do that is at
result of the hangings’ (Kamm and Greenberger, stake. In essence, we cannot continue to consume and
1995; see also French, 1995). Halting the oil trade to waste as though we had the right to take from the
would bring Nigeria to its knees, as oil represents 90 poor and the vulnerable, just because we can afford it.
per cent of its exports and 80 per cent of its revenue; We must reconsider our political choices when these
but the US would also be hard hit, as it imports 40 are explicitly insular, isolationist and segregationist
per cent of Nigeria’s oil. Hence, the US recalled in intent, and when they are both supported by and
its ambassador, but did not make the principled supportive of big business, such as oil companies,
stand made by the World Bank. The International tobacco producers, manufacturers of chemicals or
Finance Corporation (private sector lending for the transgenics, all of which (in their present forms)
World Bank) withdrew its support in the form of a often spell death for our environment, and ensure
US$100,000 loan to Nigeria for a liquefied natural severe threats to our health and to the persistence of
gas project (Kamm and Greenberger, 1995). our species on Earth. Thus the problem is a question
of personal as well as ecological integrity: it is a moral
The problem is that, as long as we elect leaders and
problem to which no facile solutions exist at this
governments on the basis of promises of low taxes
time. In some sense, Ken Saro-Wiwa died because of
and low prices, as well as the ‘right’ to development,
our moral failures, our negligence and our lack of
without any consideration of the size of our ecological
commitment to justice and a moral ideal.
footprint, let alone its location (that is to say, without
considering who is to pay for our choices), we cannot This, however, is one case where the law is moving
claim to be free from responsibility. Each one of us slowly to attempt to redress some of the unspeakable
is, to some extent, an accomplice and a contributor harms that occurred. In New York, the son of Ken
to the evil deeds perpetrated in Nigeria. Saro-Wiwa, has initiated an action under the Alien
Torts Claims Act.
 APPENDIX 3

Selected Documents

nationhood, namely: (a) having a permanent popula-

DRAFT DECLARATION tion; (b) having a defined territory; (c) having a gov-
OF PRINCIPLES FOR ernment; (d) having the ability to enter into relations
THE DEFENCE OF THE with other states.

INDIGENOUS NATIONS AND (2) Subjects of International Law: Indigenous groups

not meeting the requirements of nationhood are
PEOPLES OF THE WESTERN hereby declared to be subjects of international law
HEMISPHERE and are entitled to the protection of this Declaration,
provided they are identifiable groups having bonds
Developed and circulated by indigenous participants of language, heritage, tradition, or other common
at the Non-Governmental Organization Conference identity.
on Discrimination Against Indigenous Populations,
(3) Guarantee of Rights: No indigenous nation or
Geneva, 1977, reprinted in UN Doc. E/CN.4/Sub.2/
group shall be deemed to have fewer rights or lesser
476/Add.5, Annex 4 (1981).
status for the sole reason that the nation or group
has not entered into recorded treaties or agreements
Preamble with any state.

Having considered the problems relating to the (4) Accordance of Independence: Indigenous nations
activities of the United Nations for the promotion or groups shall be accorded such degree of inde-
and encouragement of respect for human rights and pendence as they may desire in accordance with
fundamental freedoms, international law.

Noting that the Universal Declaration of Human (5) Treaties and Agreements: Treaties and other agree-
Rights and related international covenants have the ments entered into by indigenous nations or groups
individual as their primary concern, and with other states, whether denominated as treaties
or otherwise, shall be recognized and applied in
Recognizing that individuals are the foundation of the same manner and according to the same inter-
cultures, societies, and nations, and national laws and principles as the treaties and agree-
Whereas, it is a fundamental right of any individual ments entered into by their states.
to practice and perpetuate the cultures, societies and (6) Abrogation of Treaties and Other Rights: Treaties and
nations into which they are born, and agreements made with indigenous nations or groups
Recognizing that conditions are imposed upon shall not be subject to unilateral abrogation. In no
peoples that suppress, deny, or destroy the cultures, event may the municipal laws of any State serve as
societies, or nations in which they believe or of which a defence to the failure to adhere to and perform
they are members, the terms of treaties and agreements made with
indigenous nations or groups. Nor shall any State
Be it affirmed, that, refuse to recognize and adhere to treaties or other
(1) Recognition of Indigenous Nations: Indigenous agreements due to changed circumstances where
people shall be accorded recognition as nations, the change in circumstances has been substantially
and proper subjects of international law, provided caused by the State asserting that such change has
the people concerned desire to be recognized as occurred.
a nation and meet the fundament requirement of
290 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

(7) Jurisdiction: No State shall assert or claim to (13) Conclusion: All of the rights and obligations
exercise any right of jurisdiction over any indigenous declared herein shall be in addition to all rights and
nation or group unless pursuant to a valid treaty obligations existing under international law.
or other agreement freely made with the lawful
representatives of the indigenous nation or group
concerned. All actions on the part of any State which DECLARATION OF PRINCIPLES
derogate from the indigenous nations’ or groups’
right to exercise self-determination shall be the OF INDIGENOUS RIGHTS
proper concern of existing international bodies.
Adopted by the Fourth General Assembly of the
(8) Claims to Territory: No State shall claim or retain, World Council of Indigenous Peoples, Panama,
by right of discovery or otherwise, the territories of September 1984, reprinted in UN Doc. F/Cn.4/
an indigenous nation or group, except such lands 1985/22, Annex 2 (1985).
as may have been lawfully acquired by valid treaty or
other cessation freely made.
Principle 1
(9) Settlement of Disputes: All States in the Western
hemisphere shall establish through negotiations All indigenous peoples have the right of self-
or other appropriate means a procedure for the determination. By virtue of this right they may freely
binding settlement of disputes, claims, or other determine their political status and freely pursue
matters relating to indigenous nations or groups. their economic, social, religious and cultural devel-
Such procedures shall be mutually acceptable to opment.
the parties, fundamentally fair, and consistent with
international law. All procedures presently in exist- Principle 2
ence which do not have the endorsement of the
indigenous nations or groups concerned, shall be All states within which an indigenous people lives
ended, and new procedures shall be instituted con- shall recognise the population, territory and instruc-
sistent with this Declaration. tions of the indigenous people.

(10) National and Cultural Integrity: It shall be unlawful

for any State to take or permit any action or course Principle 3
of conduct with respect to an indigenous nation or
group which will directly or indirectly result in the The cultures of the indigenous peoples are part of
destruction or disintegration of such indigenous the cultural heritage of mankind.
nation or group or otherwise threaten the national or
cultural integrity of such nation or group, including, Principle 4
but not limited to, the imposition and support of
illegitimate governments and the introduction of The traditions and customs of indigenous people
non-indigenous religions to indigenous peoples by must be respected by the states and recognised as a
non-indigenous missionaries. fundamental source of law.

(11) Environmental Protection: It shall be unlawful for

any State to make or permit any action or course Principle 5
of conduct with respect to the territories of an All indigenous people have the right to determine
indigenous nation or group which will directly or the person or groups of persons who are included
indirectly result in the destruction or deterioration within its population.
of an indigenous nation or group through the effects
of pollution of earth, air, water, or which in any way
depletes, displaces or destroys any natural resources Principle 6
or other resources under the dominion of, or vital to Each indigenous people has the right to determine
the livelihood of an indigenous nation or group. the form, structure and authority of its institutions.
(12) Indigenous Membership: No State, through leg-
islation, regulation, or other means, shall take ac- Principle 7
tions that interfere with the sovereign power of an
indigenous nation or group to determine its own The institutions of indigenous people and their
membership. decisions, like those of states, must be in conformity
 APPENDIX 3 291

with internationally accepted human rights both Principle 15

collective and individual.
The indigenous peoples and their authorities have
the rights to be previously consulted and to author-
Principle 8 ise the realisation of all technological and scientific
investigations to be conducted within their territories
Indigenous peoples and their members are entitled
and to be informed and have full access to the results
to participate in the political life of the state.
of the investigation.

Principle 9 Principle 16
Indigenous people shall have exclusive rights to their Indigenous peoples have the right, in accordance
traditional lands and resources; where the lands and with their traditions, to move freely and conduct tradi-
resources of the indigenous people have been taken tional activities and maintain kinship relationships
away without their free and informed consent, such across international boundaries.
lands and resources shall be returned.

Principle 17
Principle 10
Treaties between indigenous nations or peoples and
The land rights of an indigenous people include representatives of states freely entered into, shall be
surface and subsurface rights, full rights to interior given full effect under national and international
and costal waters and rights to adequate and exclus- law.
ive coastal economic zones within the limits of inter-
national law. These principles constitute minimum standards
which States shall respect and implement.
Principle 11
All indigenous peoples may, for their own needs, DECLARATION OF
freely use their natural wealth and resources in
accordance with Principles 9 and 10.
PRINCIPLES ON THE RIGHTS
OF INDIGENOUS PEOPLES
Principle 12
Adopted by representatives of indigenous peoples
No action or course of conduct may be undertaken and organizations meeting in Geneva, July 1985,
which directly or indirectly may result in the destruc- in preparation for the fourth session of the United
tion of land, air, water, sea ice, wildlife, habitat or Nations Working Group on Indigenous Populations:
natural resources without the free and informed as reaffirmed and amended by representatives of
consent of the indigenous peoples affected. indigenous peoples and organizations meeting in
Geneva, July 1987, in preparation for the working
Principle 13 group’s fifth session. Reprinted in UN Doc. E/CN.4/
Sub.2/1987/22.Annex 5 (1987).
The original rights to their material culture, includ-
ing archaeological sites, artefacts, designs, technology 1. Indigenous Nations and peoples have, in common
and works of art lie with the indigenous people. with all humanity, the right to life, and to freedom
from oppression, discrimination, and aggression.

Principle 14 2. All Indigenous Nations and peoples have the right

to self-determination, by virtue of which they have
The indigenous peoples have the rights to receive the right to whatever degree of autonomy or self
education in their own language or to establish their government they choose. This includes the right to
own educational institutions. The languages of in- freely determine their political status, freely pursue
digenous peoples are to be respected by the states their own economic, social, religious and cultural
in all dealings between the indigenous people development, and determine their own membership
and the state on the basis of equality and non- and/or citizenship, without external interference.
discrimination.
3. No State shall assert any jurisdiction over an In-
digenous nation and people, or its territory, except
in accordance with the freely expressed wishes of the
nation and people concerned.
292 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

4. Indigenous nations and peoples are entitled to place in relation to indigenous nations or peoples,
the permanent control and enjoyment of their abor- or their lands, without their prior authorization, and
iginal ancestral-historical territories. This includes their continuing ownership and control.
air space, surface and subsurface rights, inland and
14. The religious practices of indigenous nations and
coastal waters, sea ice, renewable and non-renewable
peoples shall be fully respected and protected by the
resources, and the economies based on these
laws of States and by international law. Indigenous
resources.
nations and peoples shall always enjoy unrestricted
5. Rights to share and use land, subject to the access to, and enjoyment of sacred sites in accordance
underlying and inalienable title of the indigenous with their own laws and customs, including the right
nation or people, may be granted by their free and of privacy.
informed consent, as evidenced in a valid treaty or
15. Indigenous nations and peoples are subjects of
agreement.
international law.
6. Discovery, conquest, settlement on a theory of terra
16. Treaties and other agreements freely made with
nullius and unilateral legislation are never legitimate
indigenous nations or peoples shall be recognized
basis for States to claim or retain the territories of
and applied in the same manner and according to
indigenous nations or peoples.
the same international laws and principles as treaties
7. In cases where lands taken in violation of these and agreements entered into with other States.
principles have already been settled, the indigenous
17. Disputes regarding the jurisdiction, territories
nation or people concerned is entitled to immediate
and institutions of an indigenous nation or peoples
restitution, including compensation for the loss of
are a proper concern of international law, and must
use, without extinction of original title. Indigenous
be resolved by mutual agreement or valid treaty.
peoples’ right to regain possession and control of
sacred sites must always be respected. 18. Indigenous nations and peoples may engage in
self-defence against State actions in conflict with
8. No State shall participate financially or militarily
their right to self-determination.
in the involuntary displacement of indigenous
populations, or in the subsequent economic exploita- 19. Indigenous nations and peoples have the right
tion or military use of their territory. freely to travel, and to maintain economic, social,
cultural and religious relations with each other
9. The laws and customs of indigenous nations and
across State borders.
peoples must be recognized by States’ legislative,
administrative and judicial institutions and, in case 20. In addition to these rights, indigenous nations
of conflicts with State laws, shall take precedence. and peoples are entitled to the enjoyment of all
the human rights and fundamental freedoms
10. No State shall deny an indigenous nation, com-
enumerated in the International Bill of Human
munity, or people residing within its borders the
Rights and other United Nations instruments. In
right to participate in the life of the State in whatever
no circumstances shall they be subjected to adverse
manner and to whatever degree they may choose.
discrimination.
This includes the right to participate in other forms
of collective action and expression. 21. All indigenous nations and peoples have the
right to their own traditional medicine, including
11. Indigenous nations and peoples continue to
the right to the protection of vital medicinal plants,
own and control their material culture including
animals and minerals. Indigenous nations and
archaeological, historical and sacred sites, artefacts,
peoples also have the right to benefit from modern
designs, knowledge, and works of art. They have the
medical techniques and services on a basis equal to
right to regain items of major cultural significance
that of the general population of the States within
and, in all cases, to the return of the human remains
which they are located. Furthermore, all indigenous
of their ancestors for burial according with their
nations and peoples have the right to determine,
traditions.
plan, implement, and control the resources respect-
12. Indigenous nations and peoples have the right ing health, housing, and other social services affect-
to education, and the control of education, and to ing them.
conduct business with States in their own languages,
22. According to the right of self-determination,
and to establish their own educational institutions.
all indigenous nations and peoples shall not be
13. No technical, scientific or social investigations, obligated to participate in State military services,
including archaeological excavations, shall take including armies, paramilitary or ‘civil’ organizations
 APPENDIX 3 293

with military structure, within the country or in its development project, in a process of increasing
international conflicts. autonomy and self-management.
4. Since the European invasion, the Indian peoples
of America have seen their history denied or dis-
DECLARATION OF SAN JOSÉ torted, despite their great contributions to the pro-
gress of mankind, which has led to the negation
Adopted by the UNESCO Meeting of Experts of their very existence. We reject this unacceptable
on Ethno-Development and Ethnocide in Latin misrepresentation.
America, San José, 11 December 1981, UNESCO
Doc. Fs.82/WF.32, 1982 5. As creators, bearers and propagators of a civilizing
dimension of their own, as unique and specific facets
For the past few years, increasing concern has been of the heritage of mankind, the Indian peoples,
expressed at various international forums over the nations and ethnic groups of America are entitled,
problem of the loss of cultural identity among the collectively and individually, to all civil, political,
Indian populations of Latin America. This complex economic, social and cultural rights now threatened.
process, which has historical, social, political and We, the participants in this meeting, demand uni-
economic roots, has been termed ethnocide. versal recognition of all these rights.
Ethnocide means that an ethnic group is denied 6. For the Indian peoples, the land is not only an
the right to enjoy, develop and transmit its own object of possession and production. It forms the
culture and its own language, whether collectively basis of their existence, both physical and spiritual,
or individually. This involves an extreme form of as an independent entity. Territorial space is the
massive violation of human rights and, in particular, foundation and source of their relationship with the
the right of ethnic groups to respect for their cultural universe and the mainstay of their view of the world.
identity, as established by numerous declarations,
covenants and agreements of the United Nations 7. The Indian peoples have a natural and inalienable
and its Specialized Agencies, as well as various right to the territories they possess as well as the
regional intergovernmental bodies and numerous right to recover the land taken away from them. This
non-governmental organizations. implies the right to the natural and cultural heritage
that this territory contains and the right to determine
In response to this demand, UNESCO organized freely how it will be used and exploited.
an international meeting on ethnocide and ethno-
development in Latin America, in collaboration with 8. An essential part of the cultural heritage of
FLACSO, which was held in December 1981 in San these peoples is their philosophy of life and their
José, Costa Rica. experience, knowledge and achievements accumu-
lated throughout history in the cultural, social,
The participants in the meeting, Indian and other political, legal, scientific and technological sphere.
experts, made the following in a Declaration: They therefore have a right to access to and use, dis-
semination and transmission of this entire heritage.
1. We declare that ethnocide, that is, cultural geno-
cide, is a violation of international law equivalent 9. Respect for the forms of autonomy required by
to genocide, which was condemned by the United the Indian peoples is an essential condition for
Nations Convention on the Prevention and Punish- guaranteeing and implementing these rights.
ment of the Crime of Genocide of 1948.
10. Furthermore, the Indian peoples’ own forms
2. We affirm that ethno-development is an inalienable of internal organization are part of their cultural
right of Indian groups. and legal heritage which has contributed to their
cohesion and to maintaining their socio-cultural
3. By ethno-development we mean the extension
traditions.
and consolidation of the elements of its own culture,
through strengthening the independent decision- 11. Disregard for these principles constitutes a gross
making capacity of a culturally distinct society violation of the right of all individuals and peoples
to direct its own development and exercise self- to be different, to consider themselves as different
determination, at whatever level, which implies an and to be regarded as such, a right recognized in the
equitable and independent share of power. This Declaration on Race and Racial Prejudice adopted
means that the ethnic group is a political and admini- by the UNESCO General Conference in 1978, and
strative unit, with authority over its own territory should therefore be condemned, especially when it
and decision-making powers within the confines of creates a risk of ethnocide.
294 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

12. In addition, disregard for these principles creates The General Conference of the International Labour
disequilibrium and lack of harmony within society Organization, Having been convened at Geneva by
and may incite the Indian peoples to the ultimate the Governing Body of the International Labour
resort of rebellion against tyranny and oppression, Office, and having met in its seventy-sixth session on
thereby endangering world peace and therefore 7 June 1989, and
contravenes the United Nations Charter and
Noting the international standards contained in the
Constitution of UNESCO.
Indigenous and Tribal Populations Convention and
As a result of their reflections, the participants Recommendation, 1957, and
appeal to the United Nations, UNESCO, the ILO,
Recalling the terms of the Universal Declaration
WHO, and FAO, as well as to the Organizations of
of Human Rights, the International Covenant on
American States and the Inter-American Indian
Economic, Social and Cultural Rights, the Inter-
Institute, to take the necessary steps to apply these
national Covenant on Civil and Political Rights,
principles in full.
and the many international instruments on the
The participants address their appeal to Member prevention of discrimination, and
States of the United Nations and the above-
Considering that the developments which have taken
mentioned Specialized Agencies, requesting them
place in international law since 1957, as well as
to give special attention to the application of these
developments in the situation of indigenous and
principles, and also to collaborate with international
tribal peoples in all regions of the world, have made it
intergovernmental and non-governmental organiza-
appropriate to adopt new international standards on
tions both universal and regional including in
the subject with a view to removing the assimilationist
particular, Indian organizations, in order to ensure
orientation of the earlier standards, and
observance of the fundamental rights of the Indian
peoples of America. Recognizing the aspirations of these peoples to exer-
cise control over their own institutions, ways of life
This appeal is also addressed to officials in the legisla-
and economic development and to maintain and
tive, executive, administrative and legal branches,
develop their identities, languages and religions,
and to all public servants concerned in the countries
within the framework of the States in which they live,
of America, with the request that in the course of
and
their daily duties they will always act in conformity
with the above principles. Noting that in many parts of the world these peoples
are unable to enjoy their fundamental human rights
The participants appeal to the conscience of the
to the same degree as the rest of the population of
scientific community and the individuals comprising
the States within which they live, and that their laws,
it, who have the moral responsibility for ensuring
values, customs and perspectives have often been
that their research studies and practices, as well as the
eroded, and
conclusions they draw, cannot be used as a pretext
for misrepresentation or interpretations which could Calling attention to the distinctive contributions
harm Indian nations, people, and ethnic groups. of indigenous and tribal peoples to the cultural
diversity and social and ecological harmony of
Finally, the participants draw attention to the need
humankind and to international co-operation and
to provide for due participation by genuine repre-
understanding, and
sentatives of Indian nations, peoples and ethnic
groups in any activity that might affect their future. Noting that the following provisions have been
framed with the co-operation of the United Nations,
the Food and Agriculture Organization of the United
CONVENTION (NO. 169) Nations, the United Nations Educational, Scientific
and Cultural Organization and the World Health
CONCERNING INDIGENOUS Organization, as well as of the Inter-American Indian
AND TRIBAL PEOPLES IN Institute, at appropriate levels and in their respective
INDEPENDENT COUNTRIES fields, and that it is proposed to continue this co-
operation in promoting and securing the application
of these provisions, and
Adopted by the General Conference of the Inter-
national Labour Organization, Geneva, 27 June Having decided upon the adoption of certain proposals
1989. Entered into force 5 September 1991. with regard to the partial revision of the Indigenous
 APPENDIX 3 295

and Tribal Populations Convention, 1957 (No. which national laws and regulations grant to other
107), which is the fourth item on the agenda of the members of the population;
session, and
(b) Promoting the full realisation of the social,
Having determined that these proposals shall take economic and cultural rights of these peoples with
the form of an international Convention revising respect for their social and cultural identity, their
the Indigenous and Tribal Populations Convention, customs and traditions and their institutions;
1957,
(c) Assisting the members of the peoples concerned
Adopts this twenty-seventh day of June of the year to eliminate socio-economic gaps that may exist
one thousand nine hundred and eighty-nine the between indigenous and other members of the
following Convention, which may be cited as the national community, in a manner compatible with
Indigenous and Tribal Peoples Convention, 1989: their aspirations and ways of life.

PART I. GENERAL POLICY Article 3

1. Indigenous and tribal peoples shall enjoy the
Article 1 full measure of human rights and fundamental
freedoms without hindrance or discrimination.
1. This Convention applies to: The provisions of the Convention shall be applied
(a) Tribal peoples in independent countries whose without discrimination to male and female members
social, cultural and economic conditions distinguish of these peoples.
them from other sections of the national community, 2. No form of force or coercion shall be used in
and whose status is regulated wholly or partially by violation of the human rights and fundamental
their own customs or traditions or by special laws or freedoms of the peoples concerned, including the
regulations; rights contained in this Convention.
(b) Peoples in independent countries who are re-
garded as indigenous on account of their descent Article 4
from the populations which inhabited the country,
or a geographical region to which the country be- 1. Special measures shall be adopted as appropriate
longs, at the time of conquest or colonisation or the for safeguarding the persons, institutions, property,
establishment of present State boundaries and who, labour, cultures and environment of the peoples
irrespective of their legal status, retain some or all concerned.
of their own social, economic, cultural and political 2. Such special measures shall not be contrary to the
institutions. freely-expressed wishes of the peoples concerned.
2. Self-identification as indigenous or tribal shall be 3. Enjoyment of the general rights of citizenship,
regarded as a fundamental criterion for determining without discrimination, shall not be prejudiced in
the groups to which the provisions of this Convention any way by such special measures.
apply.
3. The use of the term ‘peoples’ in this Convention Article 5
shall not be construed as having any implications
as regards the rights which may attach to the term In applying the provisions of this Convention:
under international law. (a) The social, cultural, religious and spiritual values
and practices of these peoples shall be recognised
Article 2 and protected, and due account shall be taken of
the nature of the problems which face them both as
1. Governments shall have the responsibility for groups and as individuals;
developing, with the participation of the peoples
concerned, co-ordinated and systematic action to (b) The integrity of the values, practices and institu-
protect the rights of these peoples and to guarantee tions of these peoples shall be respected;
respect for their integrity. (c) Policies aimed at mitigating the difficulties experi-
2. Such action shall include measures for: enced by these peoples in facing new conditions of
life and work shall be adopted, with the participation
(a) Ensuring that members of these peoples benefit and co-operation of the peoples affected.
on an equal footing from the rights and opportunities
296 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Article 6 4. Governments shall take measures, in co-operation

with the peoples concerned, to protect and preserve
1. In applying the provisions of this Convention, Gov- the environment of the territories they inhabit.
ernments shall:
(a) Consult the peoples concerned, through appro-
Article 8
priate procedures and in particular through their
representative institutions, whenever consideration is
being given to legislative or administrative measures 1. In applying national laws and regulations to the
which may affect them directly; peoples concerned, due regard shall be had to their
customs or customary laws.
(b) Establish means by which these peoples can
freely participate, to at least the same extent as other 2. These peoples shall have the right to retain their
sectors of the population, at all levels of decision- own customs and institutions, where these are not
making in elective institutions and administrative incompatible with fundamental rights defined by the
and other bodies responsible for policies and pro- national legal system and with internationally recog-
grammes which concern them; nized human rights. Procedures shall be established,
whenever necessary, to resolve conflicts which may
(c) Establish means for the full development of arise in the application of this principle.
these peoples’ own institutions and initiatives, and
in appropriate cases provide the resources necessary 3. The application of paragraphs 1 and 2 of this
for this purpose. Article shall not prevent members of these peoples
from exercising the rights granted to all citizens and
2. The consultations carried out in application of from assuming the corresponding duties.
this Convention shall be undertaken, in good faith
and in a form appropriate to the circumstances, with
the objective of achieving agreement or consent to Article 9
the proposed measures.

1. To the extent compatible with the national legal

Article 7 system and internationally recognised human rights.
the methods customarily practised by the peoples
1. The peoples concerned shall have the right to concerned for dealing with offences committed by
decide their own priorities for the process of develop- their members shall be respected.
ment as it affects their lives, beliefs, institutions and 2. The customs of these peoples in regard to penal
spiritual well-being and the lands they occupy or matters shall be taken into consideration by the
otherwise use, and to exercise control, to the extent authorities and courts dealing with such cases.
possible, over their own economic, social and cultural
development. In addition, they shall participate in
the formulation, implementation and evaluation of Article 10
plans and programmes for national and regional
development which may affect them directly. 1. In imposing penalties laid down by general law on
2. The improvement of the conditions of life and members of these peoples account shall be taken of
work and levels of health and education of the their economic, social and cultural characteristics.
peoples concerned, with their participation and 2. Preference shall be given to methods of punish-
co-operation, shall be a matter of priority in plans ment other than confinement in prison.
for the overall economic development of areas they
inhabit. Special projects for development of the areas
in question shall also be so designed as to promote Article 11
such improvement.
3. Governments shall ensure that, whenever appro- The exaction from members of the peoples con-
priate, studies are carried out, in co-operation with cerned of compulsory personal services in any form,
the peoples concerned, to assess the social, spiritual, whether paid or unpaid, shall be prohibited and
cultural and environmental impact on them of punishable by law, except in cases prescribed by law
planned development activities. The results of these for all citizens.
studies shall be considered as fundamental criteria
for the implementation of these activities.
 APPENDIX 3 297

Article 12 Article 15

The peoples concerned shall be safeguarded against 1. The rights of the peoples concerned to the natural
the abuse of their rights and shall be able to take legal resources pertaining to their lands shall be specially
proceedings, either individually or through their safeguarded. These rights include the right of these
representative bodies, for the effective protection of peoples to participate in the use, management and
these rights. Measures shall be taken to ensure that conservation of these resources.
members of these peoples can understand and be
2. In cases in which the State retains the ownership
understood in legal proceedings, where necessary
of mineral or sub-surface resources or rights to
through the provision of interpretation or by other
other resources pertaining to lands, governments
effective means.
shall establish or maintain procedures through
which they shall consult these peoples, with a view
PART II. LAND to ascertaining whether and to what degree their
interests would be prejudiced, before undertaking
or permitting any programmes for the exploration
Article 13
or exploitation of such resources pertaining to
their lands. The peoples concerned shall wherever
1. In applying the provisions of this Part of the possible participate in the benefits of such activities,
Convention governments shall respect the special and shall receive fair compensation for any damages
importance for the cultures and spiritual values of which they may sustain as a result of such activities.
the peoples concerned of their relationship with
the lands or territories, or both as applicable, which
they occupy or otherwise use, and in particular the Article 16
collective aspects of this relationship.
2. The use of the term ‘lands’ in Articles 15 and 16 1. Subject to the following paragraphs of this Article,
shall include the concept of territories, which covers the peoples concerned shall not be removed from
the total environment of the areas which the peoples the lands which they occupy.
concerned occupy or otherwise use.
2. Where the relocation of these peoples is considered
necessary as an exceptional measure, such relocation
shall take place only with their free and informed
Article 14
consent. Where their consent cannot be obtained,
such relocation shall take place only following
1. The rights of ownership and possession of the appropriate procedures established by national laws
peoples concerned over the lands which they tradi- and regulations, including public inquiries where
tionally occupy shall be recognised. In addition, appropriate, which provide the opportunity for
measures shall be taken in appropriate cases to safe- effective representation of the peoples concerned.
guard the right of the peoples concerned to use lands 3. Whenever possible, these peoples shall have the
not exclusively occupied by them, but to which they right to return to their traditional lands, as soon as
have traditionally had access for their subsistence the grounds for relocation cease to exist.
and traditional activities. Particular attention shall
be paid to the situation of nomadic peoples and 4. When such return is not possible, as determined
shifting cultivators in this respect. by agreement or, in the absence of such agreement,
through appropriate procedures, these peoples shall
2. Governments shall take steps as necessary to identify be provided in all possible cases with lands of quality
the lands which the peoples concerned traditionally and legal status at least equal to that of the lands
occupy, and to guarantee effective protection of previously occupied by them, suitable to provide for
their rights of ownership and possession. their present needs and future development. Where
3. Adequate procedures shall be established within the peoples concerned express a preference for
the national legal system to resolve land claims by compensation in money or in kind, they shall be so
the peoples concerned. compensated under appropriate guarantees.
5. Persons thus relocated shall be fully compensated
for any resulting loss or injury.
298 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Article 17 represent a significant percentage of the global

population. They have developed over many genera-
1. Procedures established by the peoples concerned tions a holistic traditional scientific knowledge of
for the transmission of land rights among members their lands, natural resources and environment.
of these peoples shall be respected. Indigenous people and their communities shall enjoy
2. The peoples concerned shall be consulted when- the full measure of human rights and fundamental
ever consideration is being given to their capacity to freedoms without hindrance or discrimination.
alienate their lands or otherwise transmit their rights Their ability to participate fully in sustainable
outside their own community. development practices on their lands has tended to
be limited as a result of factors of an economic, social
3. Persons not belonging to these peoples shall be and historical nature. In view of the interrelationship
prevented from taking advantage of their customs or between the natural environment and its sustainable
of lack of understanding of the laws on the part of development and the cultural, social, economic
their members to secure the ownership, possession and physical well-being of indigenous people,
or use of land belonging to them. national and international efforts to implement
environmentally sound and sustainable development
Article 18 should recognize, accommodate, promote and
strengthen the role of indigenous people and their
Adequate penalties shall be established by law for communities.
unauthorised intrusion upon, or use of, the lands of
the peoples concerned, and governments shall take 26.2. Some of the goals inherent in the objectives
measures to prevent such offences. and activities of this programme area are already
contained in such international legal instruments as
the ILO Indigenous and Tribal Peoples Convention
Article 19 (No. 169) and are being incorporated into the draft
National agrarian programmes shall secure to the universal declaration on indigenous rights, being
peoples concerned treatment equivalent to that prepared by the United Nations working group on
accorded to other sectors of the population with indigenous populations. The International Year for
regard to: the World’s Indigenous People (1993), proclaimed
by the General Assembly in its resolution 45/164 of
(a) The provision of more land for these peoples 18 December 1990, presents a timely opportunity
when they have not the area necessary for providing to mobilize further international technical and
the essentials of a normal existence, or for any financial cooperation.
possible increase in their numbers;
(b) The provision of the means required to promote Objectives
the development of the lands which these peoples
26.3. In full partnership with indigenous people and
already possess.
their communities, Governments and, where appro-
priate, intergovernmental organizations should aim
at fulfilling the following objectives:
ARTICLE 21
(a) Establishment of a process to empower indigen-
ous people and their communities through measures
RECOGNIZING AND that include:
STRENGTHENING THE ROLE OF
INDIGENOUS PEOPLE AND THEIR i. Adoption or strengthening of appropriate policies
and/or legal instruments at the national level;
COMMUNITIES
ii. Recognition that the lands of indigenous people
and their communities should be protected from
Basis for action
activities that are environmentally unsound or that
26.1. Indigenous people and their communities the indigenous people concerned consider to be
have an historical relationship with their lands and socially and culturally inappropriate;
are generally descendants of the original inhabitants
iii. Recognition of their values, traditional knowledge
of such lands. In the context of this chapter the term
and resource management practices with a view to
‘lands’ is understood to include the environment of
promoting environmentally sound and sustainable
the areas which the people concerned traditionally
development;
occupy. Indigenous people and their communities
 APPENDIX 3 299

iv. Recognition that traditional and direct depend- 26.5. United Nations organizations and other inter-
ence on renewable resources and ecosystems, in- national development and finance organizations and
cluding sustainable harvesting, continues to be essen- Governments should, drawing on the active partici-
tial to the cultural, economic and physical well-being pation of indigenous people and their communities,
of indigenous people and their communities; as appropriate, take the following measures, inter
alia, to incorporate their values, views and knowledge,
v. Development and strengthening of national including the unique contribution of indigenous
dispute-resolution arrangements in relation to settle- women, in resource management and other policies
ment of land and resource-management concerns; and programmes that may affect them:
vi. Support for alternative environmentally sound (a) Appoint a special focal point within each interna-
means of production to ensure a range of choices tional organization, and organize annual interorgani-
on how to improve their quality of life so that they zational coordination meetings in consultation
effectively participate in sustainable development; with Governments and indigenous organizations,
vii. Enhancement of capacity-building for indigenous as appropriate, and develop a procedure within
communities, based on the adaptation and exchange and between operational agencies for assist-
of traditional experience, knowledge and resource- ing Governments in ensuring the coherent and
management practices, to ensure their sustainable coordinated incorporation of the views of indigenous
development; people in the design and implementation of policies
and programmes. Under this procedure, indigenous
(b) Establishment, where appropriate, of arrange- people and their communities should be informed
ments to strengthen the active participation of and consulted and allowed to participate in national
indigenous people and their communities in the decision-making, in particular regarding regional
national formulation of policies, laws and pro- and international cooperative efforts. In addition,
grammes relating to resource management and these policies and programmes should take fully
other development processes that may affect them, into account strategies based on local indigenous
and their initiation of proposals for such policies initiatives;
and programmes;
(b) Provide technical and financial assistance for
(c) Involvement of indigenous people and their com- capacity-building programmes to support the sustain-
munities at the national and local levels in resource able self-development of indigenous people and
management and conservation strategies and other their communities;
relevant programmes established to support and
review sustainable development strategies, such (c) Strengthen research and education programmes
as those suggested in other programme areas of aimed at:
Agenda 21. i. Achieving a better understanding of indigenous
people’s knowledge and management experience
Activities related to the environment, and applying this to
contemporary development challenges;
26.4. Some indigenous people and their communities
may require, in accordance with national legislation, ii. Increasing the efficiency of indigenous people’s
greater control over their lands, self-management of resource management systems, for example, by pro-
their resources, participation in development deci- moting the adaptation and dissemination of suitable
sions affecting them, including, where appropriate, technological innovations;
participation in the establishment or management (d) Contribute to the endeavours of indigenous
of protected areas. The following are some of the people and their communities in resource manage-
specific measures which Governments could take: ment and conservation strategies (such as those that
(a) Consider the ratification and application of exist- may be developed under appropriate projects funded
ing international conventions relevant to indigenous through the Global Environment Facility and the
people and their communities (where not yet done) Tropical Forestry Action Plan) and other programme
and provide support for the adoption by the General areas of Agenda 21, including programmes to
Assembly of a declaration on indigenous rights; collect, analyze and use data and other information
in support of sustainable development projects.
(b) Adopt or strengthen appropriate policies and/
or legal instruments that will protect indigenous 26.6. Governments, in full partnership with indigen-
intellectual and cultural property and the right to ous people and their communities should, where
preserve customary and administrative systems and appropriate:
practices.
300 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

(a) Develop or strengthen national arrangements Commission on Prevention of Discrimination and

to consult with indigenous people and their com- Protection of Minorities by its resolution 1994/45,
munities with a view to reflecting their needs and 26 August 1994, UN Doc. E/CN.4/1995/2, E/CN.4/
incorporating their values and traditional and Sub2/1994/56 at 105, 194.
other knowledge and practices in national poli-
Affirming that indigenous peoples are equal in dignity
cies and programmes in the field of natural re-
and rights to all other peoples, while recognizing
source management and conservation and other
the right of all peoples to be different, to consider
development programmes affecting them;
themselves different, and to be respected as such,
(b) Cooperate at the regional level, where appro-
Affirming also that all peoples contribute to the
priate, to address common indigenous issues with a
diversity and richness of civilizations and cultures,
view to recognizing and strengthening their partici-
which constitute the common heritage of human-
pation in sustainable development.
kind,
Affirming further that all doctrines, policies and
Means of implementation practices based on or advocating superiority of
A) Financing and cost evaluation peoples or individuals on the basis of national origin,
racial, religious, ethnic or cultural differences are
26.7. The Conference secretariat has estimated the racist, scientifically false, legally invalid, morally
average total annual cost (1993–2000) of imple- condemnable and socially unjust,
menting the activities of this programme to be about
$3 million on grant or concessional terms. These are Reaffirming also that indigenous peoples, in the exer-
indicative and order-of-magnitude estimates only cise of their rights, should be free from discrimination
and have not been reviewed by Governments. Actual of any kind,
costs and financial terms, including any that are
Concerned that indigenous peoples have been de-
non-concessional, will depend upon, inter alia, the
prived of their human rights and fundamental
specific strategies and programmes Governments
freedoms, resulting, inter alia, in their colonization
decide upon for implementation.
and dispossession of their lands, territories and
B) Legal and administrative frameworks resources, thus preventing them from exercising, in
particular, their right to development in accordance
26.8. Governments should incorporate, in collabora- with their own needs and interests,
tion with the indigenous people affected, the
rights and responsibilities of indigenous people Recognizing the urgent need to respect and promote
and their communities in the legislation of each the inherent rights and characteristics of indigenous
country, suitable to the country’s specific situation. peoples, especially their rights to their lands, terri-
Developing countries may require technical assist- tories and resources, which derive from their
ance to implement these activities. political, economic and social structures and from
their cultures, spiritual traditions, histories and
C) Human resource development philosophies,
26.9. International development agencies and Welcoming the fact that indigenous peoples are
Governments should commit financial and other organizing themselves for political, economic, social
resources to education and training for indigenous and cultural enhancement and in order to bring an
people and their communities to develop their capa- end to all forms of discrimination and oppression
cities to achieve their sustainable self-development, wherever they occur,
and to contribute to and participate in sustainable
and equitable development at the national level. Convinced that control by indigenous peoples over
Particular attention should be given to strengthening developments affecting them and their lands, terri-
the role of indigenous women. tories and resources will enable them to maintain
and strengthen their institutions, cultures and
traditions, and to promote their development in
DRAFT UNITED NATIONS accordance with their aspirations and needs,
DECLARATION ON THE RIGHTS
OF INDIGENOUS PEOPLES Recognizing also that respect for indigenous know-
ledge, cultures and traditional practices contributes
As agreed upon by the members of the UN Working to sustainable and equitable development and
Group on Indigenous Populations at its eleventh proper management of the environment,
session, Geneva, July 1998, adopted by the UN Sub-
 APPENDIX 3 301

Emphasizing the need for demilitarization of the United Nations, the Universal Declaration of Human
lands and territories of indigenous peoples, which Rights and international human rights law.
will contribute to peace, economic and social pro-
gress and development, understanding and friendly Article 2
relations among nations and peoples of the world,
Indigenous individuals and peoples are free and
Recognizing in particular the right of indigenous fami-
equal to all other individuals and peoples in dignity
lies and communities to retain shared responsibility
and rights, and have the right to be free from any
for the upbringing, training, education and well-
kind of adverse discrimination, in particular that
being of their children,
based on their indigenous origin or identity.
Recognizing also that indigenous peoples have the
right freely to determine their relationships with
Article 3
States in a spirit of coexistence, mutual benefit and
full respect, Indigenous peoples have the right of self-determina-
tion. By virtue of that right they freely determine their
Considering that treaties, agreements and other
political status and freely pursue their economic,
arrangements between States and indigenous peoples
social and cultural development.
are properly matters of international concern and
responsibility,
Article 4
Acknowledging that the Charter of the United Nations,
the International Covenant on Economic, Social and Indigenous peoples have the right to maintain and
Cultural Rights and the International Covenant on strengthen their distinct political, economic, social
Civil and Political Rights affirm the fundamental and cultural characteristics, as well as their legal
importance of the right of self-determination of all systems, while retaining their rights to participate
peoples, by virtue of which they freely determine their fully, if they so choose, in the political, economic,
political status and freely pursue their economic, social and cultural life of the State.
social and cultural development,
Bearing in mind that nothing in this Declaration Article 5
may be used to deny any peoples their right of self-
Every indigenous individual has the right to a
determination,
nationality.
Encouraging States to comply with and effectively
implement all international instruments, in partic- PART II
ular those related to human rights, as they apply to
indigenous peoples, in consultation and cooperation
with the peoples concerned, Article 6
Emphasizing that the United Nations has an import- Indigenous peoples have the collective right to live
ant and continuing role to play in promoting and in freedom, peace and security as distinct peoples
protecting the rights of indigenous peoples, and to full guarantees against genocide or any other
act of violence, including the removal of indigenous
Believing that this Declaration is a further important children from their families and communities under
step forward for the recognition, promotion and any pretext.
protection of the rights and freedoms of indigenous
peoples and in the development of relevant activities In addition, they have the individual rights to life,
of the United Nations system in this field, physical and mental integrity, liberty and security of
person.
Solemnly proclaims the following United Nations
Declaration on the Rights of Indigenous Peoples:
Article 7
PART I Indigenous peoples have the collective and individual
right not to be subjected to ethnocide and cultural
genocide, including prevention of and redress for:
Article 1
(a) Any action which has the aim or effect of depriv-
Indigenous peoples have the right to the full and ing them of their integrity as distinct peoples, or of
effective enjoyment of all human rights and funda- their cultural values or ethnic identities;
mental freedoms recognized in the Charter of the
302 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

(b) Any action which has the aim or effect of dispos- (d) Force indigenous individuals to work for military
sessing them of their lands, territories or resources; purposes under any discriminatory conditions.
(c) Any form of population transfer which has the
aim or effect of violating or undermining any of PART III
their rights;
Article 12
(d) Any form of assimilation or integration by other
cultures or ways of life imposed on them by legisla- Indigenous peoples have the right to practise and
tive, administrative or other measures; revitalize their cultural traditions and customs. This
includes the right to maintain, protect and develop
(e) Any form of propaganda directed against them. the past, present and future manifestations of their
cultures, such as archaeological and historical sites,
artifacts, designs, ceremonies, technologies and
Article 8
visual and performing arts and literature, as well as
Indigenous peoples have the collective and individual the right to the restitution of cultural, intellectual,
right to maintain and develop their distinct identities religious and spiritual property taken without their
and characteristics, including the right to identify free and informed consent or in violation of their
themselves as indigenous and to be recognized as laws, traditions and customs.
such.
Article 13
Article 9
Indigenous peoples have the right to manifest,
Indigenous peoples and individuals have the right practise, develop and teach their spiritual and reli-
to belong to an indigenous community or nation, in gious traditions, customs and ceremonies; the right
accordance with the traditions and customs of the to maintain, protect, and have access in privacy to
community or nation concerned. No disadvantage their religious and cultural sites; the right to the use
of any kind may arise from the exercise of such a and control of ceremonial objects; and the right to
right. the repatriation of human remains.
States shall take effective measures, in conjunction
Article 10 with the indigenous peoples concerned, to ensure
that indigenous sacred places, including burial sites,
Indigenous peoples shall not be forcibly removed
be preserved, respected and protected.
from their lands or territories. No relocation shall
take place without the free and informed consent
of the indigenous peoples concerned and after Article 14
agreement on just and fair compensation and, where
Indigenous peoples have the right to revitalize, use,
possible, with the option of return.
develop and transmit to future generations their
histories, languages, oral traditions, philosophies,
Article 11 writing systems and literatures, and to designate and
retain their own names for communities, places and
Indigenous peoples have the right to special pro-
persons.
tection and security in periods of armed conflict.
States shall take effective measures, whenever any
States shall observe international standards, in partic-
right of indigenous peoples may be threatened, to
ular the Fourth Geneva Convention of 1949, for the
ensure this right is protected and also to ensure that
protection of civilian populations in circumstances
they can understand and be understood in political,
of emergency and armed conflict, and shall not:
legal and administrative proceedings, where neces-
(a) Recruit indigenous individuals against their will sary through the provision of interpretation or by
into the armed forces and, in particular, for use other appropriate means.
against other indigenous peoples;
(b) Recruit indigenous children into the armed
forces under any circumstances;
(c) Force indigenous individuals to abandon their
lands, territories or means of subsistence, or relocate
them in special centres for military purposes;
 APPENDIX 3 303

PART IV PART V
Article 19
Article 15
Indigenous peoples have the right to participate
Indigenous children have the right to all levels and fully, if they so choose, at all levels of decision-
forms of education of the State. All indigenous making in matters which may affect their rights,
peoples also have this right and the right to establish lives and destinies through representatives chosen
and control their educational systems and institutions by themselves in accordance with their own pro-
providing education in their own languages, in a cedures, as well as to maintain and develop their own
manner appropriate to their cultural methods of indigenous decision-making institutions.
teaching and learning.
Indigenous children living outside their communities Article 20
have the right to be provided access to education in
their own culture and language. Indigenous peoples have the right to participate fully,
if they so choose, through procedures determined
States shall take effective measures to provide appro- by them, in devising legislative or administrative
priate resources for these purposes. measures that may affect them.
States shall obtain the free and informed consent of
Article 16 the peoples concerned before adopting and imple-
Indigenous peoples have the right to have the dignity menting such measures.
and diversity of their cultures, traditions, histories
and aspirations appropriately reflected in all forms Article 21
of education and public information.
Indigenous peoples have the right to maintain and
States shall take effective measures, in consultation develop their political, economic and social systems,
with the indigenous peoples concerned, to eliminate to be secure in the enjoyment of their own means of
prejudice and discrimination and to promote toler- subsistence and development, and to engage freely
ance, understanding and good relations among in- in all their traditional and other economic activities.
digenous peoples and all segments of society. Indigenous peoples who have been deprived of their
means of subsistence and development are entitled
to just and fair compensation.
Article 17
Indigenous peoples have the right to establish Article 22
their own media in their own languages. They also
have the right to equal access to all forms of non- Indigenous peoples have the right to special meas-
indigenous media. ures for the immediate, effective and continuing
improvement of their economic and social conditions,
States shall take effective measures to ensure that including in the areas of employment, vocational
State-owned media duly reflect indigenous cultural training and retraining, housing, sanitation, health
diversity. and social security.
Particular attention shall be paid to the rights and
Article 18 special needs of indigenous elders, women, youth,
Indigenous peoples have the right to enjoy fully all children and disabled persons.
rights established under international labour law
and national labour legislation. Article 23
Indigenous individuals have the right not to be sub- Indigenous peoples have the right to determine
jected to any discriminatory conditions of labour, and develop priorities and strategies for exercising
employment or salary. their right to development. In particular, indigenous
peoples have the right to determine and develop
all health, housing and other economic and social
programmes affecting them and, as far as possible,
to administer such programmes through their own
institutions.
304 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

and resources, as well as to assistance for this purpose

Article 24
from States and through international cooperation.
Indigenous peoples have the right to their traditional Military activities shall not take place in the lands and
medicines and health practices, including the right territories of indigenous peoples, unless otherwise
to the protection of vital medicinal plants, animals freely agreed upon by the peoples concerned.
and minerals.
States shall take effective measures to ensure that
They also have the right to access, without any dis- no storage or disposal of hazardous materials shall
crimination, to all medical institutions, health serv- take place in the lands and territories of indigenous
ices and medical care. peoples.
States shall also take effective measures to ensure,
PART VI as needed, that programmes for monitoring, main-
taining and restoring the health of indigenous
Article 25 peoples, as developed and implemented by the
peoples affected by such materials, are duly imple-
Indigenous peoples have the right to maintain and mented.
strengthen their distinctive spiritual and material
relationship with the lands, territories, waters
and coastal seas and other resources which they Article 29
have traditionally owned or otherwise occupied or Indigenous peoples are entitled to the recognition
used, and to uphold their responsibilities to future of the full ownership, control and protection of their
generations in this regard. cultural and intellectual property.
They have the right to special measures to control,
Article 26 develop and protect their sciences, technologies and
Indigenous peoples have the right to own, develop, cultural manifestations, including human and other
control and use the lands and territories, including genetic resources, seeds, medicines, knowledge of
the total environment of the lands, air, waters, the properties of fauna and flora, oral traditions,
coastal seas, sea-ice, flora and fauna and other literatures, designs and visual and performing arts.
resources which they have traditionally owned or
otherwise occupied or used. This includes the right
to the full recognition of their laws, traditions and Article 30
customs, land-tenure systems and institutions for the
development and management of resources, and the Indigenous peoples have the right to determine and
right to effective measures by States to prevent any develop priorities and strategies for the development
interference with, alienation of or encroachment or use of their lands, territories and other resources,
upon these rights. including the right to require that States obtain their
free and informed consent prior to the approval
Article 27 of any project affecting their lands, territories and
other resources, particularly in connection with the
Indigenous peoples have the right to the restitution development, utilization or exploitation of mineral,
of the lands, territories and resources which they water or other resources. Pursuant to agreement
have traditionally owned or otherwise occupied or with the indigenous peoples concerned, just and
used, and which have been confiscated, occupied, fair compensation shall be provided for any such
used or damaged without their free and informed activities and measures taken to mitigate adverse
consent. Where this is not possible, they have the environmental, economic, social, cultural or spiritual
right to just and fair compensation. Unless otherwise impact.
freely agreed upon by the peoples concerned,
compensation shall take the form of lands, territories
and resources equal in quality, size and legal status. PART VII

Article 28 Article 31
Indigenous peoples have the right to the conservation,
restoration and protection of the total environment Indigenous peoples, as a specific form of exercising
and the productive capacity of their lands, territories their right to self-determination, have the right to
 APPENDIX 3 305

autonomy or self-government in matters relating to submitted to competent international bodies agreed

their internal and local affairs, including culture, to by all parties concerned.
religion, education, information, media, health,
housing, employment, social welfare, economic activi-
ties, land and resources management, environment PART VIII
and entry by non-members, as well as ways and means
for financing these autonomous functions. Article 37
States shall take effective and appropriate measures,
Article 32 in consultation with the indigenous peoples con-
cerned, to give full effect to the provisions of this
Indigenous peoples have the collective right to deter- Declaration. The rights recognized herein shall
mine their own citizenship in accordance with their be adopted and included in national legislation in
customs and traditions. Indigenous citizenship does such a manner that indigenous peoples can avail
not impair the right of indigenous individuals to themselves of such rights in practice.
obtain citizenship of the States in which they live.
Indigenous peoples have the right to determine Article 38
the structures and to select the membership of
their institutions in accordance with their own Indigenous peoples have the right to have access to
procedures. adequate financial and technical assistance, from
States and through international cooperation,
to pursue freely their political, economic, social,
Article 33 cultural and spiritual development and for the
Indigenous peoples have the right to promote, enjoyment of the rights and freedoms recognized in
develop and maintain their institutional structures this Declaration.
and their distinctive juridical customs, traditions,
procedures and practices, in accordance with inter- Article 39
nationally recognized human rights standards.
Indigenous peoples have the right to have access to
and prompt decision through mutually acceptable
Article 34 and fair procedures for the resolution of conflicts
Indigenous peoples have the collective right to and disputes with States, as well as to effective reme-
determine the responsibilities of individuals to their dies for all infringements of their individual and
communities. collective rights. Such a decision shall take into con-
sideration the customs, traditions, rules and legal
systems of the indigenous peoples concerned.
Article 35
Indigenous peoples, in particular those divided by Article 40
international borders, have the right to maintain
and develop contacts, relations and cooperation, The organs and specialized agencies of the United
including activities for spiritual, cultural, political, Nations system and other intergovernmental organi-
economic and social purposes, with other peoples zations shall contribute to the full realization of the
across borders. provisions of this Declaration through the mobiliza-
tion, inter alia, of financial cooperation and technical
States shall take effective measures to ensure the assistance. Ways and means of ensuring participation
exercise and implementation of this right. of indigenous peoples on issues affecting them shall
be established.
Article 36
Article 41
Indigenous peoples have the right to the recognition,
observance and enforcement of treaties, agreements The United Nations shall take the necessary steps
and other constructive arrangements concluded to ensure the implementation of this Declaration
with States or their successors, according to their including the creation of a body at the highest
original spirit and intent, and to have States honour level with special competence in this field and with
and respect such treaties, agreements and other the direct participation of indigenous peoples. All
constructive arrangements. Conflicts and disputes United Nations bodies shall promote respect for and
which cannot otherwise be settled should be full application of the provisions of this Declaration.
306 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

PART IX Further recalling that some of the democratic institu-

tions and concepts embodied in the constitutions
of American states originate from institutions of
Article 42 the indigenous peoples, and that in many instances
their present participatory systems for decision-
The rights recognized herein constitute the mini-
making and for authority contribute to improving
mum standards for the survival, dignity and well- democracies in the Americas.
being of the indigenous peoples of the world.
Recalling the need to develop their national juridical
systems to consolidate the pluricultural nature of
Article 43
our societies.
All the rights and freedoms recognized herein are
2. Eradication of poverty and the right to develop-
equally guaranteed to male and female indigenous
ment
individuals.
Concerned about the frequent deprivation afflicting
Article 44 indigenous peoples of their human rights and
fundamental freedoms; within and outside their
Nothing in this Declaration may be construed as communities, as well as the dispossession of their
diminishing or extinguishing existing or future lands, territories and resources, thus preventing
rights indigenous peoples may have or acquire. them from exercising, in particular, their right to
development in accordance with their own traditions,
Article 45 needs and interests.
Recognizing the severe impoverishment afflicting
Nothing in this Declaration may be interpreted as
indigenous peoples in several regions of the Hem-
implying for any State, group or person any right to
isphere and that their living conditions are generally
engage in any activity or to perform any act contrary
deplorable.
to the Charter of the United Nations.
And recalling that in the Declaration of Principles
issued by the Summit of the Americas in December
PROPOSED AMERICAN 1994, the heads of state and governments declared
that in observance of the International Decade of
DECLARATION ON THE the World’s Indigenous People, they will focus their
RIGHTS OF INDIGENOUS energies on improving the exercise of democratic
PEOPLES rights and the access to social services by indigenous
peoples and their communities.
Approved by the Inter-American Commission on
3. Indigenous culture and ecology
Human Rights on 26 February 1997 at its 1333rd
session, 95th regular session OAS Doc. OEA/Ser.L/ Recognizing the respect for the environment ac-
V/II.95.Doc.7.rev (1996). corded by the cultures of indigenous peoples of
the Americas, and considering the special rela-
Preamble tionship between the indigenous peoples and the
environment, lands, resources and territories on
1. Indigenous institutions and the strengthening of which they live and their natural resources.
nations
4. Harmonious relations, respect and the absence of
The member states of the OAS (hereafter the
discrimination
states),
Reaffirming the responsibility of all states and
Recalling that the indigenous peoples of the Ameri-
peoples of the Americas to end racism and racial
cas constitute an organized, distinctive and integral
discrimination, with a view to establishing harmonious
segment of their population and are entitled to
relations and respect among all peoples.
be part of the national identities of the countries
of the Americas, and have a special role to play in
5. Territories and indigenous survival
strengthening the institutions of the state and in
establishing national unity based on democratic Recognizing that in many indigenous cultures, tradi-
principles; and, tional collective systems for control and use of land,
territory and resources, including bodies of water
 APPENDIX 3 307

and coastal areas, are a necessary condition for their regulated wholly or partially by their own customs or
survival, social organization, development and their traditions or by special laws or regulations.
individual and collective well-being; and that the
2. Self identification as indigenous shall be regarded
form of such control and ownership is varied and
as a fundamental criterion for determining the
distinctive and does not necessarily coincide with the
peoples to which the provisions of this Declaration
systems protected by the domestic laws of the states
apply.
in which they live.
3. The use of the term ‘peoples’ in this Instrument
6. Security and indigenous areas shall not be construed as having any implication with
respect to any other rights that might be attached to
Reaffirming that the armed forces in indigenous
that term in international law.
areas shall restrict themselves to the performance of
their functions and shall not be the cause of abuses
or violations of the rights of indigenous peoples.
SECTION TWO. HUMAN RIGHTS
7. Human rights instruments and other advances in
international law Article II. Full observance of human rights
Recognizing the paramouncy and applicability to the
states and peoples of the Americas of the American 1. Indigenous peoples have the right to the full
Declaration of the Rights and Duties of Man, the and effective enjoyment of the human rights and
American Convention on Human Rights and other fundamental freedoms recognized in the Charter
human rights instruments of inter-American and of the OAS, the American Declaration of the Rights
international law; and and Duties of Man, the American Convention on
Human Rights, and other international human
Recognizing that indigenous peoples are a subject
rights law; and nothing in this Declaration shall be
of international law, and mindful of the progress
construed as in any way limiting or denying those
achieved by the states and indigenous organizations,
rights or authorizing any action not in accordance
especially in the sphere of the United Nations and
with the instruments of international law including
the International Labor Organization, in several
human rights law.
international instruments, particularly in the ILO
Convention 169. 2. Indigenous peoples have the collective rights that
are indispensable to the enjoyment of the individual
Affirming the principle of the universality and
human rights of their members. Accordingly the
indivisibility of human rights, and the application of
states recognize inter alia the right of the indigenous
international human rights to all individuals.
peoples to collective action, to their cultures, to
profess and practice their spiritual beliefs, and to use
8. Enjoyment of collective rights
their languages.
Recalling the international recognition of rights that
3. The states shall ensure for indigenous peoples
can only be enjoyed when exercised collectively.
the full exercise of all rights, and shall adopt in
accordance with their constitutional processes such
9. Advances in the provisions of national instruments
legislative or other measures as may be necessary
Noting the constitutional, legislative and jurispru- to give effect to the rights recognized in this
dential advances achieved in the Americas in guaran- Declaration.
teeing the rights and institutions of indigenous
peoples.
Article III. Right to belong to indigenous
SECTION ONE. INDIGENOUS peoples
PEOPLES
Indigenous peoples and communities have the right
to belong to indigenous peoples, in accordance with
Article I. Scope and definitions the traditions and customs of the peoples or nation
concerned.
1. This Declaration applies to indigenous peoples as
well as peoples whose social, cultural and economic
conditions distinguish them from other sections
of the national community, and whose status is
308 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Article IV. Legal status of communities 3. The States Parties to the present Covenant, in-
cluding those having responsibility for the admini-
Indigenous peoples have the right to have their legal stration of Non-Self-Governing and Trust Territories,
personality fully recognized by the states within their shall promote the realization of the right of self-
systems. determination, and shall respect that right, in
conformity with the provisions of the Charter of the
Article V. No forced assimilation United Nations.

1. Indigenous peoples have the right to freely

preserve, express and develop their cultural identity CONVENTION ON
in all its aspects, free of any attempt at assimilation.
BIOLOGICAL DIVERSITY
2. The states shall not undertake, support or favour
any policy of artificial or enforced assimilation of
indigenous peoples, destruction of a culture or the Article 8. In-situ Conservation
possibility of the extermination of any indigenous
Each Contracting Party shall, as far as possible and
peoples.
as appropriate:
(a) Establish a system of protected areas or areas
Article VI. Special guarantees against
where special measures need to be taken to conserve
discrimination biological diversity;

1. Indigenous peoples have the right to special (b) Develop, where necessary, guidelines for the
guarantees against discrimination that may have selection, establishment and management of pro-
to be instituted to fully enjoy internationally and tected areas or areas where special measures need to
nationally-recognized human rights; as well as meas- be taken to conserve biological diversity;
ures necessary to enable indigenous women, men (c) Regulate or manage biological resources import-
and children to exercise, without any discrimin- ant for the conservation of biological diversity
ation, civil, political, economic, social, cultural and whether within or outside protected areas, with a
spiritual rights. The states recognize that violence view to ensuring their conservation and sustainable
exerted against persons because of their gender use;
and age prevents and nullifies the exercise of those
rights. (d) Promote the protection of ecosystems, natural
habitats and the maintenance of viable populations
2. Indigenous peoples have the right to fully partici- of species in natural surroundings;
pate in the prescription of such guarantees.
(e) Promote environmentally sound and sustainable
development in areas adjacent to protected areas
INTERNATIONAL COVENANT with a view to furthering protection of these areas;

ON CIVIL AND POLITICAL (f) Rehabilitate and restore degraded ecosystems and
promote the recovery of threatened species, inter
RIGHTS alia, through the development and implementation
of plans or other management strategies;
Article 1 (g) Establish or maintain means to regulate, man-
1. All peoples have the right of self-determination. age or control the risks associated with the use
By virtue of that right they freely determine their and release of living modified organisms resulting
political status and freely pursue their economic, from biotechnology which are likely to have ad-
social and cultural development. verse environmental impacts that could affect the
conservation and sustainable use of biological divers-
2. All peoples may, for their own ends, freely dis- ity, taking also into account the risks to human
pose of their natural wealth and resources without health;
prejudice to any obligations arising out of inter-
national economic co-operation, based upon the (h) Prevent the introduction of, control or eradicate
principle of mutual benefit, and international law. In those alien species which threaten ecosystems, habi-
no case may a people be deprived of its own means tats or species;
of subsistence.
 APPENDIX 3 309

(i) Endeavour to provide the conditions needed (k) Develop or maintain necessary legislation and/
for compatibility between present uses and the con- or other regulatory provisions for the protection of
servation of biological diversity and the sustainable threatened species and populations;
use of its components;
(l) Where a significant adverse effect on biological
(j) Subject to its national legislation, respect, pre- diversity has been determined pursuant to Article
serve and maintain knowledge, innovations and 7, regulate or manage the relevant processes and
practices of indigenous and local communities em- categories of activities; and
bodying traditional lifestyles relevant for the con-
servation and sustainable use of biological diversity (m) Cooperate in providing financial and other
and promote their wider application with the support for in-situ conservation outlined in sub-
approval and involvement of the holders of such paragraphs (a) to (l) above, particularly to devel-
knowledge, innovations and practices and encourage oping countries.
the equitable sharing of the benefits arising from
the utilization of such knowledge, innovations and
practices;
 List of Acronyms and Abbreviations

ACIA Arctic Climate Impact Assessment

ATCA Alien Torts Claims Act
BIOT British Indian Ocean Territory
BRDN Buffalo River Dene Nation
CBD Convention on Biological Diversity
CERD Committee on the Elimination of Racial Discrimination
CID corporate internal decision-making
CRC Convention on the Rights of the Child
ECHR European Court of Human Rights
EEA European Environmental Agency
EFA ecological footprint analysis
FAO Food and Agriculture Organization of the United Nations
FCTC Framework Convention on Tobacco Control
FPIC free, prior, informed consent
FPICon free, prior, informed consultation
IACHR Inter-American Court of Human Rights
IBI Index of Biotic Integrity
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
IJC International Joint Commission (Canada and US)
ILO International Labour Organization
IMF International Monetary Fund
IUCN World Conservation Union
MNC multinational corporation
MOSOP Movement for Survival of the Ogoni People
MPA marine protected area
OAS Organization of American States
PCB polychlorinated biphenyl
REACH Registration, Evaluation and Authorization of Chemicals
TAN transnational advocacy network
TNC transnational corporation
UNDD United Nations Draft Declaration on the Rights of Indigenous Peoples
UNDP United Nations Development Programme
UNEP United Nations Environment Programme
UNESCO United Nations Economic, Scientific and Cultural Organization
UNHRC United Nations Human Rights Committee
312 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

WHA World Health Assembly

WHO World Health Organization
WTO World Trade Organization
WWF World Wildlife Fund
 List of Cases

AUSTRALIA

Aboriginal Community v. Victoria (2002) 194 ALR 538

Dagi; Shackles, Ambeu; Maur and others v. the Broken Hill Proprietary Company Ltd. and Ok Tedi Mining
Limited (No. 2) [1997] Victoria Reports [VR] 428
Mabo v. Queensland, 83 ALR High Court of Australia, (1992) 175 CL
Western Australia v. Ward (2002) 194 ALR 538
Wik Peoples v. Queensland (1996) 187 CLR 1
Yorta Yorta Aboriginal Community v. Victoria (1998) 1606 FLR

CANADA

Corinthe v. Seminary of St. Sulpice of Montreal 5 DLR, Judicial Committee of the Jury Council, 19
July 1992
Dashowa Inc. v. Friends of the Lubicon, (1998) 158 DLR (4) 699 (Ont. Gen. Div.)
Delgamuukw v. British Columbia [1997] 3 SCR 1010
Delgamuukw v. British Columbia [1998] 1 CNLR 14, 11 December 1997
Dunbar v. the King (1936)
Guerin v. Canada [1984] 2 SCR 335
Halfway River First Nation v. British Columbia (Minister of Forests) (1999) 178 DLR (4) 666 716
Lubicon Lake Band v. Canada, Communication No. 167/1984
Marshall v. The Queen [1993] 3 SCR 456
Monsanto (Canada) Inc. v. Schmeiser [2004] 1 SCR 902
Ominayak v. Canada, UN GAOR, 45 Sess., Supp. No. 40, Annex 9 at 27, UN Doc. A/45/40(1990)
R. v. Colgate Palmolive 8 CCC (2d) 40 1972 Ontario High Court of Justice
R. v. Hibbert ([1995] 2 SCR 973, 99 CCC (3) 193
R. v. Marshall; R. v. Bernard (2005), 2 SCR 220
R. v. Paquette [1977] 2 S.C.R. 189 30 CCC 22417
R. v. Sparrow, 70 DLR 4 (1990)385 401
R. L. et al v. Canada, Communication No. 358/1989 views of 5 November 1991, [1992] Annual
Report: 358
R. v. Gladstone , 137 DLR 4 648, 9 WWR1 1996
R. v. Pamajewon, 138 DLR 4 204
R. v. Sparrow [1990] 1 SCR 1075
R. v. Van der Peet, 137 DLR 4 289, 9 WWR1 (Can. 1996)
R. v. Wholesale Travel Group Inc (1991) 3 SCR 154
314 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Reference re Secession of Quebec, 20 August 1998, SCR 2[1998], 281

Rex v. Dunbar [1935] BCJ No. 6, [1936] 3 WWR 99, 51 BCR 20
Smith, Kline and French Laboratories Ltd T. et al v. A.-G. Canada (1985), 7 CPR (2d) 145 (FCTD)
Surrey Credit Union v. Mendonca (1985), 67 BCLR 310 SC
Van der Peet, 137 DLR 4 289

EUROPE

Fadeyeva v. Russia [2005] ECHR 55723/00, European Court of Human Rights, 1 July 2004 and
19 May 2005
France et al v. Goering et al (946) 22 IMT 203, p. 528
Fredin v. Sweden [1991] ECHR 12033/86
G. and E. v. Norway Apps., No. 9278/81 and 9415/81, 35 Eur. Comm’n H.R. Doc. And Rep. 30,
35 (1984)
Guerra v. Italy [1998] ECHR 14967/89
Hatton and Other v. UK [2003] ECHR 36022/97
Ilmari Lansman et al v. Finland, Communication No.511/1992: Finland, 08/11/94
Ivan Kitok v. Sweden, Communication No. 197/1985, CCPR/C/33/D/197/1985 (1988)
Le Louis, 2 Dods. Rep. 210–212, 237–259
Le Louis, 2 Dodson Rep.238, Judgement – Sir William Scott at 248
Lopez-Ostra v. Spain (1995) 20 HER 277m (1994) ECHR 16798/90
Lopez-Ostra v. Spain [1994] ECHR 16798/90
Rylands v. Fletcher (1865–1868), 3H. and C. 744 (Exch.); L.R. 1 Ex.265 (Exch. Ch.); L.R.3 H.L.
330 (H.L.)

INTERNATIONAL

Advisory Opinion (WHO) [1996] ICJ Rep. 66

Australia v. France, 1974, ICJ Reports 1974, 253
Bagilishema (ICTR-95-1at) Judgement, 7 June 2001, para. 80
Barcelona Traction, Light and Power Co. Ltd Second Phase, Judgement ICJ Reports 1970, p.3
Burkina-Faso v. Republic of Mali, ICJ Reps. 1986, 586
Case concerning East Timor (Portugal v. Australia) 1995 ICJ 90
Chorozow Factory case, PCIJ, Ser. A, No. 17, p. 29
Corfu Channel (UK v. Albania) 1949 ICJ 4 (April 1949)
Gabcikovo-Nagymaros case, ICJ (1997) Rep. 7, Judge C. Weeramantry, Separate
Hopu and Besent v. France, UN GAOR, 52 Sess., Supp., No. 4, UN Doc. A/52/40 (1997)
Lake Lanoux Arbitration (France v. Spain) (1957) 12 RIAA 281, Arbitral Tribunal, 16 November
Lovelace, Communication No. 24/1977. 30 July 1981
Lovelace v. Canada, No. 24/1977
The Mayagna (Sumo) Awas Tingni Community Case – Series C, No. 79 [2001] 1A CHR 9 (31 August
2001)
Minors Oposa v. Secretary of the Dept. of Environmental and Natural Resources, (Philippines 1993), 33
ILM 173 (1994)
New Zealand v. France, 1974, ICJ 457
Nicaragua v. United States of America (1986) ICJ 14
Nuclear Tests case (Australia v. France) 1974 ICJ 253
 LIST OF CASES 315

Nuclear Tests case (New Zealand v. France) 457

Prosecutor v. Akayesu (Case No. ICTR-96-4-T) Judgement, 2 September 1998, paras 477, 731–733
Prosecutor v. Delalic et al, Case No. IT-96-21-T, Judgement, 16 November, 1998
Prosecutor v. Tadic (Case No. IT-94-I-T, Opinion and Judgement, 7 May, 1997
South West Africa cases, 1966 ICJ 4
UK v. Albania (1949) ICJ Rep. 4,17
United States v. Iran (1980) ICJ 3
United States v. EC Biotech (2005) DS 291 17, World Trade Organization dispute panel hearing
(also cases for Canada (DS 292 17) and Argentina (DS 293 17) versus EC Biotech)
US v. Canada (1931–l941), 3 RIAA 1905
Western Sahara, 1975 ICJ 12, 39 (1 October)

JAPAN

Kayishema et al (ICTR-95-I-T), Judgement and Sentence, 21 May 1999

Kumamoto Minimata Disease case, 696 Hanjil 5 Kumamoto District Court, 20 March 1973
Niigata Minamata case, 642 Hanji (Niigata District Court, 29 September 1971)
Tachiona v. Omugabe, 234 S. Supp. 2d. 401, No. 00 Civ. 6666 (VM), 2002 WL 317 9018 (SDNY 11
December 2002)
Toyama Itai-Itai case, 635 Hanji 17 (Toyama District Court, 30 June 1091)
Yokkaichi Asthma case, 672 Hanji 30 (Tsu District Court, Yokkaichi Branch, 24 July 1972)

NEW ZEALAND

Maori Council v. Attorney General (1987) 1 NZLR (1641)

Ninety Mile Beach (1963) NZLR 461

UNITED KINGDOM

Continental Tyre and Rubber Co Ltd v. Daimler Co Ltd (1915) KB, 893
R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs and Another (2001) QB 1067
(3 November 2000)

UNITED STATES

Aguinda v. Texaco, Inc., 1945 F. Supp. 625 (5 DNY 1996); 1 & 2 F. Supp. 2d 53 (SDNY 2001)
Alexis Holyweek Sarei et al v. Rio Tinto plc and Rio Tinto United, US District Court for the Central
District of California, 221 F. Supp. 2d 1116; 2002 US Dist. LEXIS 16235; 156 Oil and Gas Rep.
403, 11 July 2002, Entered
Ashanga v. Texaco, Inc., SDNY Dist. No. 94 Civ. 9266 (13 August 1997)
Baker v. Carr, 369 US 186, 217 2d.663, 82 S. Ct. 691 (1962)
Bancoult v. McNamara 370 Supp. 2dl.U.S. Dist., LEXIS 27882 (21 December 2004, decided)
316 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Bancoult v. McNamara, 217 FRD 280, 2003 US Dist. LEXIS 17102 (DDC, 2003, #2)
Beanal v. Freeport-McMoran, Inc. and Freeport-McMoran Copper and Gold, Inc., 969 F. Supp. 362; 1997
US Dist LEXIS 4767 (April 1997, decided)
Cherokee Nations v. Georgia, 30 US 5 Pet. 17 (1831)
Derensis v. Cooper and Lybrand Chartered Accountants, 930 F. Supp. 1003, 1007 (DNJ 1996)
Doe v. Unocal Corp., 2002 W.L. 3.D 63976 (9 Cir. 2003)
Doe/Roe v. Unocal Corp., 110 F. Supp. 2d 1294, 1306 (CD Cal. 2000)
Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872 (1990)
Federation of the Yagua People of the Lower Amazon and Lower, Napo v. Texaco, Inc., 303 F 3d 470; 2002
US App. LEXIS cl6540; 157 Oil and Gas Rep. 333, 16 August 2002, Decided
Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980)
Filartiga v. Pena-Irala, US Court of Appeals, 2d ct, 1980 630 F 2d 876
Jota v. Texaco, Inc., 157 F 3d 153 (2d Cir.1998)
Kadic v. Karadi, (1996) 74 F.3d 377, decided 4 January
Lyng v. NW Indian Cemetery Protective Association, 485 US 439 (1988)
The Presbyterian Church of Sudan, Rev. John Gaduel, Nuer Community, Development Services and others v.
Talisman Energy, Inc., 244 F. Supp. 2d 289:2003 US Dist. LEXIS 4085:155 Oil and Gas Rep. 409,
19 March 2003, decided
Santa Clara County v. South Pacific Railroads Corp., 1886
Sequinha v. Texaco, 847 F. Supp. 61 (SD Tex. 1994)
Sequinha v. Texaco, Inc., 945 F. Supp. 625 (SDNY 1996)
Sinaltral the Estate of Isidro Sequndo Gil, Plaintiffs v. Coca Cola Company et al, United States District
Court SD Florida, 256 F. Supp. 2d 1345
Trail Smelter Arbitration, US v. Canada 1931-1941 3 RIAA 1905
United States v. FMC Corporation, 572 F. 2d 902 (2 Cir. 1978)
United States v. Smith, 18 US 153, 160–161, 5 L. Ed. 57 (1920)
Wiwa v. Royal Shell Petroleum et al, 226 F. 3d 88 (2d Cir. 2000)
Worcester v. Georgia, 31 US 515 (1832)
 List of Documents

Aboriginal Lands Rights (Northern Territory) Act, 1976 B42(6) 77A (Austl.)
African [Banjul] Charter on Human and Peoples Rights, adopted 27 June 1981, Art. 24, 21 ILM
58(1982)
Agenda 21, document of United Nations Programme of the same name, revealed at the United
Nations Conference on Environment and Development (Earth Summit), Rio de Janeiro, 14
June 1992
Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Establishing
the Charter of the International Military Tribunal (IMT) (1951), 82 UNITS 279. annex
Agreement on Identity and Rights of Indigenous Peoples, UN GAOR, 49 Sess., Agenda Item 42, Annex,
UN Doc. A./49/882, S/1995/256 (1995)
Alien Torts Claims Act, 28 USC 1350 (2000)
Alien Torts Claims Act, 28 USCS 1350 (2002)
American Convention on Human Rights (1969) OAS Treaty Ser./No.36; 1144 UNTS 123
Article of Agreements of the International Bank for Reconstruction and Development, Art. IV, 10, 60 Stat.
15 1449, 2 UNTS at 158
Atlantic Charter, joint declaration issued on 14 August 1941, during World War II, by the British
prime minister, Winston Churchill, and President Franklin D. Roosevelt of the US, after five
days of conferences aboard warships in the North Atlantic
Badinter Commission Opinion No. 1, 29 November 1991 ILM 31, 1992: 1494–1497, ‘Conference on
Yugoslavia’
Biodiversity Convention 5 June 1992, 1760 UNTS 79, Can. T.S. 1993 No. 24,31 ILM 818
British Indian Ocean Territory Agreement, 1999
Canadian Bill of Rights (1960) SC, c.44
Canadian Bill of Rights, RSC 1970, App. III
Canadian Charter of Rights and Freedoms, a part of the Constitution of Canada, in force 17 April
1982
Canadian Criminal Code, RSC 1985, c C-46
CERD Report (1993): UN GAOR, 47 Sess. Supp. No. 18 Doc. A/47/18
Charter of Economic Rights and Duties of States, GA Res. 3281, UN GAOR, 29 Sess., Supp. No. 31, at
50, UN Doc. A/9631 (1974)
Charter of the International Military Tribunal (1947) IMT, Nuremberg, I and II, trials of the major
war criminals
Charter of the United Nations, Article 1 (3), 13(1) (b), 55(c), 56, 59, and 76(c)
Clean Water Act (1972) PL 92-500, US legislation
Committee on the Elimination of Racial Discrimination (CERD), general recommendatins (XXITTI)
concerning indigenous peoples; adopted by the UN Committee on the Elimination of Racial
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320 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

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 Index

Aamjiwaang First Nations 8, 234, 263 Asarco 42

Abidijan, Ivory Coast 231 ATCA (Alien Torts Claim Act)
aboriginal peoples see indigenous peoples jurisprudence 104–116, 169
aboriginal rights test 132 atmospheric nuclear tests 26
aboriginal title 126, 129 attacks against human person 29
accidents 17 Australia 26, 40, 77–80, 236
ACIA (Arctic Climate Impact Assessment) avian flu 234
197 Awas Tingni v. Nicaragua 71–73
actus reus 171–175
African Americans 135, 140, 152 Bancoult v. McNamara 109–111, 167–168,
African and Inter-American regional 172
rights systems 4 Barcelona Traction Light and Power 223
aggregate theory 90, 91 Battle, Whitly 149
aggression 29, 223, 257 Beanal, Tom 112, 113
Alabama, US 149 Beanal v. Freeport-McMoran Inc. and
Alaska, US 184 Freeport-McMoran Copper and Gold Inc.
Albania 38 112–113
Alberta, Canada 75, 187, 194–195 Bill C-45: 109–110, 230–231
Alien Torts Claim Act (ATCA) bi-national territorial disputes 153
jurisprudence 104–116, 169 biocentrism 33
American Convention on Human Rights biodiversity
4, 180 attacks on 80
American Indians see First Nations; Canada 128
Indian tribes; Native Americans conservation 206–208
Amungme 112 and indigenous peoples 35–36
Anaya, James 208 marine 81
anthropocentrism 33 protected areas 31–32
Antoine, Jim 157 Biodiversity Convention 10
appropriation 221, 222 biogenetic engineering 227
Aquinas, T. 55, 56 biological/ecological integrity 7–9, 19,
Arakis Energy Corporation 114, 166 269
Arctic 197–200, 209 see also ecological integrity
Arctic Climate Impact Assessment biological genocide 30
(ACIA) 197 biological integrity 233
Arctic Council of 1996: 10 Blackman, Adelard 266–267
Aristotle 54 bodily harm 173–174
342 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Bolivia 43 CERD (Committee on the Elimination of

Bonaventure 55 Racial Discrimination) 6, 65, 67
Boots, Francis 145 Chagos Archipelago 109, 167, 168, 172
Bougainsville 178 Charter of Economic Rights and Duties of
Bourassa, Robert 145, 146, 147 States 118
Brazil 43 Chaskalson, Arthur 157
BRDN (Buffalo River Dene Nation) chemical exposures 174–175, 189–196,
266–267 265, 269
Britain 40, 127, 167, 168, 234 chemical industries 17
see also England chemicals 8, 17, 201
brownfields 19, 139, 149 ‘Chemical Valley’, Canada 8, 174–175,
Browning-Ferris Industries 149 234, 263
Brownlie, I. 177, 224–225 Chevron 114
Buddhism 62 Chevron-Texaco 190
Buffalo River Dene Nation (BRDN) children 11, 125–126, 192, 195, 260, 265
266–267 Churchill, Winston 13
buffer zones 31, 73, 129, 207, 234 Ciaccia, John 145
Bullard, Robert 135, 136, 148–149 CID (corporate internal decision-
Burrows, John 132 making) 90, 92, 167
business enterprises see corporations; claim structures 248–252
extractive industries; MNCs; non- climate change 8, 37, 184, 204–206, 227
state actors; organizations; TNCs Cline, Christopher 225
Clinton, Bill 103–104, 140
Cambodia 96–97 coastal communities 207
Canada Colborn, Theo 9
aboriginal peoples 187–189, 262 collateralism 64, 108, 233
Buffalo River Dene Nation (BRDN) collective indigenous rights 39–41, 128,
266–267 202–204
‘Chemical Valley’ 8, 174–175, 234, 263 collective land rights 73, 129–131
collective indigenous rights 40 Colombia 42, 43
First Nations 125–157 Committee on the Elimination of Racial
health disparities 260–261 Discrimination (CERD) 6, 65, 67
MNCs 119 common good 117
multiculturalism 262 commons, global 221, 227
Nunavut 196–201, 208 communal ownership of resources 237
oral histories 79 communitarianism 151
trial choice 115 community rights 49–53
Canada Charter of Rights and Freedoms community support 88
222 complicity, genocide 168–169
Canadian Arctic 197–200 Congo, Democratic Republic of 98
Canadian Criminal Code 109–110, consent 86–89
230–231 conservation 32, 206–208
‘canaries’ 8, 9, 33, 128, 131, 134, 261 Consolidated Mining and Smelting
cancer 139, 192, 194 Company 84
capitalism, resistance to 237–238 conspiracy 168–169, 230
catastrophic harm precautionary Constitution Act (1982) 127, 132
principle 263 consultation 86, 88–89
 INDEX 343

Continental Tyre and Rubber Co. Ltd. vs. Crown’s obligations 133–135
Daimler Co. Ltd. 90 cultural genocide
Convention on Biological Diversity 5, actus reus 171–175
171, 206–208, 242 Beanal v. Freeport-McMoran Inc. and
Convention on Genocide see Genocide Freeport-McMoran Copper and Gold
Convention Inc. 112–113
Convention of The Hague for the cultural integrity 171
Protection of Cultural Goods in Draft Declaration on the Rights of
Armed Conflict 246 Indigenous Peoples 221
Convention of the International Genocide Convention 169
Labour Organization Concerning Indians 126
Indigenous and Tribal Peoples in rights 225
Independent Countries 4 see also genocide
Convention for the Protection of the cultural goods 244
World Cultural and Natural Heritage cultural integrity 74–76
242, 243–248 Amungme 113
Convention on the Rights of the Child and capitalism 237–238
(CRC) 4, 11, 265 cultural genocide 171
Corfu Channel 38 international law 236
corporate accountability, international model 10–11, 53
law 118–122, 170 culturalism 151
corporate criminality 222 cultural land 20, 223
corporate genocide 166–168 cultural self-identity 151
corporate intentionality 90–92 cultural sites, wartime 245–246
corporate internal decision-making
(CID) 90, 92, 167 Darfur, Sudan 181
corporate responsibility 92, 104–106, decision-making, corporate 89–92, 167
116–118, 233–234 Declaration of Human Rights 3, 241
corporations Declaration on the Principles of
activities 86, 219–222 International Law 257
decision-making 89–92, 167 declarations 4
economic protection 230 decolonization 15, 118
international law 119 Deer, Ada 103
obligations 228 deforestation 97, 99
personhood 91, 92, 116 Democratic Republic of Congo 98
protectionism 222 deportation 174, 184
rights 252–254 De Sousa Santos, D. 23
sued under ATCA 115 developing countries 13–14, 119, 265
see also MNCs; organizations; TNCs development 15, 89, 128, 179, 180–181,
cosmopolitanism 50, 51, 52, 63 242
CRC (Convention on the Rights of the development law 224, 225
Child) 4, 11, 265 Diego Garcia, Chagos Archipelago 109,
crimes 109, 203 168, 172
see also eco-crimes; war crimes Dinka 114
crimes against humanity 18, 99, 183–184 direct material harms 19
criminal organizations 168–169 disintegrity 33
criminal prosecution 230 Doe v. Unocal Corp. 104–106, 172
344 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Draft Declaration on the Rights of eco-violence 42, 61, 117, 148, 177, 235
Indigenous Peoples 16, 130, 171, Ecuador 106, 190, 191, 235
220–221, 248, 266 EFA (ecological footprint analysis) 129,
Draft Declaration of the Working Group 221
on Indigenous Peoples 250 Eisenhower, Dwight D. 245–246
Draft International Covenant on Emberland, M. 252–253
Environment and Development 34 emissions 37, 38
Dryden Chemicals Ltd. 136 employees 117
Dryden Paper Company Ltd. 136 Energy Resources of Australia 236
dumping of hazardous waste 231–232 Engel, Ron 257, 259
Dunbar, Mr 229 England 90
see also Britain
Earth Charter 6, 34, 257–259 entitlement 76–84
Earth System Science 35 environmental concerns 61–62
EC-Biotech 255 environmental court cases 139
ecocide 173 environmental ethics, First Nations
eco-crimes 130–131
aboriginal territories 245 environmental harms
environmental racism 241 extractive industries 106–108
erga omnes obligations 225 human rights abuses 113
extractive industries 86 international obligations 226–227
indigenous peoples 17–21 public health 179, 180
international law 36–39 Trail Smelter Arbitration 84–85
jus cogens norms 175–181 see also harms
natural law 61 environmental justice 34, 51, 136, 269
eco-footprint crimes see eco-crimes environmental law 213, 224, 225
eco-justice, supranational 50–53 environmental problems 227, 242
ecological concerns 150, 266 environmental protection 242
ecological epidemiology 261 Environmental Protection Agency 148
ecological footprint analysis (EFA) 129, environmental racism 135–157, 241
221 environmental rights issues 7–9
ecological integrity 32–35 environmental violations 112
biodiversity 207 equality 78, 223
Canada 128 erga omnes obligations 4, 37
material security 60 collective rights 202
protected areas 31–32 eco-crimes 179–180
right to 233, 236 environmental concerns 61–63
see also biological/ecological integrity indigenous rights 223–228
ecological management systems 131 nuclear tests 108
ecological rights 4, 28–30 see also obligations
ecological security 35 ethical revolution 154
ecological violence see eco-violence ethics of integrity 33–34
economic institutions 64 ethnic cleansing 114, 172–173
economics, role of 85–94 ethnocide 219
Ecopetrol 43, 44 European Charter of Human Rights 210
ecosystems, religious significance 20 European Commission on Human Rights
eco-terrorism 112 250
 INDEX 345

European Community 255 FPIC (free, prior, informed consent) 88,

European Convention on Human Rights 89
252–253 FPICon (free, prior, informed
Europeans, and indigenous peoples 127, consultation) 88, 89
187 Framework Convention on Tobacco
exiles 262 Control (FCTC) 211–212
extractive industries France 26, 122
effects of 73, 86 free, as prefix 52
environmental and health harms 99, free agency 64
106–108 Freeport-McMoran Inc. and Freeport-
financing 86 McMoran Copper and Gold Inc.
military support 113 112, 113
World Bank Group 92–94, 94 free, prior, informed consent (FPIC) 88,
see also mining; oil industry 89
extra-judicial killings 114–116 free, prior, informed consultation
(FPICon) 88, 89
FCTC (Framework Convention on free trade 15
Tobacco Control) 211–212 frozen rights 132–135
Fenelon, J. V. 237 functionalism 233–234
fiction theory 90 funding 86, 183
Filartiga v. Pena Irala 111
financing, large projects 86, 183 Gabcikovo-Nagymaros Project 85
First National People of Colour Gabriel, Samson 142
Environmental Leadership Summit Gaius 55
150 Geer, Martin 220
First Nations genetic wild resources 36
attacks on existence 125–157 genocide
‘canaries’ 128 Bancoult v. McNamara 109–111
‘Chemical Valley’ 174–175, 234, 263 Beanal v. Freeport-McMoran Inc. and
cultural integrity 75 Freeport-McMoran Copper and Gold
health disparities 260 Inc. 112
protected areas 32 biological 30
Sandra Lovelace v. Canada 49, 74 bodily harm 173–174
self-governance 200 complicity 168–169
see also Indian tribes; indigenous conspiracy 168–169
peoples; Native Americans; specific corporate 166–168
peoples crimes against humanity 183–184
fisheries 83 definition 29–30, 125, 163–164
fishing 127 and indigenous peoples 163–168
force, use of 257 intent 164–168, 220
forced relocation 109–111 jus cogens norms 111, 175–181
forcible removal of populations 174 Presbyterian Church of Sudan, Rev.
forest concession management 96–97 John Gaduel, Nuer Community,
forests 97 Development Services and Others v.
forum against multinational corporations Talisman Energy Inc. 114–116
108 usage 219
forum non conveniens 108 see also cultural genocide
346 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Genocide Convention 115, 120, 165, Freeport-McMoran Copper and Gold

169 Inc. 112
Gilbert, Paul 15, 154, 155 corporate accountability 119–122
global commons 221, 227 Doe v. Unocal Corp. 104, 105
Global Ecological Integrity Project 34 evaluation of 15
globalization 50, 52, 63, 119, 238 extractive industries 108
global warming 197–200, 227 Presbyterian Church of Sudan, Rev.
gold mines 89 John Gaduel, Nuer Community,
golf courses 134, 143–144 Development Services and Others v.
Gore, Al 209 Talisman Energy Inc. 114
Grandjean, P. 191–192 Human Rights Watch 118
Grassy Narrows Reserve, Ontario Hungary 61
136–139 hunting 130, 197, 198
Great Britain see Britain
Great Law of Peace 12, 129, 146, 150 IBI (Index of Biotic Integrity) 33
Grotius 5 ICC (International Criminal Court)
Guatemala 89 177–178, 181–182
Gulf Oil Corporation 106 ICCPR (International Covenant on Civil
and Political Rights) 40, 67, 249
Hall, Emmett 138 IJC (International Joint Commission) 84,
Halliburton 167 85
Hall, T. D. 237 ILC (International Law Commission)
Handl, Gunther 178–179 227
harms ILO (International Labour
bodily 173–174 Organization), Convention on
direct material 19 Indigenous and Tribal Peoples 5, 7,
erga omnes obligations 225 242
health 106–108, 189–190 IMF (International Monetary Fund) 86,
indirect material 19 205
mental 174 immunity 230
to indigenous peoples 232 IMPAC (International Marine Project
trans-boundary 227 Activities Centre Limited) 80
see also environmental harms independent scientific research 195, 196
hazardous activities 148, 225 Index of Biotic Integrity (IBI) 33
hazardous waste 231–232 Indian tribes 103
health, right to 209, 210–211, 266 assimilation 125–126, 237
health harms, extractive industries self-determination 103, 152, 153
106–108, 189–190 world views 143, 144, 150
heritage 243–248 see also First Nations; indigenous
Herz, Richard 169 peoples; Native Americans; specific
historical occupation 76–84 tribes
historical sovereignty 251 indigenous peoples
human rights see rights cases 39
human rights law 252 communal ownership 237
human rights violations consideration for 269
Bancoult v. McNamara 109 definition 5, 15–16, 95
Beanal v. Freeport-McMoran Inc. and deprivations 244
 INDEX 347

eco-crimes 17–21 International Labour Organization

ecological management systems 131 (ILO), Convention on Indigenous
and Europeans 127, 187 and Tribal Peoples 5, 7, 242
force used against 257 international law 36–39, 41, 51, 118–122,
harms to 232 170
health disparities 260–264 International Law Commission (ILC)
hunting 130 227
land 17, 93, 126, 128 International Marine Project Activities
land management 129–131 Centre Limited (IMPAC) 80
membership 53 International Monetary Fund (IMF) 86,
minorities 249 205
protection 86, 222, 241–248, 254 Inuit 196–200, 208–209
resistance to capitalism 237–238 investigation reports 95–99
vulnerability 233 Iroquois Confederacy 142
see also aboriginal phrases; indigenous isolationist strategy 149
rights; specific peoples Italy 8
indigenous rights Ivan Kitok v. Sweden 74–75
collective 39–41, 128, 202–204
constitutional frameworks 43 Judges Portal 157
erga omnes obligations 223–228 judicial expertise 111
international law 41 jus cogens
origin 59–61 aggression 223
protection 132, 171 appeal to 233
indirect material harms 19 decolonization 15
individualism 40 genocide 111, 175–181
individuals 39, 74, 116, 202, 253 international law 41
Indonesia 113, 167 rights 4
industrial activities 17, 73, 86 torture 111
see also extractive industries; mining; oil violations 105, 115
industry jus gentium 55
institutionalized ecological violence 235 Justinian 55
integrity 32, 33–34 just war 255
intellectual property law 11
intent, genocide 164–168, 220 Kanesatake 140–141, 143
intentionality, corporate 90–92 Kant, I. 50–52, 64
Inter-American Commission on Human killings, extra-judicial 114–116
Rights 208–209 Kingsbury, Benedict 248, 250, 252
intergenerational equity 130 Kitok, Ivan 74, 75
internal self-determination 13 knowledge, TNC activities 220
International Court of Justice 25–28 Koyukon 130
International Covenant on Civil and Kyoto Protocol 37
Political Rights (ICCPR) 40, 67, 249
International Criminal Court (ICC) Lake Lanoux Arbitration 38
177–178, 181–182 land
international environmental law 38, 113 collective rights 73, 129–131
International Joint Commission (IJC) 84, cultural 20, 223
85 forgotten bond 131
348 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

indigenous peoples 17, 93, 126, 128 see also extractive industries
management 129–131 minorities 20, 47–49, 178, 249
minorities 20, 178 Miriam people see Murray Islanders
right to 23, 24, 78–80 MNCs (multinational corporations) 116,
sui generis relationship 126–129, 249, 119, 169–170
251, 261 see also corporations
titled lands 93 Mohawks 140–147, 150, 152, 153–154
Landrigan, P. J. 191–192 Monsanto 119
Las Casas, Bartolme De 59 Montana Exploradora 89
Lauterpacht, H. 203 monuments, wartime 245–246
law, ecological integrity 34–35 Morocco 76–77
law of nations 202 MPAs (marine protected areas) 81
legality, corporate activities 221 multiculturalism 61, 262
Le Louis 65, 120, 245 multinational corporations (MNCs) 116,
Lemay, Marcel 145 119, 169–170
Lenin 12 see also corporations
liberal democracy 117 Murray Islanders 77–78
liberalism 52 Myanmar 104
loans 93
local government 86 Namibia 14
local peoples 15, 20 national identity 151, 153–157
see also indigenous peoples national parks 32
Longhouse System (government) 142, Native Americans 140, 235
144 see also First Nations; Indian tribes
Lovelace, Sandra 49 native title 77–78, 79, 80
Lubicon Cree 187–189, 190, 241, 263 Native Title Act (1993) 80
native world views 143, 144, 150
Mabo v. Queensland 77–78 natural heritage 243, 246
Maderas y Derivados de Nicaragua natural law 5–6, 54–63, 204, 254, 256
(Madensa) 71 natural resources 15
Maori 82–84, 250 nature 55, 131
marine biodiversity 81 nature’s services 32, 128, 221
marine protected areas (MPAs) 81 Navajo miners 235–236
material security 60 negligence 228–229
Mauritania 76, 77 Nelson, Curtis 145
medicinal plants 36 neo-colonialism 14, 15
Mediterranean basin 177 neoliberalism 40, 41, 131
mens rea 118, 119, 164–165, 220, 229, neurobehavioural impairments 192
230 New Zealand 26, 40, 81, 82–84, 250
mental harms 174 NGOs (non-governmental organizations)
mercury pollution 136–137, 138 205–206, 256, 258
Metcalf, C. 16 Nicaragua 43, 71–73
methyl mercury pollution 136–137, 138 non-commercial goods 244
Mexico 43 non-governmental organizations (NGOs)
Micronesia 81 205–206, 256, 258
military support 104, 113 non-state actors 67, 92, 164, 205,
mining 86, 89, 95, 113, 235–236 228–232, 252–254
 INDEX 349

norms 228, 256–257 personhood 91, 116

North Africa 76–77 Peru 43, 106
North America see United States PetroEcuador 106
North-South interaction 221 pharmaceutical companies 36, 139
nuclear power 26 The Pines, Oka 143, 144–147
nuclear tests 26, 108 plants, medicinal 36
nuclear weapons 25–28 policy conditionality 93
Nuer 114 pollution
nullum crimen sine lege 122, 182 environmental 177, 227
Nunavut, Canada 196–201, 208 mercury 136–137, 138
public health 42
obligations 36, 133–135, 226–227, 228 risks 8
see also erga omnes obligations uncontrolled activities 29
Oceania 80–82 populations, forcible removal of 174
Ogoni 19 positivism 59, 255
Ogoniland 19 possession 221
oil industry poverty reduction 86, 94, 242
development 194–195 precautionary principle 263
exploration 43, 106, 114, 188, 189–191 premeditation, genocide 166–168
extraction 95 Presbyterian Church of Sudan, Rev. John
see also extractive industries Gaduel, Nuer Community, Development
Ojibways 137, 138 Services and Others v. Talisman Energy
Oka, Quebec 140–147 Inc. 114–116, 166–167, 172
Ominayak, Chief 187, 189 Probo/Koala 231
Ontario, Canada 136–139 procedural matters, ATCA cases 108
OP 4.10: 87, 93 profit making 246
open pit mining 113 project concept reviews 94–95
Operational Directive 4.20 on Indigenous protected areas 31–32, 81, 207
Peoples 87 protection, indigenous peoples 86, 222,
organization crime 109 241–248, 254
organizations 64, 109–110, 168–169, protection instruments 41, 241–248
230–231 protectionism for corporations 222
see also corporations protesters, global human rights 176
Ouellette, Jean 143 public health 259–264
ownership 221 environmental harms 179, 180
Oxy 43, 44 MNCs 169–170
pollution 42
Pacific 80–82 WHO 264–265, 269
Palau 81 public international law 51
Papua New Guinea 80 public relations 88
paramilitary support 113 Pygmy peoples 98–99
Parent, Amand 141
patrimony 246 Queensland Coast Island Declaratory Act
Pellet, Alain 203 (1985) 77, 78
Pentassuglia, G. 164
people of colour 148 racial discrimination 67, 78, 223–224
perpetual peace 51 Racial Discrimination Act (1975) 78, 80
350 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Ragazzi, M. 26, 28, 62–63, 223, 224 see also human rights law; human rights
rape 183, 269 violations; indigenous rights
REACH (Registration, Evaluation and right to biological integrity 233
Authorization of Chemicals) 269 right to development 179, 180–181
refugees 262 right to health 209, 210–211, 266
Regina (Bancoult) v. Secretary of State for right to land 23, 24, 78–80
Foreign and Commonwealth Affairs and right to secession 24
Another 168 Rio Declaration on Environment and
Reindeer Husbandry Act (1971) 262 Development 242
religious rights 150 Rio Tinto 178–179
religious significance, ecosystems 20 risk 227
reparation 255 R. L. et al. v. Canada 49
Report of the Inter-American Rockefeller, Steven 257, 259
Commission 180 Roosevelt, F. D. 13
research 106, 170, 189–190, 195, 196, Royal Commission on Aboriginal Peoples
205, 269 260
resistance 154 Royal Dutch Shell Oil 17, 19, 75
resource development 128 Rylands v. Fletcher 229
resources 15, 36, 237
responsibility 90, 226 sacred, respect for 259
corporations 92, 104–106, 116–118, Sami 74–75, 262
233–234 Sandra Lovelace v. Canada 49, 74
and rights 41 Sanitary and Phytosanitary Measures
states 119–120, 121, 226, 227 (SPS) Agreements 255
restitution 245 Saro-Wiwa, Ken 9, 19, 56, 173
Rex v. Dunbar 229 Saskatchewan, Canada 266–267
Ridenour, Andrew 105 Schabas, William 164
rights 3–21 scientific research 106, 189–190, 195,
aboriginal land 78–80 196
all humanity 51, 224, 242, 251 Scott, Sir William 65, 66, 120–121
claim structures 249 Scovazzi, Tulio 244
collective indigenous 39–41, 128, secession, right to 24
202–204 second conquest 15, 64, 125, 170, 252
collective land 73, 129–131 segregation 152
community 49–53 self-defence 204, 223
corporations 252–254 self-determination
eco-footprint crime 18 claims 154
ecological 4, 28–30 claim structures 250–252
environmental 7–9 collective rights 202–204
frozen 132–135 importance of 196
global 176 Indian tribes 103, 152, 153
individuals 116 model 11–16, 53
land 23, 24, 73, 78–80, 129–131 Nunavut’s people 200–201
protection 63 self-governance see self-determination
religious 150 self-preservation 153
and responsibilities 41 serious bodily harm 173–174
territorial 23–24 Seveso dioxin spill, Italy 8
 INDEX 351

sex ratio 8 territorial rights 23–24

Shell Oil see Royal Dutch Shell Oil Texaco 42, 106, 190–191, 235
Shishmaref, Alaska 184 Texaco Petroleum Company (TexPet)
Siddon, Tom 145 106
Sipakapa 89 Thompson, Loran 146
sites, exceptional universal value titled lands 93
246–247 TNCs (transnational corporations) 86,
slavery 66, 120–121, 223 219–222, 228, 268
smoking 211–212 see also corporations
soft law 256, 257, 258 tobacco control 211–212
sovereignty 23–24, 251 Tocqueville, Alexis de 125
Spanish School of International Law 59 Tomuschat, C. 227
Sparrow test 127–128 tort system, environmental law 138, 139
Sparrow v. The Queen 127–129 torture 111, 112–113
spiritual role, nature 131 toxic material see hazardous waste
SPS (Sanitary and Phytosanitary trade, free 15
Measures) Agreements 255 trade organizations 64
Stallworthy, Mark 231 traditional cultures, cultural integrity
standard of care 110 10–11
states 54, 64, 119–120, 121, 226, 227 Trafigura Trading Company 231
state sovereignty 23–24 Trail Smelter Arbitration
state terrorism 155–156 classic case 37
statism 59 climate change 204–206
Statute of the International Criminal environmental harms 84–85
Court 181–182 influence of 99
Stockholm Declaration on the Human language 38
Environment 3–4, 84, 169, 241 trans-boundary harm 229
Strickland, R. 125 trans-boundary harm 227
Sub-Commission on the Prevention of transnational corporations (TNCs) 86,
Discrimination and the Protection of 219–222, 228, 268
Minorities 4, 48 see also corporations
Sudan 114, 115, 166, 167, 181 transnational legal processes 92
sui generis land-based relationship treaties 4, 41, 255
126–129, 249, 251, 261 tribes, membership 53
Sullivan, David 149 The Two Row Wampum Treaty 146
Sulpicians 141, 143, 150
Sunstein, C. 263 UK see Britain
supranational eco-justice 50–53 Ulpianus, Domitius 55
sustainability 51, 150, 232 UN see United Nations
Sweden 74–75, 262 UNDD (UN Draft Declaration on the
Rights of Indigenous Peoples) 16,
Talisman 114, 166, 167, 172 130, 171, 220–221, 248, 266
Tehran Conference on Human Rights United Kingdom see Britain
241 United Nations (UN)
terra nullius 24, 25, 76, 79 Charter 13
territorial disputes, bi-national 153 Commission of Experts for the former
territorial integrity 14, 25–35, 39, 85 Yugoslavia 120
352 ENVIRONMENTAL JUSTICE & THE RIGHTS OF INDIGENOUS PEOPLES

Convention to Combat Desertification war 155, 156, 255

in those Countries Experiencing war crimes 109–111, 114–116
Serious Drought and/or waste, hazardous 231–232
Desertification Especially in Africa Watt-Cloutier, Sheila 208, 209
10 Weeramantry, Christian 85, 100, 259
Draft Declaration on the Rights of Western Sahara advisory opinion 76–77
Indigenous Peoples (UNDD) 16, WHA (World Health Assembly)
130, 171, 220–221, 248, 266 264–265
Framework Convention on Climate White Dog Reserve, Ontario 136–139
Change 37 WHO (World Health Organization)
General Assembly 3 health mandate 264–265, 267–268,
General Assembly Resolution 242 269, 270
Human Rights Committee 67 nuclear weapons 27
purpose 13 research 170, 205, 269
World Conference on Human Rights Wik Peoples v. Queensland 78–79
241 wilderness 150
United States (US) wild nature 32
emissions 38 wilful blindness 165
environmental court cases 139 Wilson, Woodrow 12
environmental racism 135, 148 Wiwa v. Royal Shell Petroleum 226
and indigenous peoples 103–122 workplace/health concerns 117
Kyoto Protocol 37 World Bank 86–87
Native Americans 140, 235 inspection panels 94–99
uranium mining 235–326 internal issues 88–89
United States v. Iran 226 projects supporting extractive industries
Unocal Corporation 104–106 92–94
uranium mining 235–236 World Bank Group
US see United States extractive sector 94
uti possidetis 24, 25, 72 funding 183
U’wa 41–44 power of 86, 205
World Health Assembly (WHA)
Van der Peet test 132 264–265
Vanuatu 81 World Health Organization see WHO
Vattel, Emmerich de 5, 57–58, 222 World Trade Organization (WTO) 255
Venezuela 43 world views, Indian tribes 143, 144, 150
Vienna Convention on the Law of WTO (World Trade Organization) 255
Treaties 176, 242
Vitoria, Francisco de 59, 60 Yugoslavia, disintegration 24