The recognition of indigenous peoples’ rights in the context of area protection and management in the Arctic

Table of Contents

Chapter 1
Introduction
1.1 Background and aim of the research
1.2 Structure of the thesis and method of the research
1.3 Definitions
a) Area Protection and Management
b) Indigenous Peoples
c) Implementation

Chapter 2
Indigenous peoples and area protection
2.1 Different perspectives – the exclusionary approach
2.2 A shift in paradigm

Chapter 3
What are the most important indigenous peoples’ rights in relation to area protection and management?
3.1 Right to self-determination
3.2 Rights to lands, territories and resources
3.3 Right to Full and Effective Participation
3.4 Principle of Free, Prior and Informed Consent (FPIC)

Chapter 4
Recognition of indigenous peoples' rights in the human rights context
4.1 International Covenant on Civil and Political Rights (1966)
4.1.1 Right to self-determination
4.1.2 Rights to lands, territories and resources
4.1.3 The right to full and effective participation
4.1.4 Principle of Free, Prior and Informed Consent (FPIC)
4.2 Implementation of ICCPR indigenous peoples' rights in the context of area protection and management in national legislation
4.2.1 Finland
4.2.2 Norway
4.2.3 Russian Federation
4.2.4 Sweden

Chapter 5
Recognition of indigenous peoples' rights in the environmental protection context
5.1 International conservation policy
5.2 Regional conservation policy - Area protection and management in the Arctic
5. 3 The Convention on Biological Diversity (1992)
5.3.1 Indigenous peoples related provisions and programmes of work
5.3.2 The programme of work on protected areas and its relation to indigenous peoples
5.4 Implementation of CBD obligations in relation to indigenous peoples' rights in the context of area protection and management in national legislation and policies
5.4.1 Finland
5.4.1.1 The protected area system of Finland
5.4.1.2 Implementation of the CBD Programme of work on protected areas
5.4.2 Norway
5.4.2.1 The protected area system of Norway
5.4.2.2 Implementation of the CBD Programme of work on protected areas
5.4.3 Russian Federation
5.4.3.1 The protected area system of the Russian Federation
5.4.3.2 Implementation of the CBD Programme of work on protected areas
5.4.4 Sweden
5.4.4.1 The protected area system of Sweden
5.4.4.2 Implementation of the CBD Programme of work on protected areas

Chapter 6
Conclusion
6.1 Analysis of the implementation of indigenous peoples' rights
6.1.1 Human Rights context
6.1.2 Environmental Protection context
6. 2 Correlations between the implementation of indigenous peoples' rights in the one context and the other
6.3 Recommendations

Chapter 1

Introduction

1.1 Background and aim of the research

The issue of increased human activities in the context of area protection and management is of very high relevance, specifically with respect to the Arctic. Due to climate change, which continues to be widespread in the Arctic, and in some cases, dramatic,^[1] new prospects for economic development arise. Reduced sea ice, for example, is very likely to increase marine transport and access to resources.^[2] At the same time, the region is faced with numerous environmental challenges like those of projected shifting of vegetation zones and wide-ranging impacts on animal species' diversity, ranges, and distribution.^[3] On the base of these developments, it is very likely that interests of maximum resource extraction and energy production conflict with those of keeping the environment pristine. In consequence, “an extension of natural reserves/wilderness parks both on land and at sea might need to be considered as the price for letting local populations and incomers enjoy more unrestrained development in the remaining areas”^[4].

The Arctic is home to many indigenous peoples, including reindeer herders, hunters, fishermen and nomads. They all share one common feature: their dependency on a healthy environment to support their livelihoods and chosen ways of life.^[5] They are the descendants of peoples who followed the retreating icecap in Europe, spread out over northern Siberia and the Russian Far East, and crossed the Bering Strait some 4,000 years ago or more.^[6] Indigenous peoples are particularly impacted by climate change because of their cultural and physical dependence on the environment, and their frequent lack of access to the resources necessary to avoid the impacts of detrimental changes in their environment.^[7] In such a situation they might find themselves in the middle of those conflicting interests described above: on the one hand, defending their environment from external desirousness and from this point of view supporting the designation of certain areas as especially protected for their livelihoods, on the other hand, having an interest to participate in economic developments and to be engaged in the exploration of natural resources.^[8] Against this background, indigenous peoples' rights are of important significance in the context of area protection and management in the Arctic.

The rights of indigenous peoples on the one side, and area protection and management, on the other side, can be explored from many different perspectives. While much research exists in both contexts individually, only a very few authors deal with the interrelationship between them. Thus, the present thesis aims to combine both contexts by exploring the question to which extend indigenous peoples’ rights are recognized in the context of area protection and management. Due to the specific relevance for the Arctic^[9], particular, but not exclusive, emphasis is placed on the Sami^[10] as one of the indigenous peoples living in that region. For them, the above-mentioned conflict presents itself often from two sides: on the one hand, the Sami regard the wilderness, which national environmental policy wishes to preserve, as their own back yard: it is not untouched nature, but a cultural landscape created through centuries of Sami stewardship.^[11] From that point of view, they might be in favour of specific conservation plans for their traditional lands. On the other hand, those Sami people who are not involved in traditional economic activities, such as reindeer herding for example, regard area conservation plans as a threat to their livelihood and do strongly support extension plans for the industry in which they are involved.^[12] Sami homelands, today, are distributed among the territories of Finland, Norway, Russia and Sweden. Taking this as a point of departure, the present study will focus on the efforts of those four states in implementing Sami rights into their national systems. Hereby, the different forms of governments – Finland, Norway and Sweden as unitary states and Russia as a federation – will be taken into consideration as far as possible. Moreover, area protection and management is viewed from a terrestrial point of view; marine protected areas are not a subject of this study.

The thesis aims to answer the following central research question:

To which extent are indigenous peoples’ rights implemented in the context of area protection and management in the Arctic?

In order to answer this question, the following sub-questions will be addressed:

1. To what extent have indigenous peoples’ rights – and in particular those of the Sami people – been implemented both in the human rights and the environmental protection context?
2. How do both contexts (human rights and environmental protection) correspond with each other?
a. Do indigenous peoples' rights receive more attention in the context of human rights than in the context of environmental protection or vice versa?
b. Are there correlations and/or dependencies between the implementation of indigenous peoples’ right in the one context and the other?
3. How can the implementation of indigenous peoples' rights be strengthened in the context of area protection and management in the Arctic?

1.2 Structure of the thesis and method of the research

As an introduction, in the second chapter, the relationship between indigenous peoples and area protection is outlined in a historical and present context, pointing from an area of tension to a recent shift in paradigm. This discussion is based on the literature available on this subject.

Next, to create a foundation for a comparative approach, the indigenous peoples' rights most relevant in the context of area protection and management are identified and discussed (as a first step in this research; see chapter 3). This description is based on an evaluation of respective scholars' literature as well as of publications of relevant UN institutions. In view of the relevance for the subject of protected areas, the discussion focuses on the rights to self-determination; the right to lands, territories and resources and the right to full and effective participation as well as on the principle of free, prior and informed consent.

In a second step, the identified indigenous peoples' rights are outlined in the human rights context and in the environmental protection context. This discussion cannot be exhaustive: in view of the limited scope of this research, the study will focus, for each context, on one central international agreement:

- Human rights context: the International Covenant on Civil and Political Rights of 1966 (see chapter 4);
- Environmental protection context: the Convention on Biological Diversity (CBD) of 1992 (see chapter 5);

It will be explored whether and to what extent the identified rights most relevant in the context of area protection and management are recognized by the relevant agreement and whether and how these rights have been developed within the framework of the agreement. This analysis is primary based on the texts of the conventions, instruments of respective bodies, established under the agreement (e.g., the Concluding Observations, Decisions and General Comments of the Human Rights Committee) and on the decisions adopted by the Conference of the Parties (COPs) under the CBD). As for the CBD, the 2004 Programme of work on protected areas receives special attention. The thesis will describe how specific goals and targets aiming at the enhancement of indigenous peoples’ rights have been developed under this programme and whether and to what extent they have been implemented in the four national systems.

In a third step, attention focuses on the question of whether and to what extent the relevant obligations under the selected agreements – corresponding to the identified indigenous peoples' rights most relevant in the context of area protection and management – have been implemented by the four Arctic states. For this purpose, three different types of sources have been used:

a) a specific questionnaire to explore the implementation status has been developed and distributed in an initial step (see Appendix 1). Responses have been received from Norway and Sweden (see Appendices 2 and 3);
b) thematic and periodic national reports to both international agreements and
c) corresponding literature dealing with the implementation of indigenous peoples' rights in the context of area protection and management and related problems.

The findings on these implementation efforts have been integrated in chapter 4 for the human rights context and in chapter 5 for the environmental protection context.

The outcome of the comparative research is included in chapter 6. In a first step, the implementation status of indigenous peoples' rights in the human rights context and in the environmental protection context is compared among the four Arctic states. This is followed by a second step, where the implementation status of one context is confronted with that of the other context. To conclude, chapter 6 analyses the recognition of indigenous peoples' rights by comparing the status of implementation in both contexts individually, and by contrasting the implementation status of one context with the other. With this chapter the central research question of this thesis receives an answer. The chapter is finished with the formulation of some recommendations on how to strengthen indigenous peoples' rights in the context of area protection.

The majority of sources has been examined until the end of November 2009. National and thematic reports have been accessed until the 31st of December 2009. As regards the human rights context it should be noted that the latest national reports to the Human Rights Committee and its corresponding Concluding Observations originate partly from 2006 and 2007. This is particular the case for Finland and Norway which might lead to the possibility that more recent or actual developments in those countries have not been considered in this study.

The comparative approach that has been taken in this study differs in its purpose and character from most other comparative studies. Most of them investigate domestic systems, which have been developed over a long period of time – influenced by social, cultural and legal factors – in order to find solutions for particular problems that are identified at a domestic level. In this thesis, however, obligations of two international agreements, corresponding to indigenous peoples' rights, are the starting point, not a particular domestic problem or the domestic system of a selected country. From this perspective, the present thesis follows more a “top-down” instead of a “bottom-up” approach, although several domestic examples are mentioned to illustrate deficiencies in a more general picture. This limitation applies in particular to the analytical part at the end of the thesis where recommendations can be made only at a rather abstract level. It was, however, necessary, from the author’s point of view, to follow such an abstract approach in order to obtain a general picture of the status of implementation of indigenous peoples' rights in the context of area protection and management. Additional research at the national level, aiming at deepening the analysis of particular domestic problems and comparing them with other domestic systems in more detail, is certainly needed and has already been initiated.^[13]

1.3 Definitions

Before dealing with the questions outlined above, it is important to define three key terms: “area protection and management” (below, item a), “indigenous peoples” (item b) and “implementation” (item c). All of these are directly reflected by the topic of this thesis and of particular relevance to the conducted research. Since their meaning and interpretation can differ depending on the context in which these terms are used, the understanding in the framework of this thesis should be clarified first. This applies especially to the term of “indigenous peoples” for which no universally accepted legal definition exists and which is the subject of a controversial debate as far as the scope and the applicability of certain human rights are concerned.

a) Area Protection and Management

For the purpose of this work, a broad concept of ‘area protection and management’ is applied.

The World Conservation Union (IUCN) defines a protected area as:

“A clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values”^[14],

While this definition will serve as a point of departure, special emphasis is laid on the 'management-component' of area protection. Management in this context is not only

“assumes some active steps to conserve the natural (and possibly other) values for which the protected area was established”^[15],

but also indicates that

“Administration of protected areas is a practical issue important for the effectiveness of the protective regime established”^[16].

Moreover, the 'management-component' itself stands for the human implication of the term 'management' and illustrates the relationship of people to any kind of area protection, bridging the issue of area protection to the present topic of indigenous peoples.

b) Indigenous Peoples

The international community has not adopted a definition of indigenous peoples and the prevailing view today is that no formal universal definition is necessary for the recognition and protection of their rights.^[17] Although this might be the case in theory, a compact definition would have several advantages like helping “to clear out ersatz claimants, improve the goodwill of governments, give greater confidence to those defined as indigenous and improve precision in targeting programmes”.^[18]

Within the UN, a description formulated by the Special Rapporteur of the UN Sub-Commission for Human Rights, José Martinez Cobo (the so called Cobo-definition), is used as a guiding principle when identifying indigenous peoples.^[19] According to this definition:

“Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them.

They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.”^[20]

As stressed by Cobo, ‘historical continuity’ consists in the continuation for an extended period reaching into the present of one or more of the following factors:

- Occupation of ancestral lands, or at least of part of them;
- Common ancestry with the original occupants of those lands;
- Culture in general, or in specific manifestations […];
- Language […];
- Residence in cetain parts of the country, or in certain regions of the world;
- Other relevant factors”^[21].

The role of the group in responding to individual acts of self-identification is stressed. Cobo insists that: „On an individual basis, an indigenous person is one who belongs to these indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group)“^[22].

Furthermore, the International Labour Organization’s Convention No. 169 on Indigenous and Tribal Peoples (1989) contains a statement of coverage defining indigenous peoples and tribal peoples. Article 1 of the ILO Convention No. 169 defines the scope of application of the convention as follows:

“1. This Convention applies to:
a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special law or regulations.
b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.
3. The use of the term ‘peoples’ in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.”

As expressed by Henriksen, „the core elements that are important for the use of the term ‘indigenous peoples’ are (1) that there is another group than the indigenous people concerned which presently is the dominant group [power relationship] on traditional indigenous territories within an individual ountry or a geographical region/area; and (2) that the indigenous people concerned identifies itself as ‘indigenous’“.^[23]

From the point of view of international organizations and legal experts, the UN Working Group on Indigenous Populations’ Working paper on the concept of “indigenous people”^[24] lists the following factors that have been considered relevant to the understanding of the concept of “indigenous”:

- Priority in time, with respect to the occupation and use of a specific territory;
- The voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions;
- Self-identification, as well as recognition by other groups, or by State authorities, as a distinct collectivity; and
- An experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist.

As regards the Arctic, the Arctic Human Development Report^[25] emphasis in its definition the distress indigenous peoples have experienced in that region as well as the self-identification element by stating:

“Indigenous peoples are those peoples who were marginalized when the modern states were created and identify themselves as indigenous peoples. They are associated with specific territories to which they trace their histories. They exhibit one or more of the following characteristics:

- they speak a language that is different from that of the dominant group(s),
- they are being discriminated in the political system,
- they are being discriminated within the legal system,
- their cultures diverge from that of the remaining society,
- they often diverge from the mainstream society in their resource use by being hunters and gatherers, nomads, pastoralists, or swidden farmers,
- they consider themselves and are considered by others as different from the rest of the population.“^[26]

And finally, Henriksen points out that „ in the Arctic region the identification of indigenous peoples is widely decided through indigenous self-identification and processes leading to State recognition of their indigenous identity“^[27].

Are Indigenous Peoples to be regarded as ‘Peoples’?

The most decisive and contended question in this issue is the question whether indigenous peoples are to be regarded as ‘peoples’ with the right to self-determination.

Similar to the term ‘indigenous peoples’, there is no comprehensive definition of the term ‘peoples’ in international law.

In the United Nations’ practice, however, the so-called ‘Kirby definition’ is widely used; a description developed specifically for the purpose of identifying the holders of the right to self-determination by the UNESCO International Meeting of Experts for the Elucidation of the Concepts of rights of Peoples in 1989.^[28] According to this description, also called after its principal drafter, Justice Michael Kirby, identifies a people as:

“1. A group of individual human beings who enjoy some or all of the following common features:
a) Common historical tradition;
b) Racial or ethnic identity;
c) Cultural homogeneity;
d) Linguistic unity;
e) Religious or ideological affinity;
f) Territorial connection;
g) Common economic life;
2. The group must be of a certain number which need not be large but which must be more than a mere association of individuals within a State;
3. The group as a whole must have the will to be identified as a people or the consciousness of being a people – allowing that group or some members of such groups, through sharing the foregoing characteristics, may not have that will or consciousness, and possibly,
4. The group must have institutions or other means of expressing its common characteristics and will for identity”^[29].

As expressed by Henriksen, „the main substantive difference between the definitions of ‘indigenous peoples‘ and ‘peoples‘ respectively is the power relationship element in the ‘indigenous peoples‘ criteria. In other words a group other than the indigenous peoples concerned is the dominant group within an individual country or a geographical region/area. The indigenous peoples concerned may be dominant in their traditional territory, but exercise a little influence or power, if any, in national politics, and in the State.“^[30]

In state practice and legal theory, it is still disputed whether indigenous peoples enjoy the ‘full’ right of self-determination. Often a distinction is made between internal and external self-determination (as this will be described in more detail further below, when the right of self-determination is dealt with). At this point it should be emphazied that “the debate concerning indigenous peoples’ right to political self-determination is still characterised by fear among states that recognition of such a right will result in secession from established states.”^[31]

Thornberry, in this context, points out that „‘peoples‘ suggests a group dimension to claims of right, and a possible question on self-determination, which many governments prefer to avoid. [...] Whether a government representative tempers an intervention by placing an ‚s‘ after ‚people‘ may be regarded by indigenous as a sign that the government is for (‚s‘) or against (no ‚s‘) indigenous rights.^[32] Up to now, the question is still disputed by some Arctic States, as it is by many other States.^[33]

c) Implementation

Implementation, in general, “refers to all measures taken or instruments used – both at the international level and the domestic level – to fulfil the objectives of the international agreement”^[34]. For the purpose of this study, the term implementation, simultaneously used with incorporation, is used in a non-technical sense, covering e.g. the 'adoption' and the enactment of treaty specific legislation giving the provisions of a named treaty the status of domestic law.^[35]

Implementation or incorporation of indigenous law, in particular, is differently conducted by states. Levi distinguishes three forms of state practice: incorporation within common law, customary law, and self-government^[36]. While indigenous law incorporated within the common law is not quite recognized as law at all, but as a social situation which creates the kinds of facts which trigger the law of the wider society, more status is given to indigenous law, when that is incorporated as a separate system of customary law, parallel (or at least not entirely subordinate) to common law; and indigenous law is accorded the greatest status when self-government forms the foundation of the recognition of indigenous law, which implies that indigenous peoples have at least in principle been recognized as sovereign nations.^[37]

As regards indigenous peoples' rights to lands, territories and resources (LTR), which are of specific relevance in the context of area protection and management and which will be elaborated in more detail further below, it is important to mention, as stressed by Levy, that “Customary incorporation characteristically yields legal rights to use traditional lands as they have traditionally been used; that is, it generates usufruct rather than proprietary rights. Common law incorporation, on the other hand, characteristically generates stronger property rights in the form of collective freehold ownership; as far as the land of the state is concerned, indigenous people are free to use their land traditionally or otherwise and still retain it as their own land.”^[38]

As regards state practice, it is finally important to stress from these theoretical considerations, that most states use elements of more than one mode of incorporation with different emphasises^[39] ; and that “customary incorporation often takes place through a state’s constitution rather than through judicial recognition of a parallel system of law”.^[40]

When it comes to the Arctic, the four states of specific interest here also use different modes of incorporation. Norway, for example, takes a dualist approach in which ratification of an international convention does not automatically result in a change in domestic law; but where domestic rules will only change as a result of an enactment of the competent legislature.^[41]

Russia, on the other hand, takes a more 'monist' approach insofar as international customary law and international treaties to which Russia is a party are automatically a part of the domestic legal system and, in the event of a conflict between an international treaty and an ordinary domestic law, the treaty provision will prevail.^[42] Taking into account the federal structure of the Russian Federation^[43], one has further to consider that the legislative authority is divided between the federal jurisdiction and the currently 83 subjects of the federation^[44] and comprises areas of exclusive federal jurisdiction, joint or concurrent jurisdiction and residual jurisdiction lying with the subjects of the federation.^[45] Areas – like the protection of rights of national minorities; issues of possession, use and disposal of land, subsoil, water and other natural resources; delimitation of state property; protection of the environment and ensuring ecological safety; specially protected natural territories, protection of historical and cultural monuments; land, water, and forest legislation; legislation on subsoil and environmental protection and protection of traditional living habitat and of traditional way of life of small ethnic communities – lie in the joint jurisdiction of the Russian Federation and its subjects.^[46]

As regards the constitutional protection of indigenous peoples' rights, Finland, Norway and Russia each offer a certain degree of such protection:

The Finnish Constitution, as having the best statutory point of departure in respect to self-government^[47], contains a provision regarding the Sami‘s right to self-government or autonomy, which states that: „In their native region, the Sami have linguistic and cultural self-government, as provided by an Act“^[48].

The Constitution of Norway recognizes Sami rights to maintain and develop their language, culture and social life by stating: „ It is the responsibility of the authorities of the State to create conditions enabling the Sami people to preserve and develop its language, culture and way of life”^[49].

Russia also has a provision in the Constitution that provides protection for indigenous peoples. It states: „The Russian Federation guarantees the rights of small indigenous peoples in accordance with the generally accepted principles and standards of international law and international treaties endorsed by the Russian Federation“^[50].

Due to the federal structure of Russia it is important to stress, however, that the relevant region where Sami people live, the Murmansk region (also called Murmansk Oblast) has its own charter instead of a constitution.^[51] According to Article 21 of this Charter: the rights of national minorities living in the territory of the Murmansk region are guaranteed in accordance with the Constitution of Russia and federal laws; the authorities of Murmansk region contribute to the indigenous people of the Kola Peninsula - Sami - in the realization of their rights to preserve and develop their native language, national culture, traditions and customs; and in the historical Sami districts, representatives of other indigenous peoples of northern Russia have the rights to traditional use of environment and fisheries.^[52] Thus, Sami rights to language, culture, traditions and customs are specifically recognized at the regional level by the respective charter.

Finally, the Sami are recognised as indigenous peoples also in Sweden^[53], although their status itself is not addressed in the Swedish Constitution.^[54] “However, a state report aimed at clarifying questions related to the future organisation of the Sami Parliament has concluded that the question of special constitutional protection for the Sami should be reconsidered.”^[55]

Chapter 2

Indigenous peoples and area protection

There are m ore than 370 million indigenous people in some 90 countries worldwide ^[56] . They embody and nurture 80% of the world's cultural and biological diversity, and occupy 20% of the world's land surface. ^[57] As regards the Arctic, depending on the definition of the boundaries to the region, it is home to some 4 million inhabitants. Roughly a third of this total population are indigenous peoples, spread over numerous communities around the Arctic ^[58] . As a common trait, the indigenous proportion of different areas varies significantly, from the Inuit comprising 85 % of the population of Nunavut territory in Canada, to the Sami accounting for 2.5 % of the population in northern Scandinavia and the Kola Peninsula ^[59] .

In contrast, on the basis of national returns, the United Nations Environment Programme’s World Conservation Monitoring Centre (UNEP-WCMC) has recently calculated that there are more than 102,000 protected areas throughout the world. Taken together, they cover more than 11.5% of the terrestrial surface of the earth (though only 3.4% of the entire surface, since there are relatively few

marine protected areas).^[60] As regards the Arctic, almost 20 % of its land mass is judged to have protected area status in terms of IUCN categories.^[61]

Indigenous peoples and protected areas have much in common. As a matter of fact, “most protected areas in the world have people residing within them or dependent on them for their livelihoods, ...”.^[62] Additionally, “many of the areas that have been established as protected areas and many of those that are suitable for future addition to the protected area network are the homelands of indigenous peoples”^[63]. As regards the Arctic, it has to be stated that governments, when they began establishing protected areas in the region, often selected the same sites where indigenous peoples generally congregated because of their high biodiversity values and classified them as strict nature reserves or wildlife sanctuaries.^[64] In this context, the question comes up what are the interests of indigenous peoples on the one hand, and those behind area protection and management on the other, and how they relate to each other.

2.1 Different perspectives – the exclusionary approach

First of all, indigenous people feel often irritated being confronted with western philosophy of 'conservation', or as expressed by Janis B. Alcorn: “... there is no direct translation for the word "conservation" in any non-European language. It is generally translated as "respecting Nature," "taking care of things," or "doing things right." Indigenous peoples [thus] often find the Western idea of "conservation" as something to be separated from the rest of their activities as strange.”^[65]

Beside these irritations, the issue of nature protection for biodiversity and the material livelihoods of indigenous peoples are a matter of tension.

One reason for this, are the different philosophies/perspectives indigenous peoples and 'western societies' have on this matter. While indigenous relations to nature are based on unity between use and protection, implying that human use is necessary for effective protection^[66], western perspectives on area protection are characterized by a diverge between humankind and nature, or as expressed by Colchester: “The idea that humankind, or to be more accurate mankind, is apart from nature seems to be one that is deeply rooted in western civilization.”^[67]

Indigenous world views are characterized by their “holistic nature, which means that they cannot be easily compartmentalized into religious, economic, social, or other components”^[68]. This may also include a world view in subsistence, as contemporary illustrated by Gwich'in thinking:

“ Subsistence, narrowly defined, means to survive. To the Gwich’in, it means far more. Besides our spiritual relationship with God, the Creator of all that is, subsistence is the essence of the Gwich’in Nation. It is how we are sustained physically. It serves to support us economically and spiritually and is a key to our sustainability as a people. We are fed by plants and animals of the water, air, and land. Wood provides warmth and housing and the raw materials for tools and transportation devices, such as boats, snowshoes, and toboggans [runnerless sleds widely used by Native Americans]. ... Gwich’in identity is a picture of integration with the land and resources. We see ourselves as an integral part of the diversity of the landscape. We believe that we would not be whole if we were separated from this land. We also believe that this land would not be whole without our presence. Our well-being is linked closely with our ability to live on and adapt with the land. Our family and land-based bonds are strengthened, restored, and invigorated as we continue our subsistence lifestyle.”^[69]

From this citation it becomes also clear that indigenous peoples value land, flora, and fauna not only “for their survival but, more significantly, incorporated an intrinsic and spiritual value to nature. Nature was part of their cosmology and not something to be tamed.”^[70]

By contrast, western perspectives have to be seen in a colonial context where they were certainly affected by the thinking of early colonizers as described by Adams: “The idea that 'man' and nature were separate formed the world view of pioneers of imperial trade, and of the annexation of the tropics and the new worlds in Asia, the Americas and Australasia.”^[71] Moreover, “As the precursors of modern environmentalism took hold in the industrializing North towards the end of the 19th century, 'nature' came to be understood not purely as something distinct from society, but somehow in opposition to culture, the city and industry, to technology and human work. Nature was wild, unrestricted, magnificently unknown.”^[72]

The approach of excluding humankind from nature conservation was also taken when the first National Parks, the Yosemite State Park and the Yellowstone National Park, were established^[73]. In line with such an approach, Professor Bernard Grzimek, former president of the Frankfurt Zoological Society and director of the Frankfurt Zoo, who dominated conservation in the Serengeti like no one before^[74], argued: “A National Park must remain a primordial wilderness to be effective. No men, not even native ones, should live inside its borders”^[75]. Altogether, the exclusionary approach was widely established and as documented by Poirier and Ostergren “The literature demonstrates that native access to the resources of national parks throughout the world remains essentially prohibited.”^[76]

2.2 A shift in paradigm

With the intensification of human activities and the growing loss of biodiversity, on the one hand, and the increased awareness of indigenous peoples' rights in the international scenery, on the other hand, new relationships between indigenous peoples and stakeholders in area protection and management have emerged. Hence, to an increasing extent, the integration of indigenous peoples' rights into nature protection strategies has become a precondition for sustainability.

In this context, West and Brechin make an argument for bringing together protecting environmental integrity and biodiversity and, at the same time, protecting the rights of people who live in and around parks and reserves. In their view, “it is precisely the union of these two missions that is essential if both socioeconomic development and biological conservation are to become sustainable. Development for all people and all generations depends upon conservation. Likewise, the success of conservation itself depends upon how well its strategies serve people – especially those most directly affected by them, ... .”^[77]

In the same context, Cochran argues that “A new paradigm is emerging through which nature conservation and indigenous cultural survival are seen as intricately linked.”^[78] In a ground-breaking study by Stan Stevens, entitled ‘Conservation through Cultural Survival: Indigenous Peoples and Protected Areas’^[79] a new alliance between indigenous peoples and conservationists is represented.

The study contains success stories about protected areas in which indigenous peoples not only continue to live but also are integrally involved in the management of regional natural resources and the protected areas themselves.^[80] As stated by Stevens: “Many indigenous peoples have contributed to maintaining biological diversity and ecosystems in their territories in two important ways; firstly, by leaving the natural resource base and biodiversity of their lands relatively intact, and secondly, by fighting outsiders' efforts to claim to their territory or economically exploit its natural resources.^[81] As further argued by Stevens, “Indigenous peoples can make significant contributions to the conservation of biodiversity in protected areas through their local knowledge, environmentally sensitive land use practices, and resource management – which are grounded in strongly held of beliefs, values and conservation ethics and enforced through individual conscience, social pressure, and community-based resource management institutions- and commitments to defence of their territories and resources. At the same time, indigenous peoples can benefit in important ways from the establishment of new kinds of protected area partnerships in their homelands.”^[82]

Among others, he points out the following potential benefits to indigenous peoples from protected areas status for their homelands:

- “a means to gain greater recognition of their legal status as distinct peoples or nations;
- a means to obtain legal recognition of their ownership of traditional private and communal lands, individual and community access to natural resources, and other control over their traditional territory;
- enhanced national and international visibility, including greater concern for their human rights and welfare, and about threats to their cultural survival and the environmental integrity of their homeland;
- increased national and international support for the defence of homelands against encroachments by non indigenous settlers and commercial interests;
- alternative avenues to development other than the commoditization of natural resources and labour that otherwise is common in once remote regions that become incorporated into the global economy;
- possible direct income from national governments for agreement to designate territory as a protected area;
- greater legal, logistical, and financial support for grass-roots conservation and development efforts;
- control over access to sacred places, including the ability to declare them off-limits or to ban visitors during ceremonial activities;
- control over tourism development, including decisions about the nature and scale of tourism, access to tourist destinations, and the degree of outside entrepreneurial involvement;
- revenues from protected areas entrance fees and tourism operations licensing fees;
- preferential arrangements for employment in the protected area;
- employment and entrepreneurial opportunities from tourism development;
- rural development programs facilitated by the protected area itself or because of priority status for national and international development programs targeted at protected areas; and
- financial, political, and moral support for traditional conservation values, institutions, and leadership within indigenous communities”^[83]

Summarizing this new paradigm, it can be stated that “Indigenous peoples can make major contributions to environmental conservation and to protected area and management. At the same time, they often may find that protected areas for their lands can offer them substantial benefits without compromising their sovereignty, self-determination, cultural values, and conservation goals. The keys to this lie in the type of protected areas established, the specific kinds of protected area institutions and management practices that are implemented, sensitivity and good faith on all sides (and especially on the part of government and national and international NGO administrators, staff, and field personnel), and real recognition of indigenous peoples' land rights, customary tenure, resource management authority, and involvement in protected area planning and management.”^[84]

Due to this shift in paradigm, some progress has been made in recognizing ingenious peoples’ interests in the context of area protection and management. As observed by Poirier and Ostergren, who conducted a comparative research on indigenous peoples’ rights in the context of protected area systems in Australia, the United States and Russia, “governments are recognizing indigenous peoples and passing more laws to protect their existence, resources, and traditional cultures. […] After several centuries of exploitation and eradication of indigenous populations, each of the three nations [Australia, the United States, and Russia] has approached protected area / indigenous peoples relationships in a manner unique to its domestic political environment. [...] The current trend in all three countries is moving toward recognition of the role humans have played in the natural landscape.”^[85]

However, further investigation is needed. Up to now, there is little research done on the interlinkages between indigenous peoples’ rights and the issue of area protection and management, especially from a legal point of view. Therefore, the following text will focus on the recognition (in the broader sense of implementation as stated above) of those rights in the environmental protection context, starting with an outline of the most important legal instruments in relation to area protection and management and looking how they are reflected and implemented in the human rights context.

Chapter 3

What are the most important indigenous peoples’ rights in relation to area protection and management?

In relation to area protection and management, indigenous peoples’ rights are of special importance. According to a ‘Briefing Note on Protected Areas and Indigenous Peoples’ Rights: ‘Applicable International Legal Obligations’ given by Fergus MacKay^[86] on behalf of the Forest Peoples Programme the following ‘international obligations’ are stressed in relation to protected areas: the obligation to protect the right to self determination and the right to lands, territories and resources, to guarantee the principle of FPIC (which stands for ‘Free, Prior and Informed Consent’, and will be elaborated further below), to protect indigenous peoples against involuntary resettlement and to guarantee their right to restitution.^[87] As stated by MacKay at the end of his note, this emphasis “is not a comprehensive treatment of the issue and many more rights could be mentioned, particularly in relation to management regimes in protected areas”^[88]. Bearing that need for emphasis in mind, this study focuses mainly on the rights to self-determination and to land, territories and resources (LTR), both implying the procedural right to full and effective participation and the principle of free, prior and informed consent (FPIC), especially when it comes to lands and territories traditional owned by indigenous peoples.

Before exploring these rights and principles as a kind of measure and looking how they are recognized in the international human rights and environmental protection context, a brief overview of the main determinants and points of discussion of those rights will be given in the following.

3.1 Right to self-determination

First of all, there is no unanimously, generally accepted understanding of the right to self-determination. As already observed, “attempting to identify consistency in the application of self-determination is extraordinarily difficult. We must accept that in different situations self-determination has had different meanings”.^[89]

Historically regarded, the right to self-determination was for the first time proclaimed as a right of ‘all peoples’ by the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the UN General Assembly on 14 December 1960.^[90] At that time, “self-determination was viewed as a political claim, asserted to the ground of solidarity by all third world nations and supported by communist countries in order to expose the hypocrisy of Western world in its official discourse about equality and human rights”^[91]. As indicated by the abstentions by all of the ten colonial powers, States were at that time far from agreeing on the existence of a true right of self-determination.^[92]

In 1966, the right to self-determination for all peoples was inserted in Article 1 of the two International Covenants on Human Rights^[93], followed by the UN Friendly Relations Declarations of 1970, where the principles of self-determination and equal rights of peoples were accepted by almost consensus among all the member states.^[94]

However, to date “most states have up until recently been reluctant to recognise the right to self-determination of indigenous peoples”^[95]. This reluctance is mainly accompanied by governments' concerns that recognizing a group's right to self-determination may legitimate secession.^[96] At this point, it should be emphasised that there is disagreement as to whether international law establishes a positive right to secession in any manner at all.^[97] The right to secession “is only recognized in cases of military occupation and gross discrimination, including serious and repeated violations of human rights”^[98].

Furthermore, in theory, a distinction is often made between internal and external self-determination of the right to self-determination. Thereby, “... the internal aspect of the right to self-determination entails that a people shall have the right to make decisions in all matters relating to internal affairs which affect the way in which the people’s own societal life is developed and administered. This often includes all issues related to the economic, social and cultural aspects of society, such as the question of which social and health services are needed, which schools to have, the range of media available to the people, and how to develop these areas of society.”^[99] On the other hand, “The external dimension of the right to self-determination is, briefly put, the right for a people to determine its own relationship with the outside world.”^[100] However, the instruments adopted by the United Nations, establishing the right of self-determination, do not distinguish between its external and internal dimension; rather, this distinction has emerged by later invention of political talking and scholarly writing.^[101] As argued by Alfredsson, the addition of the internal aspect, intended to serve as a mere pacifier and as a way of avoiding external self-determination, might be misleading and may create false expectations because people are not going to get what they are bargaining for.^[102] Therefore, he pleads for a correct naming of the rights offered, instead of trying to advance their image by doubtful meaning.^[103]

Although the question whether indigenous peoples possess a right to self-determination is still disputed by states, the understanding of this right has doubtlessly developed through the practice of various UN bodies, the practice of the International Court of Justice (ICJ), by international law and other theory, as well as by pressure from indigenous peoples. In this context, the UN Declaration on the Rights of Indigenous Peoples should be emphasised as an important step in that direction. It states in its third article that

“Indigenous peoples have the right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.

Some scholars are going so far that this means “that the UN has now expressly recognized that indigenous peoples have the same right to self-determination as all other peoples.^[104] Also the UN Development Group in its 'Guidelines on Indigenous Peoples' Issues' from February 2008 states, with a reference to the Committee on the Elimination of Racial Discrimination's General Recommendation Number 21^[105], that “Indigenous peoples have the right to self-determination.”^[106]. It further underlines that “the right to self-determination may be expressed through:

- Autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. In other cases, indigenous peoples seek the conditions for self-management.
- Respect for the principle of free, prior and informed consent. This principle implies that there is an absence of coercion, intimidation or manipulation, that consent has been sought sufficiently in advance of any authorization or commencement of activities, that respect is shown for time requirements of indigenous consultation/consensus processes and that full and understandable information on the likely impact is provided.
- Full and effective participation of indigenous peoples at every stage of any action that may affect them direct or indirectly. The participation of indigenous peoples may be through their traditional authorities or a representative organization. This participation may also take the form of co-management.
- Consultation with the indigenous peoples concerned prior to any action that may affect them, direct or indirectly. Consultation ensures that their concerns and interests match the objectives of the activity or action that is planned.
- Formal recognition of indigenous peoples’ traditional institutions, internal justice and conflict-resolution systems, and ways of socio-political organization
- Recognition of the right of indigenous peoples to freely define and pursue their economic, social and cultural development.”^[107]

However, as stressed by Scott Forrest, a lack of shared understanding between key actors of what self-determination means and what constitutes an indigenous people remain^[108], and thus the acceptance and internationalisation of indigenous self-determination at the international level seems to be unlikely in the very next future.

3.2 Rights to lands, territories and resources

As already mentioned, m any protected areas worldwide are inhabited by indigenous peoples^[109]. These areas may encompass lands and territories traditionally owned by indigenous peoples. Therefore, their rights to lands, territories and resources play an essential role when a protected area is to be established in lands or territories that are traditionally owned or used by indigenous peoples.

Two aspects are important to emphasise when it comes to analysing indigenous peoples' rights to land, territories and resources.

First, we are again, similar to the striking differences between indigenous relations to nature and western perspectives on area protection, confronted with different perspectives. As expressed by E. Le Roy: “Whereas in civilian law rights of ownership are individual, cannot be forfeited or annulled and are absolute, exclusive and perpetual, in customary property law, land is non-movable property over which there are collective rights of ownership rendering it inalienable. Rights of ownership are temporary rights, limited and relative.”^[110] The collective component of ownership was addressed by the idea that “Land remained clan property for a long period. It was originally cultivated communally. Subsequently, cultivation and its fruits were temporarily divided between families.”^[111] In this historical context, group rights were not replaced by individual rights; instead, [...], there was coexistence between rights.”^[112] This means, in indigenous societies ownership existed in different forms in parallel: individually and collectively.

Furthermore, customary law of indigenous peoples is traditionally oral. It is expressed in various social practices of everyday life or through ideas underlying overall practices and activities. Customary rules are often activated in concrete situations without explanations or without references to existing 'laws'.^[113]

Secondly, indigenous peoples have a very special relationship to their land, territories and natural resources. As expressed by an Australian aboriginal person:

“No English words are good enough to give a sense of the links between an Aboriginal group and its homeland. Our word 'home' ... does not match the Aboriginal word that may mean 'camp', 'hearth', 'country', 'everlasting home', 'totem place', 'life source', 'spirit centre', and much else. Our word 'land' is too spare and meagre. We can scarcely use it except with economic overtones unless we happen to be poets.” ^[114]

This citation not only illustrates the strong relationship of indigenous peoples to their lands, but also indicates the different understanding of similar used terms like that of 'land'. For indigenous peoples, the relationship with the land and all the living things is often the core of their societies.^[115] In the view of José Martínez Cobo, it is essential to know and understand the deep and special relationship between indigenous peoples and their lands as basic to their existence as such and to all their beliefs, customs, traditions and culture. For indigenous peoples the land is not merely a possession and a means of production. Their land is not a commodity which can be acquired, but a material element to be enjoyed freely.^[116] As stressed by Henriksen: “It is difficult to separate the concept of indigenous peoples’ relationship with their lands, territories and natural resources from that of their cultural values and differences.”^[117]

[...]

---

^[1] For the sea ice cover the Arctic Report Card 2009 summarizes the following: “One of the most dramatic signals of the general Arctic-wide warming trend in recent years is the continued significant reduction in the extent of the summer sea ice cover and the decrease in the amount of relatively older, thicker ice. The extent of the 2009 summer sea ice cover was the third lowest value of the satellite record (beginning in 1979) and >25% below the 1979–2000 average.” See D. Perovich, R. Kwok, W. Meier, S. Nghiem and J. Richter-Menge: “Sea Ice Cover” , Colorado, 19 October 2009, in: Arctic Report Card 2009, p. 9

^[2] Arctic Climate Impact Assessment (ACIA) (2004), Policy Document, issued by the Fourth Arctic Council Ministerial Meeting, Reykjavík, 24 November 2004, p. 3

^[3] Ibid., p. 3

^[4] Alyson J.K Bailes (2009).: “Options for closer cooperation in the High North: What is needed?”, in: Sven G. Holtsmark and Brooke A. Smith-Windsor (eds.): “Security prospects in the High North: geostrategic thaw or freeze?”, NATO Defence College, Research Division, Rome, May 2009, p. 39

^[5] Hugo Ahlenius, Katherine Johnsen and Christian Nellemann (eds.) (2005): “Vital Arctic Graphics - People and global heritage on our last wild shores”, Norway: United Nations Publications, p. 4

^[6] Oran R, Young and Níels Einarsson (2004): “Introduction”, in: Arctic Human Development Report (AHDR), p. 22; According to Jared Diamond (1991): “The Third Chimpanzee: The Evolution and Future of the Human Animal”, these numbers might be different since people were able to cross the ice in North Canada and started to colonize America about 12,000 years ago.

^[7] Sheila Watt-Cloutier (2007): “Global Warming and Human Rights”, Center for International Environmental Law (CIEL), background paper for a testimony before the Inter-American Commission on Human Rights (IACHR) on March 5, 2007, available at: http://www.ciel.org/Climate/IACHR_Inuit_5Mar07.html

^[8] Although this does not necessarily reflect the general interest of indigenous peoples of the Arctic, joint ventures with the industry to explore oil and gas resources might lie in the interests of certain groups of indigenous peoples such as is illustrated by the case of the community of Fort McKay First Nation who considers a joint venture with Oilsands in Northern Alberta, Western Canada, as the key to its economic development. See Clint Westmann: “Assessing the impacts of Oilsands development on indigenous peoples in Alberta, Canada”, in Mark Nuttall and Kathrin Wessendorf: “Arctic Oil and Gas Development”, publication by the International Working Group on Indigenous Affairs (IWGIA), 2-3/2006, p. 32

^[9] The Arctic, as the totality of the areas north of the polar circle, has been chosen to contrast this region from other regions of the globe.

^[10] “The,Saami, or Lapps as others have called them, are the indigenous people of the Russian Kola Peninsula and northern Norway, Sweden and Finland. There is no reliable population census for the Saami people, and the matter of defining who is a Saami is problematical; nonetheless, according to current estimates, there are about 40,000 Saami in Norway, 17,000 in Sweden, 6,000 in Finland, and from 1,500 to 2,000 in Russia.” See Hugh Beach (2000): “The Saami”, in: Milton M. R. Freeman, (ed.): “Endangered Peoples of the Arctic” Westport, CT, USA: Greenwood Press, p. 223

^[11] Hugh Beach (2000), p. 238

^[12] Nuccio Mazzullo (2005): “Environmental Conservation and Local Interests in Finnish Lapland”, Conservation and Society, vol. 3, no. 2, p. 397

^[13] Anna Zachrisson from the University of Umeå, Sweden, mentioned in an e-mail to the author of 15 January 2010 that the launch of another project looking into indigenous peoples' issues in relation to protected area management and establishment in Sweden, Norway and Finland is being considered.

^[14] Nigel Dudley (ed.) (2008): “Guidelines for Applying Protected Area Management Categories”, Gland, Switzerland: IUCN, p. 8

^[15] Ibid., p. 8

^[16] W. M. Bush (1998): “Antarctica and International Law, A Collection of Inter-State and National Documents”, New York: Oceana Publications, Release 98-1, April 1998, Binder II, D.AT18101991.28, p. 84

^[17] United Nations Development Group: “Guidelines on Indigenous Peoples' Issues”, February 2008

^[18] Patrick Thornberry (2002): “Indigenous peoples and human rights”, Manchester: Manchester University Press, p. 57

^[19] John B. Henriksen (2006): “Oil and gas operations in Indigenous peoples lands and territories in the Arctic: A Human right perspective”, in: Rune S. Fjellheim and John B. Henriksen (eds.): “Oil and Gas Exploitation on Arctic Indigenous Peoples' Territories”, Galdu Cala, Journal of Indigenous Peoples' Rights, no. 4/2006, p. 25

^[20] Study of the problem of discrimination against indigenous populations (UN Doc. E/CN.4/Sub.2/1986/7/Add.4, paragraph 379)

^[21] Study of the problem of discrimination against indigenous populations (UN Doc. E/CN.4/Sub.2/1986/7,/Add.4, paragraph 380)

^[22] Study of the problem of discrimination against indigenous populations (UN Doc. E/CN.4/Sub.2/1986/7,/Add.4, paragraph 381)

^[23] John B. Henriksen (2006), p. 26

^[24] Working paper on the concept of "indigenous people" of the UN Working Group on Indigenous Populations (WGIP), E/CN.4/Sub.2/AC.4/1996/2

^[25] Arctic Human Development Report (AHDR) (2004), Akureyri: Stefansson Arctic Institute, available at: http://www.svs.is/AHDR/

^[26] Definition provided by Jens Dahl, Director of the International Work Group for Indigenous Affairs, Copenhagen, contained in Chapter 3of the ADHR: Csonka, Yvon, and Peter Schweitzer (2004): “Societies and Cultures: Change and Persistence”, in: Níels Einarsson, Joan Nymand Larsen, Annika Nilsson, and Oran R. Young (eds.) (2004): Arctic Human Development Report (AHDR), Akureyri: Stefansson Arctic Institute, p. 46

^[27] John B. Henriksen (2006), p. 26

^[28] Ibid., p. 26 (including supra note no. 5)

^[29] UNESCO, International Meeting of Experts on Further Study of the Concept of the Rights of Peoples: Final Report and Recommendations, UNESCO document SHS-89/CONF.602/7, pp. 7-8

^[30] John B. Henriksen (2006), p. 27

^[31] Láilá Susanne Vars (2008): “Political Aspects of the Sami's Right to Self-Determination”, in: John B. Henriksen (ed.): “Sami Self-Determination – Scope and Implementation”, Galdu Cala, Journal of Indigenous Peoples Rights, no. 2/2008, p. 66

^[32] Patrick Thornberry (2002), p. 41

^[33] John B. Henriksen ((2006), p. 27

^[34] Kees Bastmeijer (2002): “The Antarctic Environmental Protocol and its Domestic Legal Implementation”, The Hague: Kluwer Law International, p. 21, with a reference to Oran R. Young (1990): “Global Environmental Change and International Governance”, Millennium, vol. 19, no.3: “Implementation of international environmental regimes is not a technical process, routinely dependent on regime formation and formal agreement, but is the dynamic, political process of putting in place laws, activities, and institutions and organisational responses to meet the obligations of an agreement.”

^[35] Martin Scheinin (2000): “Domestic Implementation of International Human Rights Treaties: Nordic and Baltic Experiences”, in: Philip Alston and James Crawford (eds.): “The Future of UN Human Rights Treaty Monitoring”, Cambridge: Cambridge University Press, supra note 5, p. 230

^[36] Jacob T. Levy Levy (2000): “Three Modes of Incorporating Indigenous Law”, in Will Kymlicka and Wayne Norman (eds.): “Citizenship in Diverse Societies”, Oxford: Oxford University Press, p. 297

^[37] Ibid., pp. 297-298

^[38] Ibid., p. 298

^[39] Ibid., p. 298

^[40] Ibid., p. 299

^[41] See Ketil Fred Hansen and Nigel Bankes (2008): “Human rights and indigenous peoples in the Arctic: what are the implications for the oil and gas industry?”, in: Aslaug Mikkelsen and Oluf Langhelle (eds.): “Arctic oil and gas: sustainability at risk?”, London, New York: Routledge, p. 292, reference to the Norwegian Constitution Article 26

^[42] Ibid., p. 293, with a reference to Article 15 of the Russian Constitution (1993)

^[43] Laid down in Article 1 and specified in Chapter 3, Articles 65 – 79 of the Russian Constitution, an English translated version is available at: http://www.constitution.ru/en/10003000-01.htm

^[44] Figures correct as of 9 January 2008, see national newspaper: ‘Arguments and Facts’: Последние жертвы укрупнения?, 9 January 2008, available at: http://gazeta.aif.ru/online/aif/1418-1419/bel02_02

^[45] Articles 71 – 73 of the Russian Constitution

^[46] Article 72 of the Russian Federation

^[47] Láilá Susanne Vars (2008), p. 69

^[48] Section 121, subsection 4 of the Finnish Constitution

^[49] Article 110 a of the Norwegian Constitution

^[50] Article 69 of the Russian Constitution

^[51] According to Article 5 (1) of the Russian Constitution, the Russian Federation consists of republics, territories, regions, cities of federal importance, an autonomous region and autonomous areas. While each republic (state) has its own constitution and legislation, territories, regions, cities of federal importance, autonomous regions and autonomous areas have its charter and legislation, Article 5 (2) of the Russian Constitution.

^[52] Article 21 of the Charter of the Murmansk region (УСТАВ МУРМАНСКОЙ ОБЛАСТИ) of 26 November 1997, as lastly amended on 14 June 2001 [translation by the author]

^[53] John B. Henriksen (2008), p. 8

^[54] Láilá Susanne Vars (2008), p. 69

^[55] John B. Henriksen (2008), p. 8

^[56] United Nations Permanent Forum on Indigenous Issues (UNPFII),: “ABOUT UNPFII and a brief history of indigenous peoples and the international system ”, 13 September 2007, UNPFII-website: http://www.un.org/esa/socdev/unpfii/en/history.html

^[57] Study guide (2003): “The Rights of Indigenous Peoples”, University of Minnesota Human Rights Center, available at: http://www1.umn.edu/humanrts/edumat/studyguides/indigenous.html

^[58] Hugo Ahlenius (Editor -in-Chief), Katherine Johnsen, Christian Nellemann (eds.) (2005), p. 14

^[59] Ibid., p. 14

^[60] Grazia Borrini-Feyerabend, Ashish Kothari and Gonzalo Oviedo (2004): “Indigenous and Local Communities and Protected Areas: Towards Equity and Enhanced Conservation”, Gland, Switzerland and Cambridge, UK: IUCN, p. 1

^[61] CAFF Habitat Conservation Report No. 11 (2004): “CPAN Country Update Report 2004”, November 2004, see Foreword of Kent Wohl, at that time Chair of the CAFF Working Group

^[62] Grazia Borrini-Feyerabend, Ashish Kothari and Gonzalo Oviedo (2004), Introduction, p. xiv

^[63] Stan Stevens (1997): “Conservation through Cultural Survival: Indigenous Peoples and Protected Areas”, Washington D.C.: Island Press, p. 14

^[64] CAFF Habitat Conservation Report No. 10 (2002): „Protected Areas of the Arctic: Conserving a Full Range of Values“, Ottawa, 2002, pp. 23, 24

^[65] Janis B. Alcorn (1993): “Indigenous Peoples and Conservation”, Conservation Biology, vol. 7 no.2, p. 425

^[66] Jan Åge Riseth (2007): “An Indigenous Perspective on National Parks and Sámi Reindeer Management in Norway”, Geographical Research, vol. 45, no. 2, p. 177

^[67] Marcus Colchester (2003): “Salvaging Nature: Indigenous Peoples, Protected Areas and Biodiversity Conservation”, World Rainforest Movement and Forest Peoples Programme, revised edition, p. 1

^[68] Yvon Csonka and Peter Schweitzer (2004): “Societies and Cultures: Change and Persistence” in: Níels Einarsson, Joan Nymand Larsen, Annika Nilsson and Oran R. Young (eds.): Arctic Human Development Report (AHDR), p. 58

^[69] Craig L. Fleener, Gwich'in Council International in: Ibid., p. 58

^[70] Robert Poirier and David Ostergren (2002): “Evicting people from nature: Indigenous land rights and national parks in Australia, Russia and the United States”, Natural Resources Journal, vol. 42, p. 336

^[71] William M. Adams (2003): “Nature and the colonial mind”, in: Adams, W.M. and Mulligan, M. (eds): “Decolonizing Nature. Strategies for Conservation in a Post-colonial Era”, London: Earthscan, p. 22

^[72] Ibid., p. 33

^[73] Marcus Colchester (2003), p. 3

^[74] Jonathan S. Adams, and Thomas O. McShane (1996): “The Myth of Wild Africa, Conservation Without Illusion”, Berkeley, London: University of California Press, p. 50

^[75] Ibid., p. xvi; cited in: Marcus Colchester (2003), p. 3

^[76] Robert Poirier and David Ostergren (2002), p. 350; with reference to West and Brechin (1991): “Resident Peoples and National Parks”, Tucson: The University of Arizona Press, pp. 372-377

^[77] Patrick C. West and Steven R. Brechin (1991): “Resident Peoples and National Parks”, Tucson: The University of Arizona Press, Part One: Conceptual Overview, Introduction [emphasis added]

^[78] David M. Jr. Cochran, (1998): “Conservation through Cultural Survival: Indigenous Peoples and Protected Areas”, The Geographical Review, vol. 88, p. 143

^[79] Stan Stevens (1997)

^[80] Ibid., p. 4

^[81] Ibid., p. 2

^[82] Ibid., p. 265

^[83] Ibid, pp. 266, 267. Many of these possibilities, especially possibilities six and ten, have a chance to become realized only if indigenous peoples' rights to land and territories, as well as to the exploitation of resources become recognized by states. This matter will be discussed further below. However, at this point the relevance of the recognition of indigenous peoples' rights in the context of area protection and management should be emphasized.

^[84] Ibid., p. 263

^[85] Robert Poirier and David Ostergren (2002), pp. 331-332

^[86] Fergus MacKay is a US-trained lawyer holding the degree of Doctor of Jurisprudence. He is an experienced human rights lawyer, specialising in the rights of Indigenous peoples in international law. He has practiced law in the United States and Canada, with an emphasis on Indigenous law. For five years, he was Legal Advisor to the World Council of Indigenous Peoples, based in Ottawa, Canada, and represented the WCIP at the United Nations, Organisation of American States and other international fora, as well as working on Indigenous issues in countries in the Americas, Asia and the Pacific.

^[87] Fergus MacKay (2000): Briefing Note: “Protected Areas and Indigenous Peoples' Rights: 'Applicable International Legal Obligations'”, Forest Peoples Programme, pp. 1-2

^[88] Ibid., p. 3

^[89] Caroline E. Foster (2001): “Articulating Self-Determination in the Draft Declaration on the Rights of Indigenous Peoples”, European Journal of International Law, vol. 12, no. 1, p. 143

^[90] Paragraph 2 of the UN General Assembly Resolution 1514

^[91] Christian Tomuschat (1993): “Self-Determination in a Post-Colonial World” in: Christian Tomuschat (ed.): “Modern Law of Self-Determination”, Dordrecht: Kluwer Academic Publishers, p. 1

^[92] Ibid., p. 1

^[93] On one of them, the International Covenant on Civil and Political Rights (ICCPR) will be looked at, when the respective human rights instrument will be explored in detail.

^[94] According to Christian Tomuschat: „Only South Africa raised objections against the right of resistance connected with the right of self-determination as well as against the paragraph which requires that a State possess a government representing the whole people“, see supra note 2 in Christian Tomuschat (1993), p. 2

^[95] Láilá Susanne Vars (2008), p. 63

^[96] Caroline E. Foster (2001), p. 145

^[97] Láilá Susanne Vars (2008), p. 66, with a reference to Christian Tomuschat: “Secession and Self-Determination”, in Marcelo G. Cohen (ed.): “Secession: International Law Perspectives”, Cambridge: Cambridge University Press, pp. 23 ff.

^[98] Láilá Susanne Vars (2008), p. 74

^[99] Ibid., p. 65

^[100] Ibid., p. 65

^[101] Gudmundur Alfredsson (1993): “The Right of Self-Determination and Indigenous peoples”, in: Christian Tomuschat (ed.): “Modern Law of Self-Determination”, Dordrecht: Kluwer Academic Publishers, p. 50

^[102] Ibid., p. 53

^[103] Ibid., p. 54; Alfredsson argues in that way, because “the label 'internal self-determination' for autonomy and democracy does not in itself offer improvements while it can lead to disappointment. Political rights, political participation and autonomy certainly enhance equality for and dignity of indigenous peoples, but they fall short of granting the right of self-determination and the international law-makers are not willing to grant that right.”, see pp.53-54

^[104] See, among others, Matthias Ahren and Láilá Susanne Vars in: John B. Henriksen (2008)

^[105] The Committee on the Elimination of Racial Discrimination's General Recommendation Number 21: “The right to self-determination makes special references to the self-determination of indigenous peoples.”, available at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/dc598941c9e68a1a8025651e004d31d0?Opendocument

^[106] UN Development Group (2008): “Guidelines on Indigenous Peoples’ Issues”, p. 12, available at: http://www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdf

^[107] Ibid., p. 13

^[108] Forrest Scott (2006): “Indigenous self-determination in Finland: A case study in normative change”, Polar Record, vol. 42, no. 3, p. 237

^[109] See among others: Sue Stolton and Gonzalo Oviedo (2004): “Chapter 2.12.: Using the categories to support the needs and rights of traditional and indigenous peoples in protected areas”, in Kevin Bishop et al.: “Speaking a Common Language – the uses and performance of the IUCN System of Management Categories for Protected Areas”, Gland, Switzerland: IUCN, p. 132

^[110] Cited by Norbert Rouland (1994): “Legal Anthropology”, translated by Philippe G. Planel, London: The Athlone Press, p. 218

^[111] Ibid., p. 218

^[112] Ibid., pp. 218-219

^[113] Elina Helanda (1999): “Land and Sami traditional rights”, in: Tom G. Svensson (ed.): “On customary Law and the Sami Rights Process in Norway”, Proceedings from a Conference at the University of Tromsö, Senter for samiske studier. Universitetet i Tromsö, 8/99, pp. 143-144

^[114] W.E.H Stanner (1979): “White Man Got No Dreaming - Essays 1938-73”, Canberra: Canberra Australian University Press, p. 230

^[115] Erica-Irene A. Daes (2005): “Indigenous Peoples' Rights to Land and Natural Resources”, in: Nazila Ghanea and Alexandra Xanthaki (eds.): “Minorities, Peoples and Self-Determination”, p. 76

^[116] Study of the problem of discrimination against indigenous populations, UN document E/CN.4/Sub.2/1986/7,/Add.4, paragraphs 196-197

^[117] John B. Henriksen (2006), p. 28