Rapporteur's Summary of the Deliberative Forum: Are Environmental NGOs Friends or Foes of Indigenous Peoples?

Colorado Environmental Law Journal Colorado Environmental Law Journal

Volume 13Number 1

Article 9

Rapporteur's Summary of the Deliberative Forum: Are Rapporteur's Summary of the Deliberative Forum: Are

Environmental NGOs Friends or Foes of Indigenous Peoples? Environmental NGOs Friends or Foes of Indigenous Peoples?

Patricia Thompson

Rapporteur's Summary of the Deliberative Forum: Are Environmental NGOs Friends or Foes of Indigenous Peoples?

Patricia Thompson

I. INTRODUCTION

The relationship between indigenous peoples and environmental nongovernmental organizations (NGOs) is shifting. Increasingly, international attention and law are focusing on the rights of indigenous peoples as not only different and distinct from that of environmental NGOs but of greater priority. This is not surprising as it is often an indigenous group that has "standing" under international law rather than the ecosystem being represented by the environmental group. Yet, both "parties" are stakeholders. In so many cases the most pristine undeveloped areas in the world coincide with populations of indigenous peoples. However, this "literal common ground" described by Professor David H. Getches below, may not be enough of an alignment of interests for the parties to

undertake legal actions together. Conservation is often not a top priority for an indigenous group; rather roads, healthcare, and survival top their list. Moreover, there is a fundamental difference in cultures. Winona LaDuke identifies this problem as the refusal to address the issue of consumption.I She explains that when it comes to consumption, "the culturally limited worldview of many urban environmentalists serves to drive a wedge between native and settler.",2

But there are times when an environmental NGO can provide the financial, technical, and legal resources needed to fight a potential developer. When mobilized in the fight against the international mining, oil, or timber industries, the environmental NGO can be a powerful force to In the Cartography of Governance Panel discussion, exreckon with. cerpted and highlighted below, we see that even giant oil conglomerates like Conoco have been criticized by their own industry trade journals for failing to engage environmental NGOs at project conception.3 International trade organizations and treaty negotiations are no exception. An environmental NGO representative for the World Wide Fund for Nature was recently quoted by WorldWatch as saying, "The WTO and other international institutions are learning that they have to talk to us at the beginning. If they come up with an agreement without doing this, NGOs can swing votes back home.",4

Does it also follow that an indigenous group, like the multinationals of the world, should be advised to consider carefully the might and will of the growing community of NGOs?5 Perhaps, with some conditions and reservations. There is of course the issue of the consent of the governed as described by Dean B. Suagee and Christopher T. Stearns, both attorneys and members of the Cherokee and Navajo Nations, respec-

tively.6 But in the examples presented during the panel discussion below, a case is made for the idea that the environmental NGO would be well advised to consider the leverage of the indigenous peoples. For it is the indigenous peoples' land claims that so often come first in a fight to protect an area from development. It is these claims that international courts are beginning to hear, an example being the case of the Awas Tingni of Nicaragua, where the court decided in favor of indigenous peoples.

Hurst Hannum, in his book Autonomy, Sovereignty, and Self Determination, points out that with the exception of treaties to "which Indian nations themselves were parties ... no multilateral treaty or agreement addressed the issue of indigenous rights per se prior to the adoption of International Labour Organisation (ILO) Convention No. 107 in 1957."7 Since then, the question of "rights" has picked up momentum, with the United Nations appointing special rapporteurs, sub-commissions, and working groups to study indigenous concerns. This has not gone smoothly since many indigenous groups object to not being able to participate more fully in the drafting of recommendations and declarations of various United Nations bodies.

It is interesting that Hannum also credits the NGO conferences of the late 1970s and early 1980s as providing a forum not just for NGOs but for indigenous peoples and their representatives as well. In his opinion, it was these activities and increased world attention which have resulted in what Hannum calls "the most significant development to date in the area of indigenous rights," the draft Declaration on the Rights of Indigenous Peoples.

II. FRAMING OF THE ISSUES BY PANEL CHAIRS

A. Charles Wilkinson9

The panel was opened by Professor Charles Wilkinson who described some of the first coalitions of native peoples and NGOs in the American Southwest. These coalitions came together initially to oppose the opening of new coalmines and coal-fired power plants. Professor Wilkinson admitted that the results of these early collaborative efforts were mixed; however it cannot be denied that the coalitions did succeed in preventing the largest proposed plant on the scenic Kaiparowits Plateau from being built.

In the mid-1970s, the battle against development of Kaiparowits Plateau was hard fought. This was a time when the allure of income for the area and jobs for the people must have been particularly tempting. Local unemployment was as high as fifteen percent.'° But unlike Professor Wilkinson's account of the collaborative efforts by indigenous peoples and NGOs, the news articles of the time describe the battle as one pitting the environmentalists against developers." Noticeably, the viewpoint of the local Indian communities is not reflected in the mainstream accounts of the time. But if we fast-forward twenty-five years to two months after the Cartography of Governance conference, as Professor Wilkinson squarely takes on the President's "energy task force" and the risk it poses to Kaiparowits Plateau, again he framed the issues as both Indian and environmental. 1 This time, however, the Denver Post reported the conflict, as Professor Wilkinson described it, without sweeping the Indian issues under the carpet.'3

At the conference Professor Wilkinson also reminded us of the progress being made in areas where native and environmental interests overlap as well as some of the persistent tensions. He stated, "native peoples are on the boards of most NGOs. Sometimes the interests coalesce. And sometimes they don't." The problems stem from the value differences

between the two groups; environmentalism means something different for NGOs and Native peoples. He further noted, "while both environmentalists and Indian cultures have profound relations with the natural world, philosophical differences abound. Preservation for preservation's sake is not part of the indigenous perspective." Wilkinson offered the example of the struggle to save the Pacific salmon as a way of seeing the difference in perspectives. Indians tend to think of the salmon in terms of the spiritual, subsistence, and commercial importance of fish in their lives. Moreover, the role of the fish in meeting the tribes' subsistence and commercial needs must be viewed in light of the fact that many tribal governments are dealing with some of the worst poverty and unemployment in the country.

4 B. David Getches1

Professor David Getches spoke next of his own experience working with mostly non-indigenous lawyers to represent tribes in the United States. He told the conference, "as we began, we were self conscious of the separation and cultural gap, but our clients needed lawyers. Now the organization is largely Native. However, it remains an issue because necessarily, the legal system and lawyers especially, often frame issues different than their indigenous clients."

Professor Getches then spoke at length about the intersection between environmental NGOs and indigenous peoples. He illustrated the "literal common ground" these groups share by using a world map prepared by the World Wildlife Fund (WWF).15 The map showed that of the 238 distinct ecosystems the WWF seeks to protect, nearly all of them substantially overlap with a map showing concentrations of distinct indigenous cultures. However, he admitted that despite this common ground, the value systems of the NGOs and indigenous peoples are very different. NGOs often bring more standardized, scientific approaches to conservation, while indigenous peoples do not necessarily describe conservation as among their foremost problems. Often indigenous peoples would prefer roads, healthcare, and education to conservation. This difference in value systems has lead to what Professor Getches described as a "mixed record."

Professor Getches used the experience of the Huaorani people of Ecuador in the late 1980s and early 1990s to demonstrate that even the needs of big business are well served by working proactively with indigenous people, whether the law requires it or not. In the case of the Huaorani people, the Ecuadorian government contracted with Conoco to allow for the exploration of oil.16 Some of the concession was on Huaorani lands and the resulting development of roads and pipelines was feared to result in the death of their people. The fears stemmed from the experiences of indigenous peoples at similar development sites in Brazil where there had been as much as a twenty percent decline in indigenous populations due to the introduction of disease and loss of habitat. As the plight of the Huaorani began to attract international attention over the span of several years, Conoco eventually convened a group of about thirty NGOs. At this time the Sierra Club filed an action with the InterAmerican Commission on Human Rights alleging that the development was equivalent to ethnocide. Despite the eventual approval of the project, even oil industry insiders criticized Conoco for failing to engage moderate NGOs at the outset. The lessons from this experience for indigenous communities, however, remain unclear. Ultimately, Conoco withdrew its proposal, and a lower profile company took over development of the area with "a less salient environmental commitment and a much trimmer compensation package to the Huaorani than Conoco had been discussing."'

Professor Getches then placed three questions or challenges in front of the panel. "Is there a right way," he asked. He pointed out that by even asking this question, we assume that joint work by indigenous peoples and environmental NGOs should occur, and that indigenous peoples have distinct rights. He then asked, "What should be done when goals or strategies diverge?" That is, can we assume that it is better to have more people on the case? Should indigenous organizations supplant the environmental NGOs? Finally, Professor Getches asked, "What should the terms of engagement be?" He noted that NGOs have the ability either to empower or disempower people since the very role of NGOs is to address power inequities. He wondered, since many NGOs act in a quasigovernmental role, whether they should be held to a corresponding increased duty of care? Professor Getches even suggested that absent rules of engagement, isn't an NGO just like a corporation?

C. Vawter Parker'

Responding to the framework laid down by Professors Wilkinson and Getches, Vawter Parker, speaking as Executive Director of Earthjustice (formerly the Sierra Club Legal Defense Fund), explained that although "we think of ourselves as a law firm, we really are an NGO." 19 Parker described the conflict between these two roles by saying that the law firm modality of his NGO requires Earthjustice to have written retainer agreements with their clients. But, he admitted that they also work "side-by-side" with indigenous people, characterizing Earthjustice as "more often friend, but sometimes foe [of indigenous peoples] depending on the issue." Reviewing some of the current activities of Earthjustice, Parker also drew a distinction between the tribe as a corporate entity and the populace of an area.

In some ways, Parker echoed the sentiments of Professors Wilkinson and Getches. In his view, when dealing with indigenous groups, a Indigenous groups must weigh broad array of needs is encountered. competing social, economic, and cultural concerns, whereas environmental groups tend to self-select and therefore are more focused on single issues. Parker stated "[Indigenous] groups are almost uniformly under stress. This produces a striving toward consensus around [several] major issues, .... and it may take longer for an indigenous peoples group to reach consensus because of the competing priorities."

Parker advised NGOs to do their homework, explaining that tribal sovereignty is almost always an issue and that environmental groups need to understand the "law of indigenous peoples, and where the group is trying to go with that. Spending time on this will avoid the major derailments and misunderstanding that so often arise." He also admonished NGOs never to speak for indigenous groups, "except on narrow legal issues."

Parker expanded on Professor Getches' example of the Huaorani people in Ecuador. He said that the case has become "almost biblical in nature. The lessons are still to be extracted." He became involved with the case when the WWF became concerned about oil exploration in the national park. He had been asked to look at potential legal hooks under American law to stop, slow, or guide the development in the park. At that point he had no human rights legal experience but he explored the case further. Parker began to have meetings with the Huaorani. He

18. Vawter (Buck) Parker is Executive Director of Earthjustice. about Earthjustice 19. Learn more http://www.earthjustice.org.

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wondered, "can you represent the rights of these people in a human rights context when you are really interested in the environmental issues?" Ultimately, Parker has decided that Earthjustice "did some good" that their intervention resulted in a in the case. He pointed out "maintaining [of the] park system boundaries... and the work in front of the InterAmerican Commission on Human Rights is now being cited in domestic law in Columbia and Australia for the idea that there is a right to a healthful environment."

D. Glen Morris2°

Professor Glen Morris, presented a wholly different point of view. He explained that while opportunities for cooperation can be found between indigenous people and environmental NGOs, he is "personally troubled by the actions of NGOs over the last few years." Using the example of the Yellow Thunder Camp21 occupation, Morris described how the local office of the environmental NGO, Greenpeace, supported the American Indian Movement by creating a buffer around the camp until an injunction was issued that prevented Federal marshals from invading. The use of the Yellow Thunder Camp of the early 1980s to open his discourse is significant. In Morris' view, the occupation of the South Dakota camp was an exercise of rights held under the 1868 Fort Laramie Treaty between the United States and the Sioux tribes. The treaty had guaranteed the Sioux the Black Hills, but was unilaterally abrogated by Congress only a few years later after gold was discovered there.

Professor Morris continued to weave history into his discussion of the potential for conflict between the indigenous agenda and the work of environmental NGOs. He believes strongly that "semantics can be a colonizing position." He described the tenor and flavor of the first indigenous peoples conference with the United Nations in 1977. The indigenous representatives were "not about accommodating states. They were not there to accommodate themselves to the UN process. Instead

they were there to kick the door in and say, why don't we have a seat at the table."

In his comments, Professor Morris effectively reminded conference attendees of events which occurred in the not so distant past. For example, at the October 1996 meeting of the United Nations Working Group on the Draft Declaration of the Rights of Indigenous Peoples, the, Indigenous Peoples Global Caucus moved for an adoption of the Draft Declaration without alterations and deletions by member states and a general discussion on the Declaration. Instead of open discussion, they were told that only governments are allowed to make proposals. In response, the Caucus walked out of the session.23

Professor Morris then argued that "pragmatism" is a "dirty word." He complained of the political pragmatism that has "leaked into the process so that the initial principals of freedom and self-determination that took indigenous peoples to the UN have shrunk away." He closed with comments about the recent rise in anti-Indian virulence and told the group that there are "lessons for us all to ponder."

A recent intellectual property dispute illustrates the danger of semantics and the potential for NGOs and politicians to co-opt the very words and phrases that Indians use. Apparently, a Caucasian woman recently copyrighted the word "wampum" for use in the name of her jewelry design business. According to one account, "She declared that the word is hers and no one, Iroquois Confederacy members included, has the right to use the word." 25 In addition to being reprehensible, her action would seem to conflict squarely with Article 12 of the UN Draft Declaration of the Rights of Indigenous Peoples. The Draft Declaration articulates the right for indigenous peoples to "maintain, protect, and develop the past, present, and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs ... as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken" without consent.26

Professor Anaya took a different approach from the other speakers. He focused on his experience working with and representing the Awas Tingni community on the east coast of Nicaragua. In recounting his experience he carefully set the stage, describing the "actors" which included the Awas Tingni, the state of Nicaragua, the multinational developers, the environmental NGOs, and the University of Iowa School of Law, where he was a professor at the time.

As Professor Anaya described it, "things were going well [in working to help the Awas Tingni obtain paper title to their land] when the government signed a secret agreement with the multinationals for concessions, [an agreement] that the Awas Tingni had no participation in." The law school then took the case for the Awas Tingni and the World Wildlife Fund (WWF), one of the NGOs involved in the dispute, agreed to foot the bill. The WWF was also assisting in mapping the Awas Tingni's territory as a necessary step in using proper titles. The law school confronted the government about the lack of Awas Tingni participation and it became clear that litigation would ensue. About this time the WWF began to get cold feet about supporting complex litigation in a contentious atmosphere because it was concerned that pushing too hard would threaten other projects in Nicaragua.

Due to this divergence of priorities and understandings it became clear that the law school's attorney-client relationship with the indigenous community would be at odds with the WWF's long term goal of "sustainable development" in Nicaragua, and as Anaya put it, "the alignment of interests evaporated." The University of Iowa School of Law pushed on with their litigation strategy planning to put the matter in front of the InterAmerican Commission on Human Rights (an arm of the Organization of American States). This strategy was somewhat novel, in that the Court of Human Rights had traditionally focused more on torture and disappearances.

Then another actor entered the stage. The Indian Law Resources 28 Center agreed to fund the litigation. But as Professor Anaya explained, this group had its own agenda in that it did not want to focus on one indigenous community. The government of Nicaragua, used this to their advantage by characterizing the dispute as infringing on other communi-

ties, which introduced mediation among the other communities as an additional function of the project. The level of complexity in the case kept growing.

The InterAmerican Commission on Human Rights began investigating the dispute in 1996. Attempts at mediation, diplomacy, and amicable settlements failed. Meanwhile, the government continued to allow forest prepatory work to continue and even commence. Eventually, the Commission found that absent physical harm to individuals there was a triable human rights issue and imposed, as Anaya explained wryly, "their ultimate sanction-they published their report." Despite the ineffective sanction imposed by the Commission, it did submit the case to the InterAmerican Court of Human Rights, which has the authority to issue binding decisions and remedies. Interestingly though, it is the Commission and not the Awas Tingni that has standing in front of this body. At the time of the conference, the decision had not yet been handed down. Regardless of the ruling, Professor Anaya still felt positive about the outcome because the government of Nicaragua had cancelled the concession and the World Bank is now conditioning grant packages to Nicaragua on plans to regularize land tenancy, thereby favoring indigenous peoples. Professor Anaya summed up his experiences saying: "Indigenous peoples need local expertise so they can pursue their own claims. Short of that, NGOs need to be conscious of their need for independent agendas. Major funders need to take a leap of faith."29

III. CONCLUSION

The speakers on this panel were very passionate and unfortunately went over time, precluding a question and answer period. In the opinion of this rapporteur, a clear case was made for creating funding mechanisms that do not hold indigenous peoples hostage to their own dire need. The power imbalances are already so great between indigenous communities, state actors, and well meaning but entrenched NGOs, that to promise funding, and then yank it away midstream when an indigenous community fails to conform to the NGO's agenda, is an improper exercise of an environmental NGOs power. As Professor Getches suggested, these

organizations are often acting in a quasi-governmental function. Correspondingly, there should be an increased duty of care. Perhaps in future years we will see environmental NGOs step back from their roles as advocates for indigenous communities, and move instead to a support role providing information and technical resources in order to avoid these conflicts of interest.

--- FOOTNOTES ---

Part of the Environmental Law Commons

* Patricia Thompson researches and speaks on energy information technologies and

metering for Platts, a division of McGraw-Hill. Prior to joining McGraw-Hill, Patricia worked as a consulting geologist conducting investigations for industrial clients to determine the fate and transport of hazardous materials released into the environment. She also has served as a researcher for the Natural Resources Law Center evaluating federal regulations governing the valuation of oil and gas produced on federal lands. She holds a B.S. in geology from the University of California at Santa Cruz and a J.D. from the University of Colorado at Boulder, where she was the Editor-in-Chief of the Colorado Journal of International Environmental Law and Policy. She has published pieces on a variety of topics, industrial energy consumption and demographics, energy contracts, climate change, and indigenous peoples' rights. Opinions in this paper are those of the author and should not be attributed to Platts or McGraw-Hill.

including

1. Winona LaDuke, Traditonal Ecological Knowledge and Environmental Futures,

5 COLO. J. INT'L ENVTL. L. & POL'Y 127, 139 (1994).

2. Id. 3. See Robert Wasserstrom & Susan Reider, On Environmental Stakeholders, OIL &

GAS J., AUG. 18, 1997, at 23.

4. Curtis Runyan, Action on the Front Lines, WORLDWATCH, Nov.-Dec. 1999, at

12.

5. See HILARY FRENCH, VANISHING BORDERS: PROTECTING THE PLANET IN THE AGE

OF GLOBALIZATION 164 (2000).

There are now tens of thousands of environmentally related NGOs, most of which have been formed since the 1980s. Growth has been particularly rapid in many parts of the developing world.... The number of NGOs working across international borders soared during the last century, climbing from just 176 in 1909 to more than 23,000 in 1998.

6. See Dean B. Suagee & Christopher T. Stearns, Indigenous Self-Government, Environmental Protection, and the Consent of the Governed, 5 COLO. J. INT'L ENVTL. L. & POL'Y 59, 99 (1994).

7. HURST HANNUM, AUTONOMY, SOVEREIGNTY, AND SELF-DETERMINATION 76

(1996).

8. Id. at 85.

9. Charles Wilkinson is the Moses Lasky Professor of Law and Distinguished Professor at the University of Colorado School of Law. His primary specialties are federal public land law and Indian law.

10. John L. Dotson, Jr., Duel in the Sun, NEWSWEEK, Oct. 27, 1975, at 10. 11. See, e.g., The Power-Plant War On a Utah Plateau, Bus. WEEK, Jan. 19, 1976,

at 22; Dotson, supra note 10, at 10.

12. See Charles Wilkinson, Should We Embark On Another Big Buildup?, DENVER

POST, June 10, 2001, at J4.

13. Id.

14. David Getches is the Raphael J. Moses Professor of Natural Resources at the University of Colorado School of Law. He teaches and writes on water law, public land law, environmental law, and Indian law.

15. Learn more about World Wildlife Fund by visiting

their web site at

http://www.worldwildlife.org.

16. See Wasserstrom & Reider, supra note 3, at 23. 17. James K. Sebenius & Hannah C. Riley, Stakeholder Negotiations Over Third

World Natural Resource Projects, 3 CULTURAL SURVIVAL Q. 39 (1995).

20. Glen Morris is an Associate Professor of Political Science at the University of

Colorado at Denver.

21. See Leon Daniel, Indian Militants Plan Anniversary March, Say Their Lives No Better a Decade Later, UPI, Feb. 22, 1983, available at LEXIS, All Sources, News. The Yellow Thunder Camp was named for Raymond Yellow Thunder, a Sioux Indian who AIM claims was beaten to death in 1972 "by white racists." Id. See also David F. Salisbury, Small Sioux Band Still 'Occupying' Black Hills Area, CHRISTIAN SCl. MONITOR, Mar. 2, 1982, at 9; Chet Brokaw, Government Files Suit to Stop Occupation, ASSOCIATED PRESS, Sept. 9 1981, available at LEXIS, All Sources, News.

22. See Salisbury, supra note 21, at 9.

23. John H. Stevens, Indigenous Rights Watch: United Nations Gridlock Over Na-

tive Rights, NATIVE AMERICAS, Winter 1996, at 11.

24. Patricia Locke, Cultural and Intellectual Property Rights, NEWS FROM INDIAN COUNTRY, Jan. 15, 2001, at 16A, available at Ethnic NewsWatch 041ICMY 058 000006.

25. Id. 26. Id.

E. James Anaya27

27. S. James Anaya is the Samuel M. Fegtly Professor of Law at the University of Arizona. He teaches and writes in the areas of international law and organizations, human rights, and issues concerning indigenous peoples.

28. Learn more about the Indian Law Resource Center by visiting their web site at

http://www.indianlaw.org.

29. Since Professor Anaya's presentation at the Cartography of Governance conference, the Court decided the case on August 31, 2001 and released its ruling on September 17, 2001. Under the ruling, which is binding on Nicaragua, "the government must demarcate and title the community's land, reform national legislation to conform with the American Convention on Human Rights, and pay $50,000 US in compensation, as well as $30,000 in legal costs." Celeste Mackenzie, Ruling in Costa Rica to Influence Native Land Claims, OTrOWA CITIZEN, Sept. 24, 2001, at A10.