Secretary General Asia Indigenous Peoples Pact (AIPP) Foundation
Numerous conflicts exist with respect to indigenous peoples and protected areas (PAs) all over the world mainly due to lack of legal recognition of indigenous peoples’ traditional land and way of life. Although many indigenous communities have been living in the area long before some PAs were established, or even before the birth of some nations, their consent on such establishment was not obtained. Countries have traditionally followed the categories I and II of PAs of the World Conservation Union (IUCN), a body comprising mainly of governments and big conservation organizations, which are strict PAs. As a result, many indigenous peoples were removed from their traditional lands causing land and cultural loss, impoverishment and suffering. In the past five years, indigenous peoples started to get more organized as a collective and with bigger numbers to respond at the regional and international level to ongoing violation of their rights with respect to the management of existing PAs and to advocate for policies that recognize indigenous rights of indigenous peoples in the establishment of new PAs.
This paper looks at how the Indigenous Peoples Committee on Conservation (IPCC), a group specializing on PAs under the International Indigenous Forum on Biodiversity (IIFB). It examines the experiences, achievements and weaknesses of the IPCC in IUCN and CBD related fora – in particular the World Parks Congress, and CBD 7th Conference of Parties (COP7) where the Programme of Work (PoW) on PAs was negotiated and adopted, the first Working Group on PAs and COP8. Section 4 of this paper then looked at outstanding issues on PAs – most of which were identified by the IPCC during these meetings. Finally Section 5 provides some recommendations that indigenous representatives need to examine in the forthcoming meetings – namely regional workshops, 2nd WG on PAs and COP9 in 2008.
2.1 Indigenous Peoples and Protected Areas
Protected Areas (PAs) currently cover some 12% of the land surface of the planet and 2% of the oceans (about 2.5 million km2). A majority of these PAs overlap lands owned or claimed by indigenous peoples and most of these have been established without indigenous peoples’ consent. Most PAs have been established according to a now outmoded way of thinking about ‘nature’ that seeks to ensure conservation by excluding resident peoples and setting areas aside only for scientific and recreational purposes. Yet it is recognised that indigenous peoples retain important knowledge of how to look after and live with their lands, territories and natural resources. Their ways of life, cosmovisions and institutions have often been finely tuned to living off the land. International law now recognises indigenous peoples’ rights and intergovernmental declarations have affirmed the important role that indigenous peoples must play in sustainable development. Major conservation agencies such as the World Conservation Union (IUCN) have accepted that indigenous peoples’ rights should be recognised in PAs. Unfortunately, despite some 30 years having passed since a changed approach was first recommended by the IUCN, PAs continue to marginalise and exclude indigenous peoples causing cultural loss, impoverishment and suffering.
2.2 Indigenous Peoples Participation
Indigenous peoples were first mobilized in significant number at the 5th World Parks Congress in Durban in the name of the ‘Indigenous Peoples Ad Hoc Working Group for the World Parks Congress’. In November 2004, it decided to function as a specific group dealing with issues of PAs under the International Indigenous Forum on Biodiversity (IIFB) and called itself the ‘Indigenous Peoples Committee on Conservation’ (IPCC). It was an advantage to be under the IIFB as it had a CBD advisory status.
Indigenous peoples made efforts to mobilize funds to support participation of representatives to important fora and also to contribute information to the CBD and other relevant activities. This was made possible through funding by donors such as SwedBio, CBD Voluntary Fund and NCIV. Capacity enhancement in negotiation is still very much needed by indigenous representatives, as PA issues are not only wide-ranging and complex, but also made difficult by command of mainstream languages used in international meeting.
3 Relevant Meetings
As more indigenous peoples and support organizations became aware of the negative impact of PAs on the lives of indigenous peoples, lobby work to include it in some of the major international fora gained acceptance. These included the 5th World Parks Congress (WPC5) and the Convention on Biological Diversity (CBD). While the WPC was already an established fora on PAs, the WPC5 was important as it was the first time that the issue of indigenous peoples and PAs was given prominence. In the CBD, PAs is one of the cross cutting issues but it was only in 2003/4 that it began to get serious attention from governments, NGOs and indigenous peoples in the process of drafting the Programme of Work on PAs and the call for the establishment of a working group on PAs.
3.1 Fifth World Parks Congress
Durban Accord and Durban Action Plan
The Vth World Parks Congress (WPC) organized in Durban, South Africa, from the 8th-17th September 2003 was attended by 110 indigenous participants. The outcomes were the Durban Accord and Action Plan. The Durban Accord announced that the WPC has accepted a ‘new paradigm’ for PAs ‘integrating them equitably with the interests of all affected people.’ The Accord celebrates the conservation successes of indigenous peoples. It expresses concern at the lack of recognition, protection and respect given to these efforts. It notes that the costs of PAs are often borne by local communities. It urges commitment to involve indigenous peoples in establishing and managing PAs and participate in decision-making on a fair and equitable basis in full respect of their human and social rights.
Noting that the costs of the past success in establishing a global protected area system have been inequitably borne by local communities, the Durban Accord and Action Plan affirmed that the rights of indigenous peoples are to be recognised and guaranteed in relation to natural resources and biodiversity conservation. The Action Plan notes that the current protected area system while extensive needs to be considerably expanded to ensure the protection of endangered species. Development of the system must ensure that the protected area system ‘takes full account of the rights, interests and aspirations of indigenous peoples, as well as of their desire to have their lands, territories and resources secured and protected for their own social and cultural survival.’ Noting that in developing countries PAs exist ‘side by side with indigenous peoples’ and there is a need for PAs to contribute to sustainable development, the Accord calls on all countries to ‘strictly eliminate resettlement of indigenous peoples and local communities and the involuntary sedentarisation of mobile indigenous peoples without prior, informed consent.’
The Accord also encourage protected area authorities to ‘promote the conditions and ensure the means for the effective engagement of Indigenous Peoples, local communities and other local stakeholders in conservation. The focus of attention should be on building the capacity of communities to engage effectively.’ A four page section of the Action Plan relating to the recognition and guaranteeing of indigenous peoples’ rights sets out three major targets:
o All existing and future PAs shall be managed and established in full compliance with the rights of indigenous peoples, mobile peoples and local communities.
o PAs shall have representatives chosen by indigenous peoples and local communities in their management proportionate to their rights and interests
o Participatory mechanisms for the restitution of indigenous peoples’ traditional lands and territories that were incorporated in PAs without their free and informed consent established and implemented by 2010.
A large numbers of measures were proposed to achieve these targets, the most notable being:
o the acceptance of the indigenous peoples’ proposal for the establishment of a Truth and Reconciliation Commission on Indigenous Peoples and PAs to investigate and redress past mistakes,
o that the GEF and World Bank ensure that their revised policy on indigenous peoples is fully consistent with indigenous peoples’ rights,
o that governments approve the UN Draft Declaration on the Rights of Indigenous Peoples and ratify ILO Convention 169, recognise the rights of indigenous peoples to their lands, territories and natural resources, review their conservation laws and policies to ensure their effective involvement and participation,
o that protected area authorities adopt measures, policies and practices which provide for the recognition of and respect for the rights of indigenous peoples and adopt mechanisms to involve them fully in the designation and management of PAs and promote community conserved areas with their free, prior and informed consent.
The Accord also calls on the IUCN to ‘provide advice on reforming national laws, policies and conservation programmes to respect indigenous peoples’ and local communities’ rights’, ‘strengthen training of local authorities’ on the rights of indigenous peoples, and conduct an implementation review of prior IUCN policies on Indigenous Peoples. Among the ‘Recommendations’ approved by the Congress are on ‘Indigenous Peoples and PAs’; “Mobile Indigenous Peoples and Conservation”; “Mining and PAs”; “Community Conserved Areas”; “IUCN Protected Area Management Categories” which calls on the IUCN to provide guidance on the inclusion within the system of areas managed by local and indigenous communities; and “Cultural and Spiritual Values of PAs”.
3.2 COP7 Decisions on PAs
Among the decisions of the 7th Conference of Parties of the Convention on Biological Diversity was Decision VII/28 on PAs. Paragraph 22 quotes “…the establishment, management and monitoring of PAs should take place with the full and effective participation of, and full respect for the rights of, indigenous and local communities consistent with national law and applicable international obligations”
Other COP7 decisions are in para 18 – the adoption the Programme of Work (PoW) on PA and
Para 25 – the establishment of the Working Group on PAs. The PoW has four elements:
1. Direct action for planning, selecting, establishing, strengthening, and managing protected area systems and sites. This element has 5 Goals.
2. Governance, participation, equity and benefit sharing, with 2 Goals
3. Enabling activities, with 5 Goals
4. Standards, assessment, and monitoring, with 4 Goals
PoW on PAs: Important Texts of the PoW for Indigenous Peoples2
1. Rights (Decision 22, Goal 2.2, Activity 2.2.2)
2. Participation in national PA reviews (G1.1, A4)
3. Recognition of Community Conserved Areas (G1.1, A4 & G2.1, A2)
4. PA for benefits of Indigenous and Local Communities (ILC) and respecting Traditional Knowledge in PA Management (G1.1, A7 & G2.1,A2 & 3)
5. Participation in PA planning, establishment , governance and management (G2.2, A2)
6. Participation in decision-making and capacity development (G2.2, A4)
7. Prior Informed Consent (G2.2, A5)
8. Participation in site-based Planning (G1.4, A1)
9. Customary Resource Use according to Art 10c of the CBD (G1.5, A6)
10. Mitigation of negative impacts of PAs on ILC (G2.1, A1)
11. Participation in planning and governance of PAs (G2.1, A3)
12. Incentives that supports participation (G3.1, A6)
13. Development and use of Indigenous Technologies (G3.3, A3)
3.3 First Working Group on PAs3
The first meeting of the WG on PAs held in Montecatini-Italy from June 13 to 17, 2005 was attended by 30 members of the IIFB-IPCC. The background documents prepared by the CBD secretariat (SCBD) had failed to capture key issues and did not take account of existing COP7 commitments already made by governments with regard to indigenous and local communities. It was also agreed that the peer review process for amending draft documents prior to the next WGPA meeting and other meetings attended by the IIFB must be improved. It was agreed that the whole SCBD must work on mainstreaming PA. Two sub-working groups (SWG) met to deal with 4 main agendas – financial resources and the review of implementation of the programme of work (SWGII), the IIFB was relegated to comment last after all governments had spoken, thus some critical cases text was closed by the chairpersons before the IIFB could intervene. Several strong objections by the IIFB in both working groups finally allowed better interventions in SWGI, but this was never achieved in SWGII. Despite these serious obstacles, effective lobbying with text passed to the secretariat and governments enabled some IIFB text to be included in the final drafts.
SWI covered Marine PAs beyond national jurisdiction and development of toolkits for the identification, designation, management, monitoring and evaluation of national and regional systems of protected areas. IIFB was able to include texts in the final documents – Marine PAs, the recognizing indigenous participation, and on Toolkits, respecting the rights of indigenous and local communities; cultural and spiritual values; social participation and co-management of protected areas; and various other aspects. However, there were clear gaps in the reference materials on Toolkits.
All the recommendations contained in the documents in SWGII were at risk of being left in brackets for complete review by COP8. This threw the negotiations into crisis as the EU and other governments were resistant to a weakening of the working group’s mandate and language. This delayed the negotiations and the Chairperson closed much of the substantive text and blocked any further comments on the draft documents, other than text in brackets. As a result,
several inconsistencies unacceptable to the IIFB were not rectified or disregarded. Little time was given to discussing the implementation review process. Most of the limited time dedicated to this agenda item was occupied by disagreements between governments on the need for an evaluation matrix. To the end, this was accepted with language that allows for inputs by indigenous peoples. However, more specific points could not be addressed by the IIFB from the floor. Although IIFB written texts did influence the draft recommendations and managed to secure some participatory language to open space for indigenous inputs to the review process, text proposals for improving the draft implementation evaluation matrix were disregarded.
Many governments were unhappy about the chairing procedure, but were forced into closed contact groups to resolve the crisis on the working group mandate under CBD rules of procedure.
The IIFB was not invited to participate in the contact groups and did not press for this as it was considered that it was technical issue confined to governments. This assumption proved to be incorrect as the compromise reached late on the last day involved weakening hard-won language on indigenous peoples’ rights and participation in the document on financial resources. Agreed IIFB text on the need to ensure all finance related activities guaranteed to participation of, and full respect for the rights of, indigenous and local communities was changed with empty language advising the COP simply to take note of this requirement. Unfortunately, the speedy adoption of the reports at the close of the meeting meant the IIFB was not present when the last minute changes to the text were read out. Even if the IIFB had been present, it is not clear if they could have rejected the text change. Nonetheless, the closing statement of the IIFB expressed bitter disappointment that unbracketed text on indigenous peoples’ participation and rights had been weakened at the last minute. A protest was also made about this by the IIFB directly to the Secretariat, but to no avail.
The IIFB’s formal participation on this agenda item at COP8 began with the an opening statement that referenced key issues decided on in the first meeting of the WG on PAs but which were absent from the consolidated document of CBD Secretariat recommendations. Among these were concerns surrounding the need to develop instruments covering the social aspects of the PoW, which were the direct result of hard work and pressure mounted by the IIFB during COP7. These social aspects are the cultural and spiritual reference to rights, values, government systems, impact evaluations, etc. Discussion on PAs at COP-8 covered: revision of implementation; PAs on the high seas; and options to mobilize financial resources and tools. Beginning on March 23rd, negotiations took place throughout the entire second week. Contact groups for the review of implementation and financial resources were created, in addition to the Friends of the Chairs on PAs on the high seas. COP8 was preceded by a meeting of a technical experts group. A press conference was also organised, where Mr. Sinifasi Makelo, a member of the IIFB from the Democratic Republic of Congo highlighted the displacement of thousands of people, and an increase in serious human rights violations – including murder in the establishment the PAs.
3.5 Asia Regional Meetings on PAs
It was deemed necessary by COP to hold regional capacity-building meetings in 2007 in preparation for the 2nd WG on Protected Areas from 11 – 15 February 2008 in FAO, Rome, Italy. Two regional meetings were held in South Asia (2 – 4 April) and in Southeast Asia (28 April). Only 5 indigenous and local communities were allowed at the South Asia meeting, which only involved presentation from governments and large conservation NGOs. The Southeast Asia meeting that was organized with ASEAN, was preceeded by the 4th Regional Conference on PAs in Southeast Asia (23 – 27 April) which provided an opportunity for indigenous peoples to provide input the official meeting. Interventions were made during plenary and workshop sessions, and one session was focused on IPs and PAs.5 There were also parallel capacity-building session throughout the week, where two indigenous representatives were allowed to participate where governance assessment and Categories of PAs in SEA, including Community Conserved Areas were dealt with extensively.
Similar meetings are also expected to be held in Latin America and Africa this year, and indigenous peoples will have the opportunity to participate, though it is not clear whether these meetings are likely to be open or not.
4. Outstanding Issues
4.1 Recognition of Rights
Although the CBD PoW on PAs and the IUCN documents recognizes the rights of indigenous peoples, in reality this is still a contentious issue in every country. It should be noted that at COP7, Parties did not accept land tenure and territorial rights into the text (of the Decision 22) but acknowledged that the term ‘…in full respect of the rights of indigenous and local communities encompasses land and territorial rights’. Several studies have shown that in many countries, the well-conserved areas coincide with indigenous territories and often the last few remaining biodiversity-rich areas. Sadly the process of recognizing these community conserved areas are much slower than the efforts by States to declare these areas as PAs with pressure by the IUCN and the World Bank or conservation NGOs. This situation is made worst in areas where the authorities refuse to recognize the traditional resource rights of indigenous peoples, and thus process of establishing PAs are non-negotiable and conflictive. Thus far there are no reports on whether the provision to ensure Prior Informed Consent of indigenous peoples in establishing new PAs (after 2004) is being adhered to. The fact that most PAs are under the IUCN Category I & II which are strict PAs, also makes demand for excision and access restricted difficult. Another option that being put forward is to have mosaic Governance types in PAs to cover community conserved areas and collaborative management.
Most national laws on PAs have no provisions to allow participation of indigenous and local communities in PA management, establishment and governance, nor decision-making. The COP decisions and PoW in which rights of indigenous peoples are tagged with “consistent with
national law and applicable international obligations” are limiting, especially in countries where laws and policies are very negative and some of the countries have not ratified important Conventions. However, it has been made clear by indigenous peoples that Governments are obliged to improve national PA laws to respect rights of indigenous peoples. Although the CBD PoW on PAs provides broad participation of indigenous peoples such as participation in PA planning, establishment, governance and management (G2.2, A2, G2.1, A3); in decision-making and capacity development (G2.2, A4); national PA reviews (G1.1, A4); and in site-based Planning (G1.4, A1) as well as providing incentives that supports participation (G3.1, A6), there is still much to be done.
4.3 Social Costs of Conservation
In many countries, as in the case of the DRC, eviction of indigenous peoples in the establishment of PAs is still the norm. There are ongoing studies on the social costs of conservation and efforts to make government, major conservation bodies and private companies responsible and just beginning. The provision under the CBD PoW, for PAs to benefit of indigenous communities, to respect traditional knowledge and customary resource use as well as development and use of indigenous technologies in PA Management are even distant realities. To date there is no current report on whether states have mitigated past negative impacts of PAs on ILC such as resettlement except some court decision (eg San/Bushmen people of the Central Kalahari Game Reserve.)
4.4 Financing PAs
Governments and conservationist are admitting that maintaining PAs is expensive. However, it is becoming evident that financing options are moving towards controversial sources such as allowing mining and tourism activities in PAs. At the 5th WPC and in WGPA1, these controversies were vehemently deplored by indigenous peoples but faced an uphill battle as even members of the SCBD did not seemed to be neutral.
4.5 Prioritisation of the PoW on PA
The CBD PoW on PAs is broad and thus difficult to ensure that the implementation are cross-cutting . The time frame that it has set itself to achieve these goals and targets is also very limited and it is. The IIFB fears that if Parties will pick and choose activities to implement, more thorny issues involving indigenous peoples will be left out.
4.6 Emerging threat – national and transboundary system of PAs
The discussions and alignment of Parties with regards to the complex issue of national and transboundary system of PAs is currently beyond the comprehension of indigenous peoples. It may have the impact of dividing allies and derailing negotiations on real issues.
5.1 Policy Advocacy
There needs to be sustained and strategic policy advocacy on indigenous peoples and PAs at the CBD, IUCN and regional levels. For the CBD, the upcoming processes are the regional meetings (Latin America and Africa) on PAs, WG on the Implementation of the Convention, WGPA2 and COP9. In these processes, the IIFB-IPCC needs to sustain the call for the priorization and national implementation of the CBD PoW on PAs and to plan for ongoing monitoring by analyzing reports of Parties including national reports to the CBD and NBSAPs with respect to implementation of PoW. Commissioning of case experiences showcasing some positive and negative experiences of indigenous peoples living in and around PAs all over the world to be presented at side events as well as submission of information to CBD Secretariat will help draw attention. Indigenous organizations also need to continue submitting information to the Secretariat of the CBD such as the PA case studies done previously in Malaysia, Cambodia, Bangladesh, Hawaii, Cameroon, Chile, Palau, Kenya and more recently for the purpose of reviewing the implementation of the PoW (Malaysia, Democratic Republic of Congo, Argentina and Samoa).6 It is important for the IIFB to also highlight some indicators developed the IIFB Working Group on Indicators at the Working Group on the Implementation of the Convention in July 2007 in Paris, as part of an effective way to reach the CBD’s 2010 Target.
For the IUCN, indigenous peoples can focus on pursuing the recognition of CCAs and collaborative management in PAs with the Commission on Environmental, Economic, and Social Policy, and in particular the Theme on Governance, Equity and Rights (TGER). IUCN is also in the process of reviewing its PA categories and therefore input and follow-up in this fields is necessary. The IUCN’s work on Marine PAs is also important to monitor so as to ensure indigenous perspectives are incorporated.
For National Advocacy, indigenous peoples organizations in different countries may need to urge governments to change PA laws and policies on protected areas to ensure that indigenous peoples rights are recognized and effective participation is secured as outlined in the CBD PoW on PAs. Ongoing information-sharing through the translation and dissemination of the implementation of the PoW, Durban Accord and Action Plan would help keep those involved updated. The sharing of experiences through initiatives such as the Southeast Asia Collaborative Management in PA is also one way in which advocacy for collaborative management can be realized. In Southeast Asia where the Association of Southeast Asian (ASEAN) countries have established the ASEAN Biodiversity Centre (ACB), it is important to continue to press for better recognition of indigenous peoples in PA management.
5.2 Promoting Collaborative Management in PAs
Another option that could allow indigenous peoples to continue residing in or have access to resources existing PAs are through collaborative management of protected areas. In Southeast Asia, a effort by the Asia Indigenous Peoples Pact (AIPP), Forest Peoples Programme (FPP), TGER and International Work Group for Indigenous Affairs (IWGIA). The project involves PA authorities, indigenous peoples organizations and NGOs in seven sites in Thailand, Laos, Cambodia, Vietnam, Malaysia, Indonesia and the Philippines. Important achievements from
such a project are the inroads made in amending PA legislation to allow indigenous peoples in decision-making, fostering better understanding of indigenous peoples’ concept of PAs and conservation, and participatory action research on collaboration including community use zones.
5.3 Promoting Indigenous Heritage Areas (IHAs)/CCAs
Ongoing advocacies promote Indigenous Hertage Areas (IHAs) and CCAs within or outside PAs, in many cases overlapping with collaborative management, are beginning to bear fruit. Several researches includes mapping of such areas Community Use Zones (for eg. CUZ within the Lorelindu National Park in Sulawesi, Indonesia ) and IHAs (for eg. Potato Park of the Quecha people in Peru). Taking on the push of many countries to comply with the World Bank’s and IUCN call to establish 20 percent of a country’s area into PAs, governments can be encouraged to map IHAs/CCAs are mapped and count into the total PA area. This may also lead to recognition of and support for CCA/IHA.
5.4 Capacity Enhancement and Task Division
Obvious needs of indigenous representatives and IIFB is still the art of lobbying and negotiating with governments at all levels. Only a handful consistently follow-up on PA issue, and possess skills necessary in lobbying and intervention, mainly because of language barrier. There already exist a contact of representatives under the IPCC. FPP and AIPP have been providing support prior and during CBD meetings but more indigenous organizations need to put some specialization to work with groups in-between and during preparatory sessions. In order not to overload certain groups, some indigenous organizations can take on the logistical work, while others can focus on the content preparation. One of the upcoming Preparatory Meetings, ideally the WGPA2, can be used to discuss overall strategy that needs to be developed.
5.5 Prioritization and Linking with other Goals/Issues of the CBD
The CBD PoW on PAs as it stand is too broad and ambitious, thus the need to prioritise. It would do well to adopt some form of monitoring, for example make it similar to WG8(j) where all the elements are examined during each WG meeting but with emphasis on particular element or goals. Another effort could be by linking it with the work on indicators for the 2010 Target and Goals of the CBD. The result of the work of the IIFB WG on Indicators which identified five indicators relevant to PAs can submit these formally during WGPA2 when it reviews the implementation of the PoW. Yet another way is by linking with other goals and issues of the convention such as sustainable use and customary use.
5.6 Restitution, Excision and Recognition
Although restitution or excision of indigenous areas taken for PAs may be a distant reality in many countries, this should nevertheless be pursued at all levels, depending on the seriousness of violations. In some countries, excising indigenous areas from existing PAs may also be possible to undertake. Communities have also accepted that indigenous peoples’ areas that lies within protected areas or world heritage sites may remain so, provided due acknowledgement that this is an indigenous area and use the traditional name of the area is given.