Original HRC document

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Document Type: Final Report

Date: 2017 Nov

Session: 37th Regular Session (2018 Feb)

Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

GE.17-19275(E)



Human Rights Council Thirty-sixth session

11-29 September 2017

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Report of the Special Rapporteur on the rights of indigenous peoples*

Note by the Secretariat

In the present report the Special Rapporteur on the rights of indigenous peoples

provides a thematic study on the impacts of climate change and climate finance on

indigenous peoples’ rights.

* The present report was submitted after the deadline in order to include the most recently available information.

United Nations A/HRC/36/46

Report of the Special Rapporteur on the rights of indigenous peoples

Contents

Page

I. Introduction ................................................................................................................................... 3

II. Activities of the Special Rapporteur ............................................................................................. 3

III. Indigenous peoples and climate change ........................................................................................ 3

A. Impact of climate change on indigenous peoples ................................................................. 3

B. Indigenous peoples’ contributions to adaptation and mitigation strategies .......................... 5

IV. Human rights bodies, indigenous peoples and climate change ..................................................... 6

V. Human rights and other international standards, including the United Nations Framework

Convention on Climate Change and the Paris Agreement ............................................................ 7

A. Self-determination and the right to development .................................................................. 8

B. Land rights, the right to participation and free, prior and informed consent ........................ 9

C. Rights to health, water and food and an adequate standard of living .................................... 10

D. Culture and traditional knowledge ........................................................................................ 10

E. International cooperation ...................................................................................................... 11

F. Right to redress and reparation ............................................................................................. 12

G. Sustainable Development Goals ........................................................................................... 13

VI. State commitments, national reports and intended nationally determined contributions .............. 14

VII. Climate finance and safeguards ..................................................................................................... 15

A Global Environment Facility ................................................................................................ 16

B. Clean Development Mechanism ........................................................................................... 16

C. United Nations Programme on Reducing Emissions from Deforestation and

Forest Degradation (REDD-plus) ......................................................................................... 17

D. Adaptation Fund ................................................................................................................... 17

E. Green Climate Fund .............................................................................................................. 18

VIII. Examples of mitigation projects of concern .................................................................................. 18

A. Barro Blanco hydroelectric project in Panama ..................................................................... 19

B. Water Tower Protection and Climate Change Mitigation and

Adaptation Programme in Kenya.......................................................................................... 19

C. Agua Zarca hydroelectric project in Honduras ..................................................................... 19

D. Other related situations ......................................................................................................... 20

IX. Conclusions and recommendations ............................................................................................... 20

A. Conclusions .......................................................................................................................... 20

B. Recommendations ................................................................................................................. 21

I. Introduction

1. The present report is submitted to the Human Rights Council by the Special

Rapporteur on the rights of indigenous peoples pursuant to her mandate under Council

resolution 33/12. In the report, the Special Rapporteur provides a brief summary of her

activities since her previous report to the Council (A/HRC/33/42) as well as a thematic

study on the impacts of climate change and climate finance on indigenous peoples’ rights.

II. Activities of the Special Rapporteur

2. As part of the mandate from the Human Rights Council, the Special Rapporteur

undertakes four interrelated areas of work: country visits, thematic studies, promotion of

good practices and communications to Governments on alleged cases of human rights

violations.

3. Since she presented her last report to the Council, the Special Rapporteur has carried

out two official country visits: to the United States of America in February 2017

(A/HRC/36/46/Add.1) and to Australia in March/April 2017 (A/HRC/36/46/Add.2).

4. With a view to improving the effectiveness of and coordination between the existing

bodies within the United Nations system with specific mandates on the rights of indigenous

peoples, the Special Rapporteur participated in the annual meetings of the Permanent

Forum on Indigenous Issues and the Expert Mechanism on the Rights of Indigenous

Peoples.

5. In relation to climate finance, the Special Rapporteur has participated in a number of

assessments and consultations over the past two years, such as the global training of

indigenous peoples on the Green Climate Fund and climate finance, held in Bangkok in

September 2015; regional trainings on the same topic held in Hanoi, Lima and Nairobi in

April 2016; and the dialogue on the engagement of the Green Climate Fund as a possible

funding window for indigenous peoples, held in Marrakech, Morocco, in November 2016.

III. Indigenous peoples and climate change

A. Impact of climate change on indigenous peoples

6. Indigenous peoples are among those who have contributed least to the problem of

climate change, yet they are the ones suffering from its worst impacts. They are

disproportionately vulnerable to climate change because many of them depend on

ecosystems that are particularly prone to the effects of climate change and extreme weather

events such as floods, droughts, heatwaves, wildfires and cyclones. Some of the most

affected regions are small islands, high altitudes, humid tropics, coastal regions, deserts and

polar areas. Global warming increases the risk of disease, changes animal migration routes,

reduces biodiversity, causes saltwater inundation of fresh water, destroys crops and results

in food insecurity.1

7. Indigenous peoples are heavily dependent on lands and natural resources for their

basic needs and livelihoods, such as food, medicine, shelter and fuel, and they are among

the poorest and most marginalized people in the world. While indigenous peoples account

for 5 per cent of the world’s population, they comprise 15 per cent of those living in

poverty. Some 33 per cent of people living in extreme rural poverty globally come from

indigenous communities. The World Bank estimates that more than 100 million people

1 United Nations Environment Programme (UNEP), Climate Change and Human Rights (Nairobi, 2015), pp. 2-8.

across the world risk being forced into extreme poverty by 2030 due to climate change.2

This has significant implications for indigenous peoples, who are already facing severe

socioeconomic disadvantages. These figures are particularly alarming given the wealth of

natural resources that are located within indigenous territories and the valuable

contributions indigenous peoples can provide in alleviating climate change. Traditional

indigenous territories encompass about 22 per cent of the world’s land surface and overlap

with areas that hold 80 per cent of the planet’s biodiversity. 3 Their role is vital for

sustainable environmental management of natural resources and biodiversity conservation,

both of which are essential elements for combating climate change.

8. The correlation between secure indigenous land tenure and positive conservation

outcomes is well known (A/71/229), as are the related implications of reduced deforestation

resulting in lower global carbon dioxide emissions. For example, in the Brazilian Amazon,

in areas where the State has recognized the forest rights of indigenous peoples, the

deforestation rate was 11 times lower than in forests where their rights were not recognized.

A recent study of 80 forest areas in 10 countries in South Asia, East Africa and Latin

America showed that community-owned and -managed forests delivered both superior

community benefits and greater carbon storage, and concluded that strengthening

indigenous peoples’ rights to their forests is an effective way for Governments to meet

climate goals.4

9. The impact of climate change has been a long-standing concern for the mandate of

the Special Rapporteur on the rights of indigenous peoples. As the previous mandate holder

stated back in 2007: “Extractive activities, cash crops and unsustainable consumer patterns

have generated climate change, widespread pollution and environmental degradation. These

phenomena have had a particularly serious impact on indigenous people, whose way of life

is closely linked to their traditional relationship with their lands and natural resources, and

has become a new form of forced eviction of indigenous peoples from their ancestral

territories, while increasing the levels of poverty and disease” (see A/HRC/4/32, para. 49).

Climate change not only poses a grave threat to indigenous peoples’ natural resources and

livelihoods, but also to their cultural identity and survival.

10. Examples of the impact of severe climate change on indigenous peoples include the

large-scale thawing of the ice in the traditional Arctic territories of the Inuit. Indigenous

peoples on the islands of the Pacific are directly threatened with total or partial

disappearance of their lands as a result of climate change.

11. Gendered impacts of climate change such as migration (being forced to seek

informal wage labour) and water scarcity (being forced to walk longer distances to seek

drinkable water) are likely to affect women and girls in particular, making them more

vulnerable to discrimination and exploitation. 5

12. Compounding these vulnerabilities, programmes to mitigate and adapt to climate

change, if designed without consulting indigenous peoples and implemented without their

participation, may adversely affect indigenous peoples’ rights and undermine their

customary rights to lands and natural resources.

13. The Special Rapporteur, in her previous role as Chair of the Permanent Forum on

Indigenous Issues, undertook a study in 2007 on the impact of climate change mitigation

measures on indigenous peoples and on their territories and lands (E/C.19/2008/10). In the

study she called for increased consultation with and participation of indigenous peoples in

climate change mitigation processes, raised concerns over the failure to apply a human

2 World Bank, Shock Waves: Managing the Impacts of Climate Change on Poverty (Washington, D.C., 2016) p. 2.

3 World Bank,The Role of Indigenous Peoples in Biodiversity Conservation: The Natural but Often

Forgotten Partners (Washington, D.C., 2008), p. 5.

4 World Resources Institute and Rights and Resources Initiative, Securing Rights, Combating Climate

Change: How Strengthening Community Forest Rights Mitigates Climate Change (Washington, D.C.,

2014).

5 International Labour Organization (ILO), Indigenous Peoples and Climate Change: From Victims to

Change Agents through Decent Work (Geneva, 2017), pp. 16-18.

rights-based approach to such measures and highlighted that indigenous peoples had not

benefited from climate change funds, which were largely market-driven.

14. Since being appointed Special Rapporteur on the rights of indigenous peoples in

2014, the mandate holder has received an increasing number of allegations concerning

situations where climate change mitigation projects have negatively affected the rights of

indigenous peoples, notably renewable energy projects such as biofuel production and the

construction of hydroelectric dams.

15. Indigenous peoples are, however, not simply victims of climate change but have an

important contribution to make to address climate change. Due to their close relationship

with the environment, indigenous peoples are uniquely positioned to adapt to climate

change. Indigenous peoples are also repositories of learning and knowledge about how to

cope successfully with local-level climate change and respond effectively to major

environmental changes such as natural disasters. Indigenous peoples play a fundamental

role in the conservation of biological diversity and the protection of forests and other

natural resources, and their traditional knowledge of the environment can substantively

enrich scientific knowledge and adaptation activities when taking climate change-related

actions.

B. Indigenous peoples contributions to adaptation and mitigation strategies

16. As they are among those most affected by climate change, indigenous peoples have

for over two decades been demanding greater protection of their human rights and

increased participation in the context of international discussions on climate change. They

continue to advocate for the development of a human rights-based approach to climate

change, in accordance with the principles of the United Nations Declaration on the Rights

of Indigenous Peoples.

17. In the early days of climate change law and policy, notably in the negotiations for

the United Nations Framework Convention on Climate Change in the early 1990s,

indigenous peoples were not involved in any significant way. However, persistent and

successful advocacy has resulted in recognition of indigenous peoples as a constituency

with observer status under the Convention. Indigenous peoples’ organizations can thus

apply for observer status, and those accepted can nominate participants to attend the

sessions of the different climate change bodies. The International Indigenous Peoples’

Forum on Climate Change is a joint indigenous peoples’ caucus established in 2008 to

coordinate indigenous peoples’ efforts and activities concerning Convention-related

processes.6

18. International climate change law and policy revolve around the twin strategies of

mitigation (the State obligation to reduce greenhouse gas emissions) and adaptation (the

State obligation to protect people against the effects of climate change by supporting their

capacity to adapt to its effects). Under the Convention’s equity principle, developed States,

as the principal producers of greenhouse gases historically and the most resource rich, shall

carry a heavier burden in mitigation and adaptation strategies, including assistance to

poorer countries and the development of technology.

19. The International Union for Conservation of Nature has raised the concern that the

emphasis on monetary, knowledge and technology transfer from developed to developing

countries tends not to recognize indigenous peoples’ own coping and adaptive strategies.7

20. The Intergovernmental Panel on Climate Change is the international body

responsible for assessing the science related to climate change. The Panel was established

in 1988 by the World Meteorological Organization and the United Nations Environment

6 See /www.iipfcc.org/. 7 International Union for Conservation of Nature, Indigenous and Traditional Peoples and Climate

Change, Issues Paper (2008), p. 4.

Programme (UNEP) to provide policymakers with regular scientific assessments of climate

change, its impacts and future risks, and options for adaptation and mitigation. Its

assessments provide a scientific basis for governments at all levels to develop climate-

related policies.8

21. In its Fifth Assessment Report, published in 2014, the Panel raised concerns that the

existing climate change policies and regulations might lead to limiting access to territories,

substitution of traditional livelihoods, reduced genetic diversity and harvesting

opportunities as well as loss of transmission of indigenous knowledge, which in turn may

limit the effect of climate change adaptation measures in many regions.9

22. The Panel also noted that indigenous knowledge has been effective in developing

measures to cope with climate hazards and has contributed to increased food security in

many parts of the world. Examples include the Inuit knowledge of climate variability when

hunting, the Inca traditions of crop diversification and knowledge of genetic diversity and,

in the Sahel, the use of water-harvesting strategies and weather forecasting.10

23. The Panel confirmed indigenous peoples’ long-standing claim in relation to

traditional knowledge that “indigenous, local, and traditional knowledge systems and

practices, including indigenous peoples’ holistic view of community and environment, are a

major resource for adapting to climate change, but these have not been used consistently in

existing adaptation efforts. Integrating such forms of knowledge with existing practices

increases the effectiveness of adaptation”. 11

24. Indigenous peoples can assist in providing solutions to mitigate and adapt to the

effects of climate change. The International Indigenous Peoples’ Forum on Climate Change

and UNEP have noted that indigenous peoples can contribute to numerous potential

adaptation activities by drawing on their traditional knowledge. Examples of such activities

include documentation of traditional knowledge; climate monitoring and reporting;

traditional fire management, disaster preparedness and response and early warning systems;

rainwater harvesting; traditional agriculture techniques; coastal marine management;

alternative energy development; and the development of sustainable livelihoods.

Furthermore, indigenous peoples can play a role in stopping deforestation by land titling,

forest management and conservation and local governance strengthening.12

IV. Human rights bodies, indigenous peoples and climate change

25. Human rights bodies are devoting increased attention to violations of indigenous

peoples’ rights in the context of climate change.

26. The Permanent Forum on Indigenous Issues, which addresses human rights issues as

part of its advisory mandate, as long as a decade ago decided to debate climate as a special

theme at its annual session and has undertaken several studies on the impact of climate

change on indigenous peoples (E/C.19/2008/10, E/C.19/2010/7).

27. Human rights treaty bodies, notably the Committee on Economic, Social and

Cultural Rights, the Committee on the Rights of the Child and the Committee on the

Elimination of Discrimination against Women, have addressed the impact of climate

change on indigenous peoples in the context of their periodic reviews of States parties.

Human rights treaty bodies have specifically called on States to develop national plans,

policies and programmes to address climate change, while fully engaging indigenous

peoples in their design. They have also called for disaster preparedness and emergency

8 See www.ipcc.ch/.

9 Intergovernmental Panel on Climate Change, Climate Change 2014: Impacts, Adaptation, and

Vulnerability, Part A: Global and Sectoral Aspects, Working Group II Contribution to the Fifth

Assessment Report of the Intergovernmental Panel on Climate Change (New York, Cambridge

University Press, 2014), chap. 7, p. 517. Available from www.ipcc.ch/report/ar5/wg2/.

10 Ibid., chap. 11, p. 718.

11 Ibid., Summary for Policymakers, p. 26. 12 UNEP, Climate Change and Human Rights, p. 27; see also www.iipfcc.org/key-issues.

management and strengthened social protection frameworks to more effectively mitigate

the multiple social, economic and environmental impacts on indigenous peoples.

Furthermore, they have urged States to intensify the efforts to address climate change,

including through carbon reduction schemes, and to take all necessary measures to mitigate

the adverse consequences on the rights to food and to water of indigenous peoples.13

28. The Office of the United Nations High Commissioner for Human Rights has

addressed the adverse effects of climate change on human rights (A/HRC/10/61) and in

October 2016 hosted an expert meeting which highlighted the impact climate change has on

indigenous peoples.14 The Office’s key messages on climate change and human rights,

published prior to the twenty-first session of the Conference of the Parties to the United

Nations Framework Convention on Climate Change, held in Paris in December 2015,

emphasized the right of indigenous peoples to participate in decision-making and to benefit

from the use of their knowledge, innovations and practices.

29. On 5 June 2015, World Environment Day, in a joint public statement, 27 special

procedure mandate holders, including the Special Rapporteur on the rights of indigenous

peoples, urged States to make sure that human rights are at the core of climate change

governance.15

30. In 2016, the Special Rapporteur on the issue of human rights obligations relating to

the enjoyment of a safe, clean, healthy and sustainable environment examined States’

human rights obligations in the context of climate change and highlighted the rights of

indigenous peoples (A/HRC/31/52).

31. Concerns over climate change are also increasingly being raised by States in the

context of the universal periodic review process, further highlighting the growing

recognition of climate change as a human rights issue. The Council has adopted several

resolutions related to climate change and indigenous peoples.16

V. Human rights and other international standards, including the United Nations Framework Convention on Climate Change and the Paris Agreement

32. Climate change has a negative impact on a broad range of human rights and

indigenous peoples are particularly vulnerable due to the exposure of their traditional lands

and territories. Human rights obligations entail State obligations to respect, protect and

fulfil human rights and redress violations. These duties require States to take action to meet

their obligations on human rights issues stemming from climate change. Human rights

bodies have established that States’ human rights obligations include a duty to protect rights

holders against foreseeable environmental impairment of human rights, whether or not the

particular environmental harm violates human rights law and even when the harm is not

directly caused by the State (A/HRC/25/53, A/HRC/31/52). States have specifically

committed to international cooperation through a range of international treaties.

33. As noted by the Permanent Forum on Indigenous Issues, the international system as

a whole requires that all the various international legal “subsystems”, including those

governing human rights and climate change, act consistently (E/C.19/2010/7).

34. The rights of indigenous peoples pertinent to climate change are firmly established

in a range of international standards that converge in various branches of international law,

notably international human rights law, international environmental law and international

labour law. In the preparation of the present report, the Special Rapporteur requested States

13 See CEDAW/C/HND/CO/7-8, CEDAW/C/VCT/CO/4-8, CRC/C/SUR/CO/3-4, CRC/C/NZL/CO/5,

E/C.12/CAN/CO/6, E/C.12/FIN/CO/6 and E/C.12/AUS/CO/4. Treaty body concluding observations

are available from http://uhri.ohchr.org/.

14 See www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/HRClimateChangeIndex.aspx.

15 See www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16049&LangID=E. 16 Resolutions 10/4 (2009), 18/22 (2011), 26/27 (2014), 29/15 (2015) and 32/33 (2016).

to reply to a questionnaire and was pleased to note that in their responses States recognized

the importance of applying the rights of indigenous peoples to climate change adaptation

and mitigation measures, and that additional funding was being allocated for such purposes.

35. Among the key rights affected are self-determination; the right to development; free,

prior and informed consent and the right to participation; land rights; the rights to health,

food, water and an adequate standard of living; and cultural rights. All these rights are

closely linked, and thus their interrelatedness requires consideration.17

36. The United Nations Framework Convention on Climate Change, which entered into

force in 1994, sets a lofty goal: to stabilize greenhouse gas concentrations at a level that

would prevent dangerous human-induced interference with the climate system, based on a

dual strategy of mitigation and adaptation measures.18

37. Building on the Convention, the Paris Agreement, which entered into force in 2016,

aims to strengthen the global response to the threat of climate change by keeping a global

temperature rise this century to below 2o Celsius above preindustrial levels and to pursue

efforts to limit the temperature increase even further, to 1.5o Celsius.19 As of 1 September

2017, of the 197 parties to the Convention, 160 had ratified the Paris Agreement.

38. The Paris Agreement is the first climate change treaty to explicitly recognize human

rights and the rights of indigenous peoples. The preamble acknowledges that climate

change is a common concern of humankind and that parties should, when taking action to

address climate change, respect, promote and consider their respective obligations on

human rights, the right to health and the rights of indigenous peoples. These references

provide an important milestone and commitment, as in implementing the Agreement,

parties should ensure that indigenous peoples’ rights are respected in their climate change

measures.

39. Despite these important developments, indigenous peoples were disappointed that

indigenous peoples’ rights were not more securely included in the Paris Agreement. One of

their key objectives was to include references to the rights of indigenous peoples in all the

relevant provisions on mitigation and adaptation. During the negotiations, Canada,

Guatemala, Mexico, Nicaragua, Peru and the Philippines, along with several Pacific island

States, supported the inclusion of references to indigenous peoples in the text. On the other

hand, other countries argued against their inclusion on the grounds that they were not

directly relevant to the purposes of the Agreement and out of concern over the potential

liability of including such references in the operative part of the text. The voluntary nature

of the references to indigenous knowledge systems in article 7 (5) on adaptation is viewed

as falling short of the goals of indigenous peoples.

A. Self-determination and the right to development

40. Self-determination is a fundamental principle of international law and of utmost

importance for indigenous peoples as it affirms their right to freely pursue their economic,

social and cultural development. It is a key right in the areas of climate change and climate

finance because of its links with land rights and the right of indigenous peoples to

participate in processes and decisions affecting them. The right to self-determination is

enshrined in common article 1 of the International Covenant on Economic, Social and

Cultural Rights and the International Covenant on Civil and Political Rights and in article 3

of the United Nations Declaration on the Rights of Indigenous Peoples.

41. Denial of indigenous peoples’ right to self-determination and their economic, social

and cultural rights is strongly linked to indigenous peoples’ historical experiences of

marginalization, dispossession, the environmental destruction of their ancestral lands and

their lack of autonomy. Unless climate finance recognizes this inequality, it could

17 See http://unsr.vtaulicorpuz.org/site/index.php/en/statements/63-panel-hrc-cc and A/HRC/31/52.

18 See http://unfccc.int/essential_background/convention/items/6036.php.

19 See http://unfccc.int/paris_agreement/items/9485.php.

contribute to the causes of poverty and further denial of the right to self-determination

among indigenous communities.

42. The right to development is affirmed in several provisions of the Declaration,

notably article 32 (1), which states that “indigenous peoples have the right to determine and

develop priorities and strategies for the development or use of their lands or territories and

other resources”.20

43. Climate actions that do not consider differentiated responsibilities among States may

undermine the right to development of indigenous peoples, especially those who live in

developing countries. When the burden of climate change is not shared in a differentiated

manner, developing countries are compelled to divert funding away from social policies to

deal with the emergency and long-term impacts of climate change.

B. Land rights, the right to participation and free, prior and informed

consent

44. The Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International

Labour Organization (ILO) enshrines land rights for indigenous peoples in articles 14 to 19.

The Declaration, which consolidates the rights of indigenous peoples already recognized in

other human rights instruments and through the jurisprudence of human rights treaty

bodies, affirms the right of indigenous peoples to own and control their lands (arts. 25, 26

and 27).

45. The Declaration sets out that States shall consult and cooperate with indigenous

peoples to obtain their free, prior and informed consent before adopting measures or

approving projects that may affect them (arts. 27 and 32). The Declaration furthermore

affirms that indigenous peoples have the right to participate in decision-making in matters

which would affect their rights, through representatives chosen by themselves in

accordance with their own procedures, as well as to maintain and develop their own

indigenous decision-making institutions (arts. 5, 18 and 27).

46. The right to participation is also entrenched in the United Nations Framework

Convention on Climate Change. Article 6 establishes that all parties to the Convention shall

promote and facilitate public access to information on climate change and its effects, and

public participation in addressing climate change and its effects and developing adequate

responses.

47. The Cancun Agreements, adopted at the sixteenth session of the Conference of the

Parties to the Convention, held in 2010 (FCCC/CP/2010/7/Add.1), recognize that the

participation of indigenous peoples is important for effective action on all aspects of

climate change. In an analogous manner, the General Assembly has also recognized the

importance of public participation in addressing the impacts of climate change and

recognized the need to engage a broad range of stakeholders at the global, regional, national

and local levels, and that indigenous peoples are important for effective action on all

aspects of climate change.21

48. A prerequisite to ensuring effective participation is the provision of and access to

information. As set out in article 4 (1) (f) of the Convention, States should undertake

environmental impact assessments and ensure that such information is publicly available.22

The Special Rapporteur on human rights and the environment has underlined the

importance of undertaking assessments of actions designed to alleviate the effects of

climate change (see A/HRC/31/52, para. 53). Furthermore, the International Court of

Justice has affirmed that it is a requirement under general international law to undertake an

environmental impact assessment where there is a risk that an activity may have a

20 See also articles 21 and 23.

21 Resolution 67/210, para. 12. 22 UNEP, Climate Change and Human Rights, pp. 16-17; see also A/HRC/31/52, paras. 50-55.

significant adverse impact in a transboundary context and, in particular, on a shared

resource.23

49. The participation of indigenous peoples in decision-making and the availability of

information and engagement mechanisms for them to do so are crucial elements in efforts

to tackle climate change in a manner that is consistent with human rights obligations.

50. Climate change projects may create barriers to indigenous landownership. This is

underlined by concerns that climate finance has been provided for mitigation measures such

as biofuel production and renewable energy projects, including hydroelectric dams, on

indigenous territories without undertaking consultations to ensure the free, prior and

informed consent of the affected peoples. Such projects risk compounding long-standing

and systemic violations of the rights of indigenous peoples. Displacements caused by the

loss of land and territory further undermine the cultural integrity and protection of

indigenous peoples.

C. Rights to health, water and food and an adequate standard of living

51. Article 11 of the International Covenant on Economic, Social and Cultural Rights

upholds the fundamental right of everyone to be free from hunger. While the Covenant does

not explicitly refer to the right to water, the Committee on Economic, Social and Cultural

Rights has underlined that the right to water is part of the right to an adequate standard of

living and has stressed that the right to water is inextricably linked to the rights to health,

adequate housing and food. It has also affirmed that States should adopt comprehensive

programmes to ensure sufficient water for future generations by assessing the impacts of

actions that may impinge upon water availability and natural ecosystems, such as climate

change.24 States are obliged to progressively realize the rights contained in the Covenant.

52. Article 2 of both the United Nations Framework Convention and the Paris

Agreement affirms the objective to ensure that food production is not threatened by climate

change. The right to health is explicitly referred to in the preamble to the Agreement. In

relation to indigenous peoples and climate change, human rights treaty bodies have

expressed concern over how climate change mitigation measures such as biofuel projects

affect indigenous peoples, and in particular the threats monoculture poses to food security.25

53. In the Fifth Assessment Report, the Intergovernmental Panel on Climate Change

concludes that indigenous peoples, who depend heavily on local resources and live in parts

of the world where the climate is changing quickly, are generally at greater risk of

economic losses and poor health.26 The Panel furthermore notes that indigenous knowledge

is important for food security in many parts of the world and that climate change policies

may risk reducing the contribution that indigenous knowledge can make to effective

climate adaptation.27

D. Culture and traditional knowledge

54. The Declaration establishes, in article 31, that “indigenous peoples have the right to

maintain, control, protect and develop their cultural heritage, traditional knowledge and

traditional cultural expressions, as well as the manifestations of their sciences, technologies

and cultures, including human and genetic resources, seeds, medicines, [and] knowledge of

the properties of fauna and flora”.

23 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14.

24 General comment No. 15 (2002) on the right to water; submission by the Office of the United Nations

High Commissioner on Human Rights to the twenty-first session of the Conference of the Parties to

the United Nations Framework Convention on Climate Change.

25 E/C.12/IDN/CO/1; CERD/C/IDN/CO/3; CERD/C/COL/CO/14; CERD/C/NLD/CO/19-21.

26 Intergovernmental Panel on Climate Change, Climate Change 2014, chap. 11, p. 718.

27 Ibid., chap. 7, p. 520.

55. Article 7 (5) of the Paris Agreement provides: “Parties acknowledge that adaptation

action should follow a country-driven, gender-responsive, participatory and fully

transparent approach, taking into consideration vulnerable groups, communities and

ecosystems, and should be based on and guided by the best available science and, as

appropriate, traditional knowledge, knowledge of indigenous peoples and local knowledge

systems, with a view to integrating adaptation into relevant socioeconomic and

environmental policies and actions.” The recognition of these knowledge systems provides

an important foundation for climate change adaptation and mitigation policies.

56. In the outcome document adopted at the World Conference on Indigenous Peoples,

held in 2014, States explicitly confirm that indigenous peoples’ knowledge and strategies to

sustain their environment should be respected and taken into account in developing national

and international approaches to climate change mitigation and adaptation.28

57. In the Fifth Assessment Report, the Intergovernmental Panel on Climate Change

notes that indigenous knowledge is challenged by climate change impacts and is often

neglected in policy and research, and that its mutual recognition and integration with

scientific knowledge will increase the effectiveness of adaptation strategies.29 The Panel

furthermore states that local and indigenous knowledge and diverse stakeholder interests,

values and expectations are fundamental to building trust within climate change decision-

making processes.30

58. In a positive development, the decision adopted by the Conference of the Parties to

the United Nations Framework Convention at its twenty-first session accompanying the

adoption of the Paris Agreement, which lays out the programme of work for the coming

years, specifically recognizes the need to strengthen knowledge, technologies, practices and

efforts of local communities and indigenous peoples related to addressing and responding

to climate change, and to establish a platform for the exchange of experiences and sharing

of best practices on mitigation and adaptation in a holistic and integrated manner (see

FCCC/CP/2015/10/Add.1, para. 135).

59. As noted by the International Indigenous Peoples’ Forum on Climate Change, it is

essential to respect the traditional knowledge that indigenous peoples bring to address

issues relating to climate change, including causes, adaptation, mitigations and solutions.

Indigenous peoples are committed to protect, use and apply traditional knowledge and

practices to implement solutions and ways to adapt to climate change within indigenous

communities. Climate change solutions cannot be limited to Western scientific knowledge,

but must include indigenous peoples’ traditional knowledge, innovations and practices,

which have historically contributed to the efforts of conservation of ecosystems and

biodiversity.31

E. International cooperation

60. Under the Convention, industrialized States agree to support climate change

activities in developing countries by providing financial support for action. The Convention

acknowledges the vulnerability of all countries to the effects of climate change and calls for

special efforts to ease the consequences, especially in developing countries that lack the

resources to do so on their own.32

61. International cooperation to promote and protect human rights lies at the heart of the

Charter of the United Nations (see A/HRC/10/61, para. 85). The obligation to undertake

such cooperation is explicitly affirmed in provisions of the Declaration,33 the International

28 General Assembly resolution 69/2, para. 36.

29 Intergovernmental Panel on Climate Change, Climate Change 2014, chap. 12, p. 758.

30 Ibid., chap. 2, p. 198.

31 See www.iipfcc.org/key-issues/.

32 See http://unfccc.int/essential_background/convention/items/6036.php.

33 Articles 39 and 41.

Covenant on Economic, Social and Cultural Rights34 and the Convention on the Rights of

the Child.35

62. The specific reference to conservation in article 29 of the Declaration is also relevant

to many climate change mitigation projects. This article states that indigenous peoples have

the right to the conservation and protection of the environment and to the productive

capacity of their lands or territories and resources and that States shall establish and

implement assistance programmes for indigenous peoples for such conservation and

protection, without discrimination.

63. International cooperation is imperative to address climate change. The effects of

climate change are significantly higher in developing countries, where indigenous peoples

often are the most exposed due to their geographic location and high poverty rates.

F. Right to redress and reparation

64. Climate change is already having a severe impact on indigenous peoples by

damaging their natural resources. Climate mitigation measures undertaken without their

free, prior and informed consent are forcing indigenous peoples to leave their lands and

territories.

65. The rights to redress and reparation are well-established principles of international

law36 and reflected in human rights treaties.37 Article 8 of the Declaration sets out the right

to effective mechanisms for prevention of, and redress for, actions which have the aim or

effect of dispossessing indigenous peoples of their lands, territories or resources.

66. The Declaration (art. 10) stipulates that indigenous peoples shall not be forcibly

removed from their lands unless they have provided their free, prior and informed consent.

Should such violations have occurred, victims have the right to fair redress, including

restitution and compensation, and, where possible, the option of returning to their lands.

When this is not possible, they are entitled to just, fair and equitable compensation for the

lands, territories and resources which they have traditionally owned or otherwise occupied

or used and which have been confiscated, taken, occupied, used or damaged without their

free, prior and informed consent. Compensation shall take the form of lands, territories and

resources equal in quality, size and legal status or of monetary compensation or other

appropriate redress (article 28 of the Declaration).

67. Human rights treaty bodies have expressed concerns over the forcible displacement

of indigenous peoples, noting the special relationship that indigenous peoples have with

their land and the profound impact forced displacement has on their survival, and urged

States to provide reparation, with emphasis on the obligation to provide restitution of the

original lands.38 Reparation measures should be provided in accordance with international

standards and, where appropriate, entail elements of restitution, compensation,

rehabilitation, satisfaction and guarantees of non-recurrence.39

68. The United Nations Framework Convention does not recognize a right to access

justice or remedies for individuals; it refers only to modalities for dispute settlement

between parties. At the nineteenth session of the Conference of the Parties, held 2013,

34 Articles 2 (1), 11 (2), 15 (4), 22 and 23.

35 Articles 4 and 24 (4). 36 Factory at Chorzów (Germany v. Poland), Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No.

9, pp. 21, 47; International Law Commission, draft articles on responsibility of States for

internationally wrongful acts, Official Records of the General Assembly, Fifty-sixth Session (A/56/10),

chap. IV.E.1.

37 Universal Declaration of Human Rights, art. 8; International Covenant on Civil and Political Rights,

art. 2 (3) (a), International Convention on the Elimination of All Forms of Racial Discrimination, art.

6.

38 Committee on the Elimination of Racial Discrimination, general recommendation No. 23 (1997) on

the rights of indigenous peoples; CERD/C/BWA/CO/16; CERD/C/NAM/CO/12; E/C.12/MEX/CO/4.

39 General Assembly resolution 60/147.

parties established the Warsaw International Mechanism for Loss and Damage Associated

with Climate Change Impacts, including extreme events and slow-onset events in

developing countries that are particularly vulnerable to the adverse effects of climate

change.40

69. The Paris Agreement affirms in article 8 that parties should enhance understanding,

action and support, including through the Warsaw International Mechanism, on a

cooperative basis with respect to loss and damage associated with the adverse effects of

climate change. As noted by the Special Rapporteur on human rights and the environment,

it is important to apply a human rights perspective when identifying the types of loss and

damage (see A/HRC/31/52, para. 64). It is furthermore of crucial importance that the rights

of indigenous peoples be taken into due account when addressing loss and damage caused

by climate change.

70. In conclusion, the present section of the report demonstrates the synergies and

complementarity between human rights and international environmental law. There is

increasing convergence regarding key principles and standards, notably in relation to the

right to access information, the right to participation and the rights to seek redress and

receive reparation. It is an important and positive development that climate change law and

policy are gradually recognizing and incorporating human rights provisions in response to

calls from indigenous peoples and human rights bodies.

G. Sustainable Development Goals

71. Although not legally binding, the Sustainable Development Goals, adopted in 2015,

constitute the global development agenda until 2030. They incorporate several important

elements relevant to climate change and indigenous peoples’ rights.

72. The voice of indigenous peoples is key in moving towards greater policy coherence.

This is particularly the case when development interventions seek to attain intrinsically

linked objectives related to economic growth, poverty reduction, sustainable development

and climate change. 41 The following highlights some of the Goals that climate change

policy and finance need to take into account to address the rights of indigenous peoples.

73. The Goal relating to climate change establishes targets for the promotion of

mechanisms for raising capacity for effective climate change-related planning and

management in least developed countries, including focusing on women, youth and local

and marginalized communities (target 13.b). This target relates to, and should be read in

conjunction with, the Declaration which in article 5 provides that “indigenous peoples have

the right to maintain and strengthen their distinct political, legal, economic, social and

cultural institutions, while retaining their right to participate fully, if they so choose, in the

political, economic, social and cultural life of the State” and to article 18, which provides

indigenous peoples with the “right to participate in decision-making in matters which

would affect their rights, through representatives chosen by themselves in accordance with

their own procedures, as well as to maintain and develop their own indigenous decision-

making institutions”.

74. The Goal relating to the need to sustainably manage forests, combat desertification,

halt and reverse land degradation and halt biodiversity loss calls for the mobilization and

significant increase of financial resources from all sources to conserve and sustainably use

biodiversity and ecosystems (target 15.a). It also calls for the mobilization of significant

resources from all sources and at all levels to finance sustainable forest management and

provide adequate incentives to developing countries to advance such management,

including for conservation and reforestation (target 15.b). The latter target relates to article

39 of the Declaration, which provides for the right of indigenous peoples to access financial

and technical assistance from States and through international cooperation for the

enjoyment of the rights contained in the Declaration.

40 See http://unfccc.int/adaptation/workstreams/loss_and_damage/items/8134.php.

41 ILO, Indigenous Peoples and Climate Change, p. 20.

VI. State commitments, national reports and intended nationally determined contributions

75. Parties to the United Nations Framework Convention on Climate Change must

submit national reports, also known as communications, on implementation of the

Convention to the Conference of the Parties.42 The required content of national reports and

the timetable for their submission are different for annex I and non-annex I parties, in

accordance with the principle of “common but differentiated responsibilities” enshrined in

the Convention.43

76. A study by the Mary Robinson Foundation of national reports submitted between

2010 and 2015 concluded that the majority did not refer to human rights, such as the right

to health, the right to adequate food or the right to water and sanitation, although the

majority of the reports contained references to domestic policies and measures that related

to human rights protection. The vast majority — over 95 per cent — of the references to

substantive rights were in reports from developing countries, probably because these

countries were already feeling the impacts of climate change on such rights as water, food,

health and shelter due to extreme events, rising sea levels and changing seasons.

77. The study concluded that international reporting processes still tended to deal with

human rights and climate change as separate issues. The authors urged the adoption of a

more cohesive approach that would better reflect realities on the ground, where rights,

development and climate change are interlinked.44

78. Furthermore, in 2013 the Conference of the Parties invited all parties to develop

reports by 2015 on intended nationally determined contributions (INDCs) towards

achieving the objective of the Convention, as set out in its article 2.45 INDCs play an

important role in the framework established by the Paris Agreement as they form the

implementation plans through which each Government defines the level of its commitment

and identifies how it will implement its obligations. UNEP has raised concerns that only 14

of the first 119 INDCs submitted referred to linkages between climate change and the

impact of mitigation and or adaptation measures on indigenous peoples. 46 Of further

concern is that references in INDCs to respect for human rights tended to be general,

without concrete detail.

79. Furthermore, a review undertaken by the non-governmental organization (NGO)

Rights and Resources Initiative of 161 INDCs noted that only 21 of them, representing less

than 13 per cent of the world’s tropical and subtropical forest area, included clear

commitments to implement community-based tenure or natural resource management

strategies as part of their climate change mitigation plans or adaptation actions.47

80. Parties to the Convention should prepare their INDCs in a manner that enables the

full and effective participation by indigenous peoples and civil society, as well as other

parts of the population particularly affected by climate response measures.48 Furthermore,

parties should explain the steps taken to increase participation of all stakeholders in

developing the INDC reports.

81. Without a participatory approach and public access and awareness of reporting

processes, States may seek to eschew their obligations under human rights law by

conceptualizing climate change processes as disconnected from human rights. In order to

prove their commitment to honour their human rights obligations, States must acknowledge

42 Article 7. 43 See http://unfccc.int/national_reports/non-annex_i_natcom/items/10124.php.

44 See www.mrfcj.org/.

45 See http://unfccc.int/files/focus/indc_portal/application/pdf/synthesis_report_-_overview.pdf; and

http://unfccc.int/ focus/indc_portal/items/8766.php.

46 UNEP, Climate Change and Human Rights, pp. 30-31. 47 See http://rightsandresources.org/wp-content/uploads/2016/04/Indigenous-Peoples-and-Local-

Community-Tenure-in-the-INDCs-Status-and-Recommendations_RRI_April-2016.pdf.

48 See www.ciel.org/wp-content/uploads/2017/05/Delivering-On-Paris-Web.pdf.

the implications of climate change on human rights in the context of climate change

mitigation and adaptation law and policies.

82. It is encouraging that an increasing number of countries are recognizing the

importance of integrating adaptation measures into agriculture and food production, while

ensuring food security and sustainability of agriculture in a manner that supports

indigenous farming practices and traditional knowledge.

83. Global and national climate change interventions are gradually acknowledging the

benefit of collaboration with indigenous peoples to identify and document trends in

regional and local climate changes in order to understand their long-term implications and

to develop effective and appropriate adaptation responses based on traditional knowledge.

Recognition of the important role indigenous peoples can play not only assists in combating

climate change but also helps revitalize and strengthen indigenous peoples, their knowledge

and culture.

VII. Climate finance and safeguards

84. Considerable investments are required in both developed and developing countries

to adapt to, and mitigate effects of, climate change. However, developing and

geographically vulnerable countries face by far the greatest adaptation challenges.

Indigenous peoples are at particularly high risk of being pushed into extreme poverty.

85. UNEP has warned that a significant gap is likely to emerge between the resources

needed to adapt to warming of 2º Celsius and the funding that will be made available

through international climate funds and other finance mechanisms. The existing estimates

of global adaptation costs are probably significantly underestimated, notably for the period

after 2030. Most international climate finance to developing countries in the past few years

has been channelled towards mitigation, rather than adaptation.49

86. Article 9 of the Paris Agreement provides that “developed country Parties shall

provide financial resources to assist developing country Parties with respect to both

mitigation and adaptation” and that the “mobilization of climate finance should represent a

progression beyond previous efforts”. It states furthermore that “such mobilization of

climate finance should represent a progression beyond previous efforts” and that “the

provision of scaled-up financial resources should aim to achieve a balance between

adaptation and mitigation, taking into account country-driven strategies, and the priorities

and needs of developing country Parties”.

87. In 2009, developed countries committed to a goal of mobilizing $100 billion per

year by 2020 to address the needs of developing countries in the context of “meaningful

mitigation actions”. However, pledges have remained far below the $100 billion annual

target and financial commitments for loss and damage caused by the effects of climate

change remain unpaid.

88. Climate finance refers to funding sourced from public and private sectors and

channelled through various mechanisms and funds for climate change mitigation and

adaptation projects and programmes. A key concern of developing countries is that climate

finance prioritizes financial support for mitigation over adaptation measures. They prefer

that climate finance be channelled through a global mechanism or fund to ensure that the

allocations are more equally distributed between adaptation and mitigation.

89. While it is beyond the scope of the present report to refer to the multitude of climate

finance mechanisms and funds that exist, some observations are presented on those that

particularly affect indigenous peoples’ rights.

49 UNEP, Climate Change and Human Rights, p. 32.

A. Global Environment Facility

90. The Global Environmental Facility, established in 1991 through the World Bank, is

the oldest financial mechanism under the United Nations Framework Convention on

Climate Change. Between 15 and 20 per cent of the Facility’s projects involve indigenous

peoples and some projects have indigenous executing agencies. Important steps have been

undertaken by the Facility to support indigenous participation. Principles and guidelines for

engagement with indigenous peoples were adopted in 2012. 50 Among the positive

initiatives undertaken by the Facility is the establishment of the Indigenous Peoples

Advisory Group and the creation of the Indigenous Peoples Fellowship Programme.

91. The Facility has created a small grants programme which has provided over $850

million to over 22,000 projects in 129 countries However, it has to be noted that as yet there

are no disaggregated data available on how much of these funds went directly to indigenous

peoples’ communities. An assessment is needed of the lessons learned in terms of impact

and of ensuring that the rights and priorities of indigenous peoples are respected and to

show the real amount of funds received by indigenous peoples compared with the overall

amounts released.

B. Clean Development Mechanism

92. The Clean Development Mechanism has been operational since 2006. Through its

emission reduction projects, developing countries earn certified emission reduction credits

which can be used by developed countries to meet a part of their emission reduction targets

under the Kyoto Protocol.51 The Mechanism has been widely criticized for having failed to

safeguard human rights as its lack of safeguards has resulted in support for projects which

have resulted in the displacement of local communities, and the Special Rapporteur has

received allegations of violations of indigenous peoples’ rights experienced in such

renewable energy projects funded by the Mechanism as hydroelectric dams and tree

plantations. The International Indigenous Peoples’ Forum on Climate Change has been very

critical of Mechanism projects set up in indigenous communities without consultation or

the free, prior and informed consent of the affected community.

93. UNEP also notes that the Mechanism projects have been characterized by

insufficient local stakeholder consultations and clear evidence that they have caused harm

to the local populations and/or ecosystems.52 The Special Rapporteur on human rights and

the environment referred to the Mechanism in 2016 as the one climate mechanism which

most obviously lacks effective social and environmental safeguards and which has been

dogged by the strongest accusations of supporting projects with serious human rights

abuses.53

94. There is criticism of the very nature of the Mechanism. Developed countries are the

main greenhouse gas emitters and, according to the Convention, they are the ones that

should carry the heavier burden of mitigation. However, the Mechanism allows developed

countries to buy carbon credits from developing countries so that they can emit more but

still meet the Kyoto targets. As a result, developed world’s burden of cutting back

emissions is met by the efforts of the developing world. Developed countries support

mitigation projects in developing countries through subsidies in the form of loans or grants,

and the certified emission reductions from such Mechanism projects will be owned by the

developed countries to add to their emission reduction targets.

50 See www.thegef.org/publications/principles-and-guidelines-engagement-indigenous-peoples.

51 See http://cdm.unfccc.int/index.html.

52 UNEP, Climate Change and Human Rights,p. 36.

53 See www.ohchr.org/Documents/Issues/Environment/Letter_to_SBSTA_UNFCCC_May2016.pdf;

and www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=19962&LangID=E.

C. United Nations Programme on Reducing Emissions from Deforestation

and Forest Degradation (REDD-plus)

95. In 2007, the parties agreed that a comprehensive approach to mitigating climate

change should include incentives to reduce emissions from deforestation. REDD-plus is a

global initiative to pay countries to protect their forests in order to reduce emissions of

greenhouse gases.

96. The strong advocacy of indigenous peoples and NGOs at the sixteenth session of the

Conference of the Parties in 2010 resulted in the adoption of safeguards for REDD-plus

which call, inter alia, for respect for the knowledge and rights of indigenous peoples and

members of local communities by taking into account relevant international obligations,

national circumstances and laws, and noting that the General Assembly had adopted the

Declaration.54

97. The “Cancun safeguards” also include the need to ensure the full and effective

participation of indigenous peoples and local communities. Subsequent guidance notes

developed by REDD-plus have further elaborated on how the free, prior and informed

consent of indigenous peoples will be obtained. However, implementation of these

safeguards has proved problematic. Indigenous peoples and local communities are often not

recognized as owners of forests by the State in national laws; there is therefore concern that

they will not see equitable benefits from REDD-plus projects and that forest and climate

schemes risk driving a global “green land grab”.55

98. Several indigenous peoples in countries where REDD-plus is being implemented

have actively engaged with Governments to ensure that the safeguards are implemented.

REDD-plus finance provided by Governments, including Australia, Germany, Norway and

the United States of America, include resources to help build capacity to implement the

safeguards. While there are still serious challenges in efforts to implement REDD-plus

safeguards, opportunities for indigenous peoples to enter into constructive dialogues with

Governments have been enhanced.

D. Adaptation Fund

99. The Adaptation Fund was created in 2001 under the United Nations Framework

Convention and designed to finance climate change adaptation projects based on the

priorities of eligible developing countries. Its primary funding comes from a 2 per cent

share of proceeds of the certified emission reductions issued by the Clean Development

Mechanism.56

100. The environmental and social policy of the Fund requires that all projects comply

with the rights and responsibilities contained in the Declaration and other applicable

international instruments relating to indigenous peoples. The implementing entity has to

describe how the project complies with the Declaration, particularly with regard to free,

prior and informed consent, during project design and implementation, as well as how

expected outcomes will affect the indigenous communities. The implementing entity must

provide documentary evidence, including detailed outcomes of the consultation process.

101. The policy also requires that environmental and social assessments be available for

public consultation. The Adaptation Fund is one of the better mechanisms for addressing

the relevant human rights obligations of States.

54 See FCCC/CP/2010/7/Add.1, decision 1/CP.16, appendix I, para. 2 (e). 55 See www.forestpeoples.org/en/work-themes/climate-forests/redd-and-related-initiatives.

56 See www.adaptation-fund.org/about/.

E. Green Climate Fund

102. In 2010, the Conference of Parties to the United Nations Framework Convention

also established the Green Climate Fund as its financial operating entity to disburse funds

for low-emission and climate-resilient projects, taking into account the needs of States that

are particularly vulnerable to climate change impacts.57 The Fund, which began approving

proposals in 2015, aims for an equal balance between mitigation and adaptation

investments. It is the largest international climate fund helping developing counties respond

to climate change.

103. In 2014, the Fund’s board decided to adopt, on an interim basis, the environmental

and social performance standards of the International Finance Corporation for projects

financed by the Fund. These standards and the Fund’s governing instrument stipulate the

need to demonstrate full respect for the rights of indigenous people and to protect their

cultural heritage. The board also adopted terms of reference for an independent redress

mechanism to receive complaints related to the operation of the Fund.58

104. Despite these aims, barriers to effective engagement by indigenous peoples in the

Fund’s activities and access to funding remain. For example, indigenous peoples’

organizations have yet to be accredited, or even apply to become accredited, as entities or

executing entities for projects. The high costs and complexities of preparing proposals

disadvantage indigenous peoples, given their limited resources.

105. At its fifteenth meeting, the board requested the secretariat to develop a Fund-wide

indigenous peoples policy. A draft was published on 12 July 2017 for consultation.59 The

overall objective is to provide a framework for ensuring that activities of the Fund are

developed and implemented while fostering full respect for indigenous peoples’ dignity,

human rights and cultural uniqueness so that they receive culturally appropriate social and

economic benefits and do not suffer adverse effects during the development process. The

policy provides an opportunity for the Fund to incorporate indigenous peoples’

considerations into its decision-making and operations in ways that not only include

safeguard measures of “do no harm”, but also identify opportunities to “do good” and

improve outcomes.

106. In conclusion, the safeguards, policies and practices, including for redress, that have

been developed for indigenous peoples, in particular by the Adaptation Fund and the Green

Climate Fund, are significant. Their practical application, however, does require continuous

independent monitoring.

VIII. Examples of mitigation projects of concern

107. Since assuming the mandate in 2014, the Special Rapporteur has received a number

of allegations regarding specific projects funded in the context of climate finance which

have not respected safeguards and have negatively affected indigenous peoples’ rights.

Cases relating to renewable energy projects as mitigation measures which have been

subject to urgent actions by the mandate include the Barro Blanco hydropower project in

Panama,60 the Water Towers Protection and Climate Change Mitigation and Adaptation

Programme in Kenya61 and the Agua Zarca dam in the Río Blanco region in Intibucá,

Honduras. 62 These cases highlight the risks associated with climate change mitigation

projects which do not uphold respect for indigenous peoples’ rights, notably their rights to

be consulted and to provide their free, prior and informed consent.

57 See www.greenclimate.fund/.

58 See www.greenclimate.fund/independent-redress-mechanism.

59 Tebtebba Foundation, Indigenous Peoples and the Green Climate Fund (Baguio City, Philippines,

2017).

60 PAN1/2016. All public cases are available from www.ohchr.org/EN/HRBodies/SP/Pages/

CommunicationsreportsSP.aspx.

61 KEN1/2017. 62 HND4/2013, HND3/2014, HND2/2016, HND4/2016, HND4/2017.

108. Alleged human rights violations include evictions and forced displacements,

suppression of the freedom of expression and assembly, arbitrary arrests and extrajudicial

executions. Indigenous peoples who defend the right to their lands are increasingly coming

under threat and being persecuted in the context of investment projects, which may include

climate change mitigation measures. As a result, projects may come to a halt and result in

the withholding of financial support by multilateral funds, as was the case in Honduras.

A. Barro Blanco hydroelectric project in Panama

109. Test flooding at the Barro Blanco reservoir project in 2016 prompted allegations of

displacement and negative impacts on the traditional lands and cultural sites of the Ngäbe

peoples. The project was eligible for carbon credits and registered under the Clean

Development Mechanism, which, as previously noted, does not have standards to protect

against human rights violations, nor does it provide a forum for affected communities to

register complaints. In late 2016, under pressure from indigenous communities and

international organizations, Panama withdrew the project from the Mechanism’s registry.63

The Center for International Environmental Law reported that this was the first time that a

host country had taken such action because of human rights concerns.64

B. Water Tower Protection and Climate Change Mitigation and

Adaptation Programme in Kenya

110. Despite the Sengwer people’s strong ties to their ancestral lands in the Embobut

forest, members of the community have been subjected to numerous displacements by the

Kenyan authorities since the 1970s. An escalation of the situation took place in December

2016, despite ongoing judicial proceedings to clarify the rights of the Sengwer to remain in

the forest. Conservation projects in the past have resulted in loss of access to the forest, as

recognized by the World Bank Inspection Panel in the context of activities undertaken by

the Natural Resource Management Project run by the World Bank from 2007 to 2013. A

World Bank investigation report65 concluded that the project had neglected the customary

rights of the Sengwer and that the implementation agent, the Kenya Forest Service, then

funded by the World Bank, had applied a policy based on undertaking evictions, in

violation of World Bank safeguards and international law.

111. In the context of climate change projects, concerns about the intensification of

forced evictions and the threats to the Sengwer people’s rights to lands and livelihoods

remain. Allegations have been received regarding the Water Towers Protection and Climate

Change Mitigation and Adaptation Programme, which is supported by the European Union.

The Kenya Forest Service is among the implementation agencies. The project has

reportedly failed to consult adequately with the indigenous peoples affected and to

undertake an assessment of the human rights impacts.

C. Agua Zarca hydroelectric project in Honduras

112. The Agua Zarca dam in Honduras is another emblematic case of violence, impunity

and lack of access to justice that threatens indigenous peoples in the context of climate

change-related investment projects. Following her country visit to Honduras in 2015, the

Special Rapporteur drew attention to the impacts generated by investment projects on the

lands, natural resources, cultures, spirituality, social coexistence, lives and personal

integrity of the indigenous peoples in Honduras. Between 2010 and 2014, 101 human rights

63 See http://carbonmarketwatch.org/press-statement-in-landmark-decision-panama-withdraws-un-

registration-for-barro-blanco-hydrodam-project/.

64 See www.ciel.org/panama-withdraws-problematic-barro-blanco-dam-project-cdm-registry/. 65 World Bank, Kenya: Natural Resource Management Project: Management Report and

Recommendation in Response to the Inspection Panel Investigation Report (Washington, D.C., 2014).

defenders were killed in Honduras, many of them from indigenous communities that

resisted development projects on their territory.66

113. The Agua Zarca dam is a renewable energy project carried out on the Gualcarque

River by the Government of Honduras as part of its larger energy policy supporting the

implementation of hydroelectric and wind projects to reduce the use of fossil fuels. It is one

of about 40 hydroelectric projects. The project involves a 20-year concession in favour of

the Honduran company Desarrollo Energético S.A. and was initially funded by a private

equity fund whose main contributor was the International Finance Corporation, part of the

World Bank Group. In 2011, the company began to acquire lands that were part of the

ancestral territory of indigenous Lenca communities. The communities objected to the

project as it affected their lands, crops, water sources and habitat. In addition, they consider

the Gualcarque River sacred as it is home to female spiritual beings. The dam has resulted

in great community divisions, death threats, harassment, criminalization and the

extrajudicial executions of indigenous Lenca leaders opposed to the project.

114. Protests against the dam in 2013 led to the withdrawal of the private equity fund, so

the World Bank ceased active participation in the project. In March 2016, Lenca leaders

Berta Cáceres and Nelson García, who had both led protests against the Agua Zarca project,

were assassinated. Following their killings, the investors, the Netherlands Development

Finance Company-FMO, the Central American Bank for Economic Integration and

Finnfund, suspended funding for the project.

D. Other related situations

115. There are numerous projects related to human rights violations against indigenous

peoples in the context of renewable energy projects but where the funding cannot be

certifiably linked to climate finance. A potential example includes the construction of the

Don Sahong dam in the Lao People’s Democratic Republic.67

116. The Don Sahong dam project is currently under construction, affecting indigenous

peoples living along the banks of the Lower Mekong River (which also spans Cambodia,

Thailand and Viet Nam). Mega First, a Malaysian company which is leading the

construction, manifests its intention to increase investments in clean, renewable sources of

energy.68

117. The company makes no references to respect for human rights in its reports. A

number of violations, including of the right to information and participation and the rights

to food, health, housing and culture of indigenous peoples, have occurred. No known

efforts have been made to obtain the free, prior and informed consent of the indigenous

peoples whose lands, territories and resources are affected.

IX. Conclusions and recommendations

A. Conclusions

118. Indigenous peoples have been engaged with the climate change processes since

1992, when the United Nations Framework Convention on Climate Change was

opened for ratification, and have consistently advocated for respect and protection of

their rights. While there are no references to indigenous peoples in the Convention,

indigenous peoples rights have been recognized in subsequent decisions of the

Conferences of the Parties and in the Paris Agreement. Respect for human rights

66 See www.globalwitness.org/en/campaigns/environmental-activists/honduras-deadliest-country-world-

environmental-activism/.

67 LAO1/2016.

68 See http://mega-first.com/pdf/ar_2016.pdf.

must be an integral component of all decisions and actions taken on climate change

mitigation and adaptation measures.

119. In order to prove their commitment to honour their human rights obligations,

States must acknowledge the implications of climate change on human rights in the

context of climate change mitigation and adaptation law and policies. As noted by the

Intergovernmental Panel on Climate Change, indigenous traditional knowledge

systems and practice are a major resource for adapting to climate change and will

contribute to making such measures more effective.

120. Climate finance has the potential to reinforce the efforts of indigenous peoples

to adapt to the impacts of climate change and contribute to climate change mitigation.

However, it also has the potential to create adverse impacts which undermine the

rights of indigenous peoples. Violations of indigenous peoples rights have been seen in

the implementation of renewable energy projects such as hydroelectric dams and

windmills and REDD-plus projects.

121. Regarding climate change funds, indigenous peoples rights are referred to in

the policies and safeguards of REDD-plus, the Green Climate Fund, the Adaptation

Fund and the Global Environmental Facility. The practical application of these

policies, however, requires continuous independent monitoring. Some climate finance

mechanisms still fail to acknowledge the United Nations Declaration on the Rights of

Indigenous Peoples and human rights standards. The adoption of a human rights-

based approach to all climate finance is crucial.

B. Recommendations

122. States should:

(a) Adopt all necessary policy, legal and administrative measures to

effectively engage indigenous peoples in climate change adaptation and mitigation

measures with full recognition of their rights over their lands, territories and

resources as enshrined in international human rights law and recognized in the United

Nations Framework Convention and the Sustainable Development Goals;

(b) Ensure that indigenous peoples are effectively included in national

climate change planning and monitoring processes;

(c) Comply with the duty to consult and obtain the free, prior and informed

consent of indigenous peoples at all stages in the development of climate change

initiatives which may affect their rights;

(d) Promote participation of indigenous self-governance structures, which

should be formally included in decision-making relating to international climate

change policies and finance measures;

(e) Devote resources to providing capacity-building for all stakeholders

relating to climate finance, in particular supporting long-term capacity-building that

enhances the transfer of technical knowledge;

(f) Support partnerships between government authorities and indigenous

peoples to encourage intercultural engagement in order to build trust and

collaboration to favour shared goals of climate change action;

(g) Ensure that gender considerations are adequately integrated into the

development of climate change adaptation and mitigation policies and projects;

(h) Provide funding for reparation, and notably for the Warsaw

International Mechanism for Loss and Damage Associated with Climate Change

Impacts.

123. Funds and donors should:

(a) Respect and support the rights of indigenous peoples as recognized in

international human rights law and enhance their ability to engage in climate change

activities by advocating for recognition of their collective and individual rights;

(b) Implement existing policies and safeguards and ensure their effective

dissemination as well as trainings for staff, especially for those involved in

implementation at the regional and national levels;

(c) Develop more dedicated direct funding mechanisms to support

indigenous peoples own initiatives for climate change and sustainable development;

(d) Support indigenous peoples to develop and implement their own

initiatives and exchange experiences with them. This will allow learning from

traditional indigenous measures and transfer of technical skills to engage indigenous

peoples in climate change management;

(e) As part of due diligence, improve monitoring and include compliance

with indigenous peoples rights in regular project, programme and policy

assessments;

(f) Promote awareness of grievance mechanisms for indigenous peoples in

the context of climate change projects and ensure that such mechanisms are culturally

appropriate.