Gonzaga Journal of International Law
|Volume 12 – Issue 2 (2008 – 2009)|
|Written by Jason Gray|
|Human activities have increasingly impacted the health of the planet’s many ecosystems. Habitat destruction, global warming, and other human-induced environmental degradation have spurred an international effort to combat this phenomenon. Beginning in the 1970s, the international community began addressing environmental concerns through the adoption of international treaties, agreements, and declarations designed to curb these problems. Following the Rio Declaration of 1992, a large majority of States undertook to develop strategies to reverse the trend and protect the global environment. In an effort to preserve the remaining vestiges of the natural world, States have designated portions of their national territories as legally protected areas. Many of these protected areas have been set aside with the goal of conserving biological diversity, or biodiversity. A familiar type of protected area is the national park.
The protected status of these various areas has had a significant impact on indigenous and local communities living in and around reserves, national parks, and other protected areas. As management regimes developed in relation to biodiversity conservation, governments and conservationists at first ignored important rights of the people most dependent on the areas under protection. Now, they have begun to better understand the intrinsic link between communities living near areas which are either designated as protected areas or under consideration for such designation. In fact, it has become increasingly clear that effective biodiversity conservation and protected area management cannot occur without the full participation of the communities who have traditionally depended on those areas for their culture, livelihoods, and survival, notably indigenous and tribal communities. In essence, with the recognition of substantial human rights over the past century, international agreements recognizing substantive human rights have accompanied the growing body of international environmental laws.
In late 2007, a majority of States adopted the Declaration on the Rights of Indigenous Peoples. The Declaration elaborates many recognized rights of indigenous peoples, including the right to consultation regarding their land. It recognizes the importance of land and biodiversity to indigenous populations, as do a number of other international human rights and environmental agreements. In order to achieve effective biodiversity conservation and respect the internationally recognized legal rights of indigenous and local peoples, governments and management agencies must observe indigenous and local communities’ right to consultation when establishing and managing protected areas.
This paper will analyze the status and effect of the obligation to consult indigenous peoples on matters that directly affect their rights to their lands. Although this analysis applies to all categories of protected areas, it will specifically focus on national parks. Part II explores the significance of land and biodiversity to local tradition, culture, and lifestyle in two countries: Gabon and Panama. It sets forth the general facts concerning two groups of people in each country who live near national parks. Part III examines the meaning of the word indigenous in international law and applies the definition to the people discussed in Part II. Emphasizing the rights of indigenous communities with regards to the environment, Part IV argues that the right to consultation concerning any action which may affect traditional use of land falls within customary international law. Part V studies the practical application of the obligation to consult in Gabon and Panama. The paper concludes by reconciling potential conflict between human rights and environmental protection through a consultative process.