The international climate change regulatory framework in relation to indigenous peoples’ lands

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AF instruments and indigenous peoples

In addition to recognising the need to operate the AF expeditiously, further guidance is provided in the decisions made at the CMP meeting in Montreal, Canada in 2005,182 which include that the AF shall function under and be accountable to the CMP and that its operation shall be country-driven, separate from other sources of funding and utilise „a learning-by-doing approach‟.183 More specific guidance was decided in Nairobi, Kenya in December 2006 as including, transparency and openness of governance and accessibility to adaptation activities at the „national, regional and community level activities‟.184 In particular, it was decided that priority will be given to projects, taking into account needs as expressed in national communications and national adaptation programmes of action.
The AFB is tasked with the functions of developing specific operational policies and guidelines,186 and rules of procedures.187 In the 4th session of the CMP held in Poznan, the developed Strategic Priorities, Policies and Guidelines of the Adaptation Fund (Strategic Guidelines), Operational Policies and Guidelines for Parties to Access Resources from the Adaptation Fund (Operational Guidelines) and the Rules of Procedures of the Adapatation Fund (Rules of Procedures) were adopted.188 The adopting decision requests the AFB to start the processing of proposal for funding,189 and to inform parties of the Strategic Guidelines and Rules of Procedures.190 According to the Strategic Guidelines, the submission of project proposals can be done directly by parties including the implementing entity elected by governments to implement projects.191 This decision indicates that observers at AFB meetings may be representative of national or international, governmental or non-governmental and qualified in a field related to the work of the Fund.192 The Operational Guidelines enunciate various aspects of the AF including project or programme requirement, endorsement by country, financing windows dealing with direct and indirect access, eligibility criteria, accreditation of implementing entities, fiduciary Standards, project cycle, and dispute settlement.193 More recently, the AFB has been requested to continue the encouragement of access to funding through its direct access modality.
Being an emerging funding mechanism, the participation of indigenous peoples in the AF is just unfolding. Their participation featured substantially at the 21st meeting of the AFB which focused on the codification of environmental and social safeguards for funds195 and stemmed from the realisation that the AFB lacks a policy document on environmental and social safeguards in the application of the fund.196 In preparation for the meeting, it was directed that the secretariat should take into consideration existing safeguards in comparable programmes and provide an overview of safeguards that should apply to the AF.197 It was highlighted at the meeting that entities receiving the AF funding must identify and manage the environmental and social risks associated with their activities.198 This can be achieved by assessing potential environmental and social harms against vulnerable groups including indigenous peoples and the implementation of steps to avoid, minimise or mitigate those harms.
Examples of existing safeguards of signifance to indigenous peoples which were highlighted at the 21st meeting can be found in the review criteria of Operational Guidelines.200 The review criteria largely aims to ensure that adaptation projects and programmes yield concrete benefits for vulnerable groups. For instance, a critical question which guides the AFB in reviewing projects for approval is whether the project or programme will deliver economic, social and environmental benefits to vulnerable communities which, arguably, include indigenous peoples.201 Also, although the Strategic Guidelines do not expressly mention the word „indigenous peoples‟, there are provisions which contemplate that the concerns of indigenous peoples may not be ignored in AF projects, including provisions which urge the AFB, in assessing projects and programmes, to give particular attention to national communications and NAPA,202 the „Economic, social and environmental benefits from the projects‟,203 arrangements for monitoring and evaluation and impact assessment,204 the level of vulnerability,205 access to the fund in a balanced and equitable manner,206 as well as the capacity to adapt to the adverse effects of climate change.
More particularly, specific review criteria that include provisions for environmental and social safeguards, are described in the document titled „Instructions for Preparing a Request for Project or Programme Funding from The Adaptation Fund‟ (Request Instructions).208 There are questions which, if appropriately and genuinely responded to by the implementing party, can address the plight of indigenous peoples. These questions reinforce the aims of the Strategic Guidelines, as can be said of the questions calling for a description of the „economic, social and environmental benefits, with particular reference to the most vulnerable communities, and vulnerable groups within communities‟ a well as a description of how the project is consistent with national communications and NAPA. There are other questions in the Request Instructions which urge project applicants to describe the process of consultation, supply the list of stakeholders involved in the consultation process, and the vulnerable groups, including gender considerations.

The International regulatory framework and mitigation

Mitigation refers to human intervention to reduce the sources or enhance the sinks of greenhouse gases.209 Mitigation is crucial in that it is more beneficial for the global environment to promote mitigation, particularly prevention of deforestation.210 Under the UNFCCC and the Kyoto Protocol, the pillar instruments of climate change, developed countries have obligations to implement mitigation activities, particularly in developing and least developing countries. This obligation is legally founded in the UNFCCC preamble which requires developed countries to:
[t]ake immediate action in a flexible manner on the basis of clear priorities, as a first step towards comprehensive response strategies at the global, national and, where agreed, regional levels that take into account all greenhouse gases, with due consideration of their relative contributions to the enhancement of the greenhouse effect.
According to the Kyoto Protocol, developed countries included as Annex I Parties of the UNFCCC have the obligation to „implement policies and measures‟. To that end, all parties to the UNFCCC, subject to the principle of common but differentiated responsibility, are enjoined to do the following:
[f]ormulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, and measures to facilitate adequate adaptation to climate change. The references to „emissions by sources‟ and „removal by sinks‟ set out the basic context for the negotiation of forests as a crucial mitigation strategy but it is important to note until recently, that the forest sector has been negotiated within the context of forest benefits, conservation as well as the welfare of the forest-dependent communities.214 These considerations have informed the explosion of forest-related instruments with no binding commitment to parties under international environmental law.

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Forests in international environmental law

In analysing the polarization that featured in the negotiation of forest issues, particularly on the need for a binding instrument to regulate forest activities, Humphreys identifies two patterns in states‟ negotiation.216 The first is traceable to the negotiations at the United Nations Conference on Environment and Development which was highly conflictual between the North and the South. Having a history of forest conservation, the North was in favour of a binding convention to regulate the forest sector.217 In opposing this view, the South, particularly supported by China, argued that establishing a convention will infringe upon their sovereignty over the use of natural resources.218 A significant outcome of this phase of the negotiation was the agreement on the Forest Principles which recognise this entrenched position. Principle 1(a) emphasises the sovereign right of states to utilise their natural resources according to their own environmental policies. Forestry also received significant mention in the chapter 11 of Agenda 21 dealing with „combating deforestation‟.
This positional approach evident in the discussion, however, has shifted to one of co-operation as shown in the subsequent accommodation of forest issues in major instruments dealing with the environment. For instance, forest preservation has been an active component of, and a strong asset in biodiversity conservation addressed by the Convention on Biological Diversity (CBD).220 Other instruments that illustrate the new thinking include the Johannesburg Declaration on Sustainable Development and the Plan of Implementation of the World Summit on Sustainable Development which emphasise the need for the sustainable management of forests products.221 The sustainable use of natural forests has been addressed by the Millennium Ecosystem Assessment as a practical and prudent way to support the livelihoods of the world‟s poorest communities in developing countries. Similarly, in the Outcome of the United Nations Conference on Sustainable Development (Rio+20), parties reiterate that forests have social, economic and environmental benefits which contribute to sustainable development.
Prior to the discussion of forests as a mitigation measure under international climate negotiation, the Intergovernmental Panel on Forests (IPF), from 1995-1997, and, subsequently, the Intergovernmental Forum on Forests (IFF) Working Group on Forests from 1997-2000, established by the Commission on Sustainable Development (CSD), have played crucial role in forest negotiations.224 Over the five years of their existence, the IPF and IFF examined a wide range of forest-related topics and generated proposals for acting on the sustainable management of the forests which are collectively regarded as the IPF/IFF Proposals for Action. This document requires countries to prepare national information on the management, conservation, and sustainable development of all types of forests, indicating in that information anticipated steps for implementation.226 A notable outcome of the development at these levels was the consensus on the need to establish the United Nations Forests Forum (UNFF). The UNFF was established in 2000 to build on the activities of the IPF/IFF and provide a forum for „continued policy development and dialogue among governments‟ on sustainable forest management. After almost three years of tough negotiations, starting from the 5th session of the UNFF, an instrument tagged the „Non-Legally Binding Instrument on All types of Forests‟ (All types of Forests Instrument) was adopted in 2007 at its 7th session.

Chapter 1: Introduction
1.1. Background
1.2 Study thesis
1.3 Problem statement
1.4 Objective of the study
1.5 Research questions
1.6 Assumptions
1.7 Research methods
1.8 Literature review
1.9 Limitations of study
1.10 Synopsis
Chapter 2: Human rights and climate change: Conceptual framework
2.1 Introduction
2.2 Human rights in climate change discourse: Conceptual dilemma
2.3 Human rights as a conceptual approach: Which approach, what features?
2.4 Conclusion
Chapter 3:The notion of indigenous peoples’ land rights and the adverse effects of climate change in Africa
3.1 Introduction
3.2 The nature of indigenous peoples‟ land rights
3.3 Indigenous peoples‟ land tenure and use v contrasting doctrines of international law
3.4 Subordination of indigenous peoples‟ lands in colonial and post-independent Africa
3.5 Cause and effect of climate change as threat to land-tenure and use
3.6 Conclusion
Chapter 4:The international climate change regulatory framework in relation to indigenous peoples’ lands
4. 1 Introduction
4.2 The international climate change regulatory framework
4.3 Regulatory frameworks on the responses to climate change
4.4 Subordinating notions in the international climate regulatory framework
4.5 Conclusion
Chapter 5: National climate change regulatory frameworks in relation to indigenous peoples’ lands
5.1 Introduction
5.2 Significance of a domestic regulatory framework
5.3 Conclusion
Chapter 6:The inadequacy of the national climate change regulatory framework in relation to indigenous peoples’ lands: Human rights as regional response
6.1 Introduction
6.2 Legal basis for engaging human rights at the regional level
6.3 The regional climate change regulatory framework and potential for human rights
6.4 Potentials in regional human rights mechanisms with focus on the Commission
6.5 Conclusion
Chapter 7: Conclusion and Recommendations
7.1 Conclusion
7.2 Recommendations
List of cases
List of instruments
Bibliography

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