International Indigenous Peoples Forum on Climate Change

[IIPFCC] Analysis of Cancun LAC Text

Safeguard Language and the Cancun AWG-LCA Text

Alberto Saldamando, General Counsel, International Indian Treaty Council

[This is a report prepared for the North American Indigenous Caucus on COP 16. We wanted to share it with the CC Caucus but the translation into Spanish took a while. I hope it still may be useful to our work.]

LCA TEXT:

Reference: Draft decision -/CP.16

Although there was some progress in Cancun, it is clear to many of us that the Cancun Agreements did not address our concerns. In my opinion there are no effective references to Indigenous rights or their protection in the Cancun agreement.

The Cancun Agreements set a framework for further discussion and detail. The intesessionals this year will play a significant role in providing detail for many of its elements leading up to the COP in South Africa. We need to begin again our struggle for effective safeguard language, particularly for REDD, as well as in other elements of the Cancun Agreement, including the Green Climate Fund, carbon markets as well as public financing, as all will affect Indigenous Peoples.

This analysis of the LCA Draft Decision -/CP,16 focuses on safeguard language (Annex I) and the overall policy objectives in the preamble and Part I. It is meant to encourage thinking about what language we can and should propose as these details are worked out. Few people will be able to attend the intersessionals, but I believe they will be critical. In my mind it is important for all of us to discuss and agree on our objectives and proposals, even via our listserve, before the intersessionals begin, so at least those who can attend can have the benefit of all of our thinking.

Much of this analysis and recommendations are based on Caucus positions achieved by consensus. I would ask that all feel free to comment on this analysis and other matters of importance.

1.      Annex I, The REDD Safeguards:

The REDD safeguard text remains the same as previous LCA drafts. Annex 1, Paragraph 2 still states that: “2.   When undertaking activities referred to in paragraph 70 of this decision, the following safeguards should be promoted and supported:”

Comment: “Shall” is not mandatory. “Should” is. “Promotion” is not “Recognized” or “Protected.” The Caucus text was “should be assured (guaranteed in Spanish).

Recommendation: The language should state that the safeguards shall be assured (or recognized and protected).

Annex I, Paragraph 2 (c), still calls 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 United Nations General Assembly has adopted the United Nations Declaration on the Rights of Indigenous Peoples “

Comment: although relevant international obligations are to be respected “relevant international obligations” has been interpreted in the past to include only those obligations that a State has actually committed to and ratified. This means, for example, that ILO 169 as a safeguard would apply only to states that have ratified or acceded to it. And the Declaration on the rights of indigenous peoples is not a legally binding instrument but a “declaration,” a non-binding moral obligation, a statement of aspiration.

“Noting” that the GA has adopted the Declaration does not make it binding as a safeguard. “Noting” only says that it exists. It is like a deer in the headlights: they see us but there is nothing to keep them from running us over.

In Bonn, as well as Copenhagen, the text proposed by Indigenous Peoples with regard to safeguard language and overall climate change activity were based on 3 principles:

1. Recognize and respect the rights of indigenous peoples and local communities, in particular their rights to lands, territories and all resources, in accordance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and other relevant international human rights instruments and obligations;

2. Ensure the full and effective participation of indigenous peoples and local communities, in accordance with the right to free prior and informed consent; and,

3. Recognize the fundamental role and contribution of indigenous peoples’ traditional knowledge, innovations and practices

In Copenhagen the Caucus made proposals during the negotiations, including: “Parties commit to respect international human rights standards that establish moral and legal obligations to protect and promote the full enjoyment of indigenous peoples’ rights in all matters related to climate change, including their rights to their lands, territories and resources, their traditional knowledge, and their free, prior and informed consent, consistent with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), as well as guaranteeing their full and effective participation in all climate change-related processes at the global, regional, national and local levels.”

I don’t know why or how the Caucus position on “moral and legal obligations” was changed to “legal obligations” in Cancun. The Xicaret technical meeting as far as I can tell did not suggest any change with regard to “obligations” v. “international human rights standards that establish moral and legal obligations.”

Recommendation: As the Caucus position in Bonn and Copenhagen has achieved a consensus within the Caucus, I would suggest we go back to “Respect for the knowledge and rights of indigenous peoples and members of local communities, by taking into account relevant international moral and legal obligations, national circumstances and laws, consistent with the United Nations Declaration on the Rights of Indigenous Peoples “

I would prefer:  Respect for the knowledge and rights of indigenous peoples and members of local communities, by taking into account relevant international standards, national circumstances and laws, consistent with the United Nations Declaration on the Rights of Indigenous Peoples.“ We did use this language at Copenhagen during the negotiations. And in my mind, we should not confuse the rights of Indigenous Peoples with rights of local communities. I’ve noticed that States, as well as some Environmental NGOs oppose the right of free, prior and informed consent as well as other Indigenous collective rights believing that everybody has these rights.

Keeping the phrase “consistent with…” assures that national laws are consistent with the Declaration.

The key point is to assure that the Declaration is a standard to be followed.

The comments on the LCA overall below and the discussion on “human rights” are also relevant to this discussion of the rights of local communities and Indigenous rights.

Annex I paragraph (d) of the Cancun Agreement safeguard language still only calls for, “The full and effective participation of relevant stakeholders, in particular, indigenous peoples and members of local communities, in actions referred to in paragraphs 70 and 72 of this decision;” The Caucus position of including the right of Free, Prior and Informed Consent as part of the full and effective participation is still missing.

Comment: By including the full and effective participation of both local communities and Indigenous Peoples, without more, in my opinion reduces the “participation” to a right of consultation without consent. They can tell us what they are doing, but not require free, prior or informed consent. I also think there is a problem with confusing the rights of members of local communities with the rights of Indigenous Peoples.

The Cancun Agreement refers to the participation of “members” of local communities recognizing that local communities do not have collective rights. There is support in the Caucus that the right of consent be applied to local communities but the right does not apply to local communities under international standards, and it causes confusion in the application of Indigenous rights.

Recommendation: I would suggest “The full and effective participation of relevant stakeholders, in particular, indigenous peoples, taking into account their right of free, prior and informed consent, and members of local communities, in actions referred to in paragraphs 70 and 72 of this decision;”

LCA Decision -/CP 16, Paragraphs 70 and 72: There are references to paragraphs 70 and 72 in other parts of the LCA text with regard to safeguard language.

Paragraph 72Requests” Parties when developing plans to address “drivers of deforestation and forest degradation, land tenure issues, forest governance issues, gender considerations and the safeguards identified in paragraph 2 of annex I…ensuring the full and effective participation of relevant stakeholders, inter alia, indigenous peoples and local communities.

Comment: “requests” does not require the States to do anything.

Recommendation: I would suggest striking the world “”Requests:” Parties when developing plans to address “drivers of deforestation and forest degradation, land tenure issues, forest governance issues, gender considerations and the safeguards identified in paragraph 2 of annex I… ensuring the full and effective participation of relevant stakeholders, inter alia, indigenous peoples and local communities.”

Paragraph 70. “forest mitigation actions include:  reducing emissions from deforestation and forest degradation, conservation of forest carbon stocks, sustainable management of forests, and enhancement of forest stocks,

2.      The LCA overall

We have long known that Indigenous Rights and the Declaration must be recognized and protected by the entire outcome document. The Annex 1 Safeguards only apply to REDD. We have also worked for language that protects our rights throughout the document and apply to all mitigation and adaptation measures, as well as financing, etc., in effect to all climate change activity.

The preamble paragraph 4, “notes” the Human Rights council resolution 10/4, stating that it “recognizes that the adverse effects of climate change have a range of direct and indirect implications for the effective enjoyment of human rights and that the effects of climate change will be felt most acutely by those segments of the population that are already vulnerable owing to geography, gender, age, indigenous or minority status and disability.”

Comment: In reading the actual text of HRC resolution 10/4, it really only called for studies on human rights and climate change but came to no conclusions in its operative paragraphs. It is in effect an empty reference with no standards that might be applied. HRC Resolution 10/4, as well as this preamble paragraph comes to no conclusions nor does it apply human or Indigenous rights to climate change activity.

This preamble paragraph also creates confusion between the rights of Indigenous Peoples and the rights of minorities. The word “status” is used in the North to differentiate between Indigenous Peoples that are “recognized” formally by the State and Indigenous Peoples not “recognized”.  Only those recognized as “status” Indians have Indigenous status and rights. Those Indigenous Peoples that are not recognized do not enjoy such status and may be considered “minorities.”

Minorities do not have, for example, rights to land, territories and natural resources or the right of consent. Only Indigenous Peoples as peoples have recognized collective rights. Minorities have no right to land, territories and resources. Indigenous Peoples do. This reference to “status” creates the distinction between Indigenous Peoples that are recognized by a States as being Indigenous Peoples, having that “status,” and indigenous peoples not having that “status” as minorities. The Declaration itself does not require State recognition.

Recommendation: I would recommend that we strike the phrase mentioning resolution 10/4; I also propose that we remove the confused reference to “status”. Preamble Paragraph 4 of the Cancun Agreement would read: “Recognizing” that the adverse effects of climate change have a range of direct and indirect implications for the effective enjoyment of human rights and the rights of Indigenous Peoples,” and strike the remaining language.

Or: “Recognizes that the adverse effects of climate change have a range of direct and indirect implications for the effective enjoyment of human rights and the rights of Indigenous peoples and that the effects of climate change will be felt most acutely by those segments of the population that are already vulnerable owing to geography, gender, age, minority status and disability, and by Indigenous Peoples.”

Part I Article 7 does recognize the “need to engage” and the importance of the effective participation of Indigenous Peoples among other vulnerable groups (women, youth, etc) in all aspects of climate change.

Comment: Although it could be said that his is a gain for us, again, the rights of Indigenous Peoples including Free, Prior and informed consent as well as ‘full” is left out of effective participation.

Recommendation: “the need to engage and the importance of the full and effective participation of Indigenous Peoples consistent with indigenous rights, among other vulnerable groups (women, youth, etc.) in all aspects of climate change.

Part I, Article 8, emphasizes that parties should “fully respect human rights in all climate change activity“.

Comment: The US, European Union, particularly the United Kingdom, as well as the United States and Canada have forcefully take the position at the Human Rights Council that Indigenous Peoples’ collective rights are not human rights. During the renewal of the Special Rapporteur on the situation of the human rights and fundamental Freedom of Indigenous People, to cite a recent example, these States objected to the “s” on peoples, saying that the rights of Indigenous Peoples are not Human rights. They forced a change in the name and content of the resolution renewing the mandate to “the Special Rapporteur on the rights of indigenous peoples. They recognized that the rights of Indigenous Peoples are rights nonetheless, but not Human rights.

The State Department also made this distinction in its statement of “Announcement of Support” for the UN Declaration. I quote it in full as it is important to note their position for purposes of the negotiations on safeguards:

“Moreover, the United States is committed to serving as a model in the international community in promoting and protecting the collective rights of indigenous peoples as well as the human rights of all individuals. The United States underlines its support for the Declaration’s recognition in the preamble that indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess certain additional, collective rights. The United States reads all of the provisions of the Declaration in light of this understanding of human rights and collective rights.”

That is to say that when human rights are mentioned it does not include the collective rights of Indigenous Peoples.

Recommendation: I would recommend that Part I, article 8 be amended: “.. parties should “fully respect” human rights and the rights of Indigenous Peoples in all climate change activity. “

Conclusion:

There are many sections within the Cancun Agreement that are also critical for Indigenous Peoples even though few of us have the resources to attend the intersessionals.

Part II, Adaptation: We should participate in these discussions to ensure that the modalities recognize and include Indigenous Peoples. Part III A, Mitigation opens the door for market mechanisms, calling for intersessional workshops on the “use of carbon credits from the market-based mechanisms and land use, land-use change and forestry activities.”

Annex II requires SBSTA to develop work plans and modalities surrounding all of the activities concerned with implementing REDD+, including for reporting on the safeguards in Annex I.  It is crucial that we be involved in this activity. We should ensure for example, that there be Monitoring, Evaluation and Verification (MEV) particularly on Indigenous Peoples.

Part IV A establishes the Green Climate Fund that should itself have safeguards.

And it is clear that we need minimal and specific references and recognition of Indigenous rights and the Declaration on the rights of Indigenous Peoples as an obligation.

It would be useful for us all to have the Caucus discuss these themes on the listserve. There are many with expertise and knowledge on these various issues and their thinking would benefit all.

28 February 2011

Alberto Saldamando, General Counsel

International Indian Treaty Council

2940 16th Street, Suite 305

San Francisco CA 94103-3688

Telephone: (415) 641-4482

Fax: (415) 641-1298

Skype: iitc-alberto

http://www.treatycouncil.org

IIPFCC opening statement on AWG-LCA 14, April 6, 2011

AWG-LCA - Intervention 

STATEMENT OF THE INTERNATIONAL INDIGENOUS PEOPLES’ FORUM ON CLIMATE CHANGE (IIPFCC)

April 5, 2011 Bangkok, Thailand

Read by: Nanta Mpaayei, Tebtebba Foundation

Representatives of Indigenous Peoples from all over the world attending this climate change talks collectively note with appreciation the reference made under the AWG-LCA of the Cancun Agreement on indigenous peoples. These are our long standing demands such as the respect for our rights including those contained in the United Nations Declaration on the Rights of Indigenous Peoples; the need for our full and effective participation; recognition and protection of our traditional knowledge as a basis for generating effective solutions to climate change. We also note the call under the REDD Plus Agreement that there is a need to address the drivers of deforestation land tenure issues and gender considerations.

The need to establish an information system which will look into how the environmental, social and governance safeguards are going to be addressed in all phases of REDD plus is crucial for us. We firmly believe that if the safeguards for REDD plus and the rights of indigenous peoples and local communities are not respected in REDD the chances for failure are great. We therefore urge all the Parties to the Convention who are REDD countries to work together with us to establish this information system at the global and national levels. We are pro-actively preparing the baselines and indicators which are indigenous and gender-sensitive and we will be submitting this to the SBSTA for their consideration in the forthcoming meetings. We call on the AWG-LCA or the SBSTA to convene at the earliest time possible expert workshops which will develop the guidance, guidelines and methodologies which will be used for these information systems.

We believe that real solutions to climate change must be based on upholding environmental integrity, an ecosystems approach, social equity and justice, and respect of human rights, including the rights of indigenous peoples.  We further call on the AWG-LCA to ensure the full and effective participation of indigenous peoples through;

a) Putting an indigenous representative as a member of the Boards of the Green Climate Fund and the Adaptation Fund Board.

b) Ensuring that REDD Plus Multistakeholder Bodies established at the national levels should include indigenous peoples’ representatives.

c) Including indigenous peoples’ experts as members of expert bodies established by the UNFCCC.

d) Obtaining the free ,prior and informed consent of indigenous peoples when climate change projects and policies which have a direct impact on them and their territories are being developed and implemented.

Thank you Mr. Chairperson.

IIPFCC opening statement on AWG-KP 16, April 5, 2011

INTERNATIONAL INDIGENOUS PEOPLES’ FORUM ON CLIMATE CHANGE (IIPFCC):

AWG-KP: Intervention PLENARY SESSION

April 5, 2011 Bangkok, Thailand

Read by: Pasang  Dolma Sherpa, Tebtebba Foundation

Mr. Chair,

Thanks for allowing us to make a brief intervention. Increasing GHG emissions is having tragic impacts on, us, indigenous peoples in terms of loss of lives, destruction of our ecosystems and ancestral territories and increasing food, water, habitat and resource insecurity.

We urgently appeal to the Annex 1 Countries to commit to increase their ambitions to cut their GHG emissions and to ensure that there is no gap between the first and second commitment period of KP. This means that any attempt to ignore the KP or transfer KP Commitments to a pledge and review process under the LCA should not be done at all costs. We heard the EU say at the first day that they can meet their commitments by 2020 and 2050, but we think they can even meet this earlier and even increase these targets higher. So we call on the EU not to condition their efforts on meeting their commitments on the efforts of others.

Obviously, there are countries like the USA which will not join the KP and who are insisting that a bottom-up and pledge and review approach is the way to go. We do not support this approach as this will not guarantee the goal of limiting the global temperature to 2 and 1.5 degrees Celsius. The USA and Annex 1 countries should not sacrifice the lives and rights of indigenous peoples and all vulnerable peoples to maintain their unsustainable production and consumption patterns which is the main cause of climate change.  

We call on Annex 1 countries to reach a decision of definitions, modalities, rules and guidelines relating to LULUCF activities. The emissions from LULUCF in Annex 1 countries should be accurately accounted for. The definition of forests under the LULUCF should also be revised not to include monocrop plantations which contribute to GHG emissions.

Finally, we urge the AWG-KP to address the socio-economic and environmental impacts of flexibility measures of the KP. The increasing number of hydroelectric dams under the CDM is causing displacements of indigenous peoples from their territories and biofuel plantations coming under the guise of reforestation and afforestation is leading to expropriation of indigenous lands. The recent nuclear accident in Japan should urge countries not to continue building nuclear power plants as the uranium used for these are also causing destruction to our territories.

In conclusion, we ask that our human rights as contained in the UN Declaration on the Rights of Indigenous Peoples be respected in all KP activities and the advice of the IIPFCC should be sought and considered.

Statement Of The International Indigenous Peoples’ Forum On Climate Change (IIPFCC)

High Level Segment

STATEMENT OF THE INTERNATIONAL INDIGENOUS PEOPLES’ FORUM ON CLIMATE CHANGE (IIPFCC)

COP 16 UNFCCC Cancun

10 December 2010

Read by: Stanley Kimaren Riamit, Tebtebba Foundation representing IIPFCC Caucus

Representatives of Indigenous Peoples from all over the world attending the this climate change conference collectively express our dismay and severe disappointment over the lack of political will and good faith negotiations for a legally-binding agreement that will truly and effectively combat climate change.

Read more: Statement Of The International Indigenous Peoples’ Forum On Climate Change (IIPFCC)

Indigenous Groups Announce Grave Concern on Possible Cancun Outcome

International Indigenous Peoples’ Forum on Climate Change (IIPFCC)

December 10, 2010 (Cancun) – As the 16th UN Climate Change Conference winds down, Indigenous Peoples in attendance from around the world announced their grave concern with the possible outcomes of the negotiations.

Read more: Indigenous Groups Announce Grave Concern on Possible Cancun Outcome

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