Working to Protect the Seventh Generation: Indigenous
Peoples as Agents of Change
Elizabeth Ann Kronk Warner
October 14, 2014
“[T]he Indian plays much the same role in our
American society that the Jews played in
Germany. Like the miner’s canary, the Indian
marks the shifts from fresh air to poison gas in
our political atmosphere; and our treatment of
Indians, even more than our treatment of other
minorities, reflects the rise and fall in our
democratic faith.” – Felix Cohen (1953)
Presentation Overview
Introduction to Indigenous Peoples: Legal
Differences and Unique Considerations
•Legal Tools to Address Climate Change
•
•
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Litigation: ICC Petition and Kivalina
Using Domestic Law to Address Human Rights
Concerns
•
United States: Environmental Justice
•
China: Contracts
•
Canada: Idle No More
Indigenous People Around the World
The United Nations estimates there are over
370 million indigenous peoples in over 90
countries.
•Claudia Sobrevila of the World Bank has
estimated that indigenous peoples occupy
nearly 20 percent of world’s land surface, and
are stewards of 80 percent of planet’s
biodiversity.
•
Legal Differences between
Indigenous and Other Communities
•
•
Countries with some recognition of tribal sovereignty and/or
indigenous rights: Canada, United States, New Zealand, Ecuador
Right to Self-Determination (UNDRIP)
•
Article 3 – Right to Self Determination
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UNDRIP Article 8 states, “[i]ndigenous peoples and individuals have the right not
to be subjected to forced assimilation or destruction of their culture.”
•
UNDRIP Article 10 states “[i]ndigenous peoples shall not be forcibly removed
from their lands or territories.”
•
UNDRIP Article 26 states “[i]ndigenous peoples have the right to the lands,
territories and resources which they have traditionally owned, occupied or
otherwise used or acquired…States shall give legal recognition and protection to
these lands, territories and resources.”
•
Other Unique Considerations
•
•
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Connection to Land and Environment
Indigenous Environmental Knowledge
Proven Capacity for Adaptation
Litigation
Inuit Circumpolar Conference
•
•
Composed of over 150,000 Inuit people from
Canada, Greenland, Russia and the United
States
The Inuit petition to the Inter-American
Commission on Human Rights focused on
Inuit from Canada and United States,
because Greenland and Russia are not part of
the Inter-American regional grouping.
The Inuit Petition to the InterAmerican Commission
•
Petition filed with Inter-American Commission on Human Rights, which is
a regional human rights body established by the Organization of American
States.
•
Petition was filed against the United States
•
Claims
•
The United States contributes a substantial portion of the world’s greenhouse
gases but is not taking adequate policy steps to reduce those emissions
•
The resulting phenomenon of climate change has substantially negatively
impacted the Inuit
•
These impacts violate rights of the Inuit protected
under the Inter-American human rights system
Realities of the Inuit Petition
•
•
Petition was a watershed moment because it
reframed climate change as a human rights
issue rather than solely an environmental
problem.
Petitioners knew that there would be
difficulty with enforcement and used the
petition as a tool to promote dialogue.
Response of Inter-American
Commission
•
•
•
•
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Inter-American Commission responded on November 16, 2006
with a two-paragraph response.
The Commission determined that “the information provided
does not enable us to determine whether the alleged facts
would tend to characterize a violation of the rights protected
by the American Declaration.”
Inuit requested a hearing on the linkages between climate
change and human rights, which the Commission granted.
The hearing was held in March 2007.
Commission has indicated it will continue to focus on the rights
of indigenous people.
Postscript
•
•
Substantial increase in discussion of impacts
of climate change on Arctic indigenous
Key moment in using human rights as a
vehicle to explore remedies for climate
change
Native Village of Kivalina: An
Overview
•
•
Native Village of Kivalina and City of Kivalina
(collectively Kivalina) are the governing bodies of an
Inupiat village of approximately 400 people
is located on the tip of a six-mile barrier reef located
between the Chukchi Sea and Kivalina and Wulik
Rivers on the Northwest coast of Alaska, some seventy
miles north of the Arctic Circle
Map of Kivalina
Available at:
http://www.mnn.com/sites/default/files/user-39/kivalina-map_0.jpg
Picture of Kivalina
Available at:
http://scienceblogs.com/intersection/alaskan_island_of_kivalina_1.jpg
Picture of Kivalina
Available at:
http://www.noenergytomorrow.org/alaskan_island_of_kivalina_2.jpg
The Defendants
“Defendants contribute to global
warming through their emissions
of large quantities of greenhouse
gases. Defendants in this action
include many of the largest
emitters of greenhouse gases in
the United States. All Defendants
directly emit large quantities of
greenhouse gases and have done
so for many years. “ Native
Village of Kivalina and City of
Kivalina, Complaint for Damages,
Demand for Jury Trial, 1 (Feb. 26,
2008).
ExxonMobil Corporation, BP PLC, BP
America, Inc., BP Products North
America, Chevron Corp., Chevron
U.S.A., Inc., ConocoPhillips Comp.,
Royal Dutch Shell PLC, Shell Oil
Comp., Peabody Energy Corp., AES
Corp., American Electric Power
Comp., Inc., American Power
Services Corp., DTE Energy Comp.,
Duke Energy Corp., Dynegy
Holdings, Inc., Edison International,
MidAmerican Energy Holdings
Company, Mirant Corp., NRG
Energy, Pinnacle West Capital Corp.,
Reliant Energy, Inc., The Southern
Comp., and XCEL Energy, Inc.
The Injury
*Defendants are significant contributors of greenhouse gases
*Greenhouse gases trap atmospheric heat, causing climate
change
*Climate change is destroying Kivalina through the melting of
Arctic sea ice that formerly protected the village from winter
storms
*The melting sea ice results in increased storm damage and
massive erosion
The Injury continued
“Houses and building are in imminent danger of
falling into the sea as the village is battered by
storms and its ground crumbles from underneath it
… Critical infrastructure is imminently threatened
with permanent destruction. If the entire village is
not relocated soon, the village will be destroyed.”
Native Village of Kivalina and City of Kivalina,
Complaint for Damages, Demand for Jury Trial, 2
(Feb. 26, 2008).
The Claim
Federal Common Law – Public Nuisance
•
“Defendants’ emissions of carbon dioxide and other
greenhouse gases, by contributing to global warming,
constitute a substantial and unreasonable interference
with public rights, including, inter alia, the rights to
use and enjoy public and private property in Kivalina.”
Native Village of Kivalina and City of Kivalina,
Complaint for Damages, Demand for Jury Trial, 62
(Feb. 26, 2008).
The Claim
State
Civil
Law – Private and Public Nuisance
Conspiracy
Concert
of Action
Decision of the Northern District of California
Political Question Doctrine precludes consideration
•
Application of second Baker factor: “Plaintiffs’ global warming nuisance claim seeks to
impose liability and damages on a scale unlike any prior environmental pollution case
cited by Plaintiffs. Those cases do not provide guidance that would enable the Court to
reach a resolution of this case in any ‘reasoned’ manner.” Order Granting Defendants’
Motions to Dismiss for Lack of Subject Matter Jurisdiction, Case No. C 08-1138 SBA, 13
(N.D. Cal. Sept. 30, 2009).
•
Application of third Baker factor: “Plaintiffs ignore that the allocation of fault – and cost
– of global warming is a matter appropriately left for determination by the executive of
legislative branch in the first instance.” Id. at 15.
Plaintiffs lack Article III standing and are not entitled special solitude
Ninth Circuit and U.S. Supreme Court
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On March 10, 2010, Kivalina appealed the District Court’s
decision to the Ninth Circuit.
The Ninth Circuit upheld the District Court’s dismissal of the
plaintiffs’ claims based on federal displacement reasoning,
holding that the federal public nuisance claim was no longer
viable following the United States Supreme Court’s decision in
AEP v. Connecticut, 131 S.Ct. 2527 (2011). The Kivalina
plaintiffs filed a petition for rehearing en banc with the Ninth
Circuit, which the court denied on November 22, 2012.
The United States Supreme Court denied Kivalina’s
petition for a writ of certiorari on May 20, 2013.
Postscript
•
•
State-based public and private nuisance
claims
Successful atmospheric trust litigation
Using Domestic Law to Address Human Rights
Concerns
United States: Environmental
Justice
Environmental Justice
•Historical
connections to civil rights
movement
•Modern
environmental justice concerns are
those facing communities of color and poor
communities where the inequality faced by
these communities intensifies environmental
disadvantages.
•Development
of climate justice movement
Environmental Justice
Tribal communities are environmental justice
communities.
Environmental justice claims arising in Indian
country differ from environmental justice claims
arising elsewhere by virtue of the fact that they
arise in Indian country.
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Tribes pre-existed the formation of federal government
Sovereignty is inherent in tribal nations
Unique relationship between tribal nations and federal
government
Unique connection and status of land
Environmental Justice
•Consideration
of tribal governance is crucial to claims involving
environmental justice concerns of tribal communities
•Moreover, because of the special government-to-government
relationship that exists between American Indian tribes and the
federal government, “the federal government must be prepared
to defend vigorously the environmental self-determination that
tribes already have.” Sarah Krakoff, Tribal Sovereignty and
Environmental Justice in Justice and Natural Resources:
Concepts, Strategies, and Applications (Kathryn M. Mutz, Gary C.
Bryner, and Douglas S. Kenney eds.), 179 (Island Press, 2002).
•Loss of land is also critically important to tribes given the unique
relationship between tribes and land/the environment.
China: The Use of Contracts
Chinese Developments Related to
Climate Change
•PRC
signed the UNFCCC in June 1992.
• PRC’s Agenda 21 adopted a series of
policies and measurements to develop
renewable energy.
•Chinese government signed the Kyoto
Protocol in 1998 and ratified it in 2002.
Chinese Developments Related to
Climate Change
August 2007 -- A National Leading Group was formed
to Address Climate Change and Energy Conservation and
Premier Wen Jiabao was named director.
•August 27, 2009 -- The National People’s Congress
Committee released a decision calling on the PRC to
actively address climate change.
•
Indigenous Village of Pingwu: An
Overview
•Previously,
overwhelming majority of community’s income
from livestock
•Effects of Climate Change
•
•
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Increased temperature overall
Increased water temperature
Decreased precipitation/snowpack, leading to
decreased water availability
Map of Pingwu
Available at:
http://en.wikipedia.org/wiki/File:Location_of_Pingwu_within_Sichuan_(China).png
The Obstacle
Despite the numerous environmental laws in place and
actions taken at the national level to address climate
change, very little seems to be occurring at the local
level.
•This is likely because local governmental officials
supposedly fear enforcing environmental laws because it
may result in decreased financial growth.
•
A Legal Solution
Development of MOU between community members, government (owns the land)
and non-profit organization, Shan Shui, for conservation easements.
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Litigation is a difficult option in the PRC. It is unclear whether non-profit
organizations have standing to bring claims on behalf of their membership.
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There is no judicial independence. Therefore, the same fear affecting local
official’s enforcement of environmental laws may also result in judges’ fear to
enforce the same laws.
•Use the conservation easements for honey production.
•The non-profit provides the bees and training.
•Encourages community members to decrease their reliance on livestock, which has
dramatically increased the water quality.
•Honey production has been very profitable and the majority of the community
members begun to participate in honey production.
• Water quality has dramatically improved.
•
Canada: Idle No More
In Canada, it has been estimated that over the next
decade, more than 600 major resource planned projects
are proposed, representing over $650 billion in
investments. Of those projects proposed in western
Canada, it has been demonstrated that every oil and gas
project implicates at least one First Nations community.
•
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Idle No More has quickly become one of the largest Indigenous mass
movements in Canadian history – sparking hundreds of teach-ins,
rallies, and protests across Turtle Island and beyond. What began as a
series of teach-ins throughout Saskatchewan to protest impending
parliamentary bills that will erode Indigenous sovereignty and
environmental protections, has now changed the social and political
landscape of Canada.
Idle No More seeks to assert Indigenous inherent rights to
sovereignty and reinstitute traditional laws and Nation to Nation
Treaties by protecting the lands and waters from corporate
destruction. Each day that Indigenous rights are not honored or
fulfilled, inequality between Indigenous peoples and the settler
society grows.
Miigwetch!
Elizabeth Ann Kronk Warner
Associate Professor and Director, Tribal Law and
Government Center
University of Kansas School of Law
(785) 864-1139
elizabeth.kronk@ku.edu