UCLA Journal of Environmental Law and Policy

Indigenous peoples are particularly vulnerable to the negative effects of climate change, as their livelihoods and ways of life depend heavily on natural resources impacted by climate variability and extremes. In addition, global climate governance and the implementation of climate projects often have damaging consequences on Indigenous peoples, including restricting their access to lands and resources. In this context, REDD+ as an international mechanism under the UNFCCC aimed at mitigating climate change through forest management, has raised concerns about its impact on the human rights of Indigenous peoples. To date, studies have shown that the implementation of REDD+ on a domestic level has had both negative and positive impacts in Indigenous peoples’ rights. Drawn from this tension, this article examines the relationship between the REDD+ mechanism and the rights of Indigenous peoples, focusing on its domestic operationalization in Chile.

Chile, with a vast forest network in indigenous territories, offers valuable insights. The article highlights that REDD+ in Chile has allowed Indigenous peoples to incorporate their concerns into national forest governance and has facilitated project development in collaboration with Indigenous communities. These efforts have resulted in both financial and non-financial benefits for these communities. However, the analysis reveals that progress in promoting Indigenous peoples’ rights has been primarily in individual rights rather than their collective rights as peoples. While REDD+ in Chile has shown potential in promoting social and economic rights of Indigenous peoples, further attention is needed to address collective rights such as self-determination, land rights, and Free, Prior and Informed Consent (FPIC).

This Article explores Kānaka Maoli’s (Native Hawaiians’) work to re-center principles of Indigenous biocultural resource management in decisionmaking to more fully realize restorative environmental justice. To do so, it contextualizes ʻāina (land and natural resources) as Kānaka Maoli’s natural counterpart. Deploying a contextual inquiry framework to preserve and advance self-determination for Hawaiʻi’s Indigenous People, this practical approach begins with cultural context as a foundation, articulates the historical injustices and impacts of colonialism, and in particular, examines the work of the Waiʻoli Valley Taro Hui in the wake of devastating climate impacts, including flooding, to design a roadmap for future decisionmaking. In partnership with the William S. Richardson School of Law’s clinical courses, the Hui’s dilligent advocacy gives life to constitutionally protected traditional and customary rights in Hawaiʻi that have been excercised since time immemorial. Their work not only empowered decisionmakers with Indigenous place-based practices for a more comprehensive and adaptive approach to natural resource management, but they also successfully preserved the practice of kalo cultivation in Waiʻoli a mau loa aku—forever.

This Article examines the important role old growth forests play in mitigating climate change and argues there now exists both a social imperative and legal basis for our courts to recognize legal rights for these precious few remaining ancient ecosystems.

The Article is written from a unique perspective. Using as context first person accounts from one of the authors’ two months living in an old growth forest and the events leading to her arrest during the largest civil disobedience protest in the history of Canada, the Article examines the disconnect between the current state of the law and science-based concerns about climate change. The Article describes one land defender’s thoughts and feelings as she contemplates the ancient ecosystem she seeks to protect, learns from First Nations’ Elders and encounters the Royal Canadian Mounted Police forces and frustrated loggers. The authors then present a legal analysis that addresses the science of old growth forests’ crucial role in mitigating future climate change, considers failed international commitments to protect and restore these vital ecosystems and draws guidance from court decisions in other jurisdictions that have recognized legal rights for nature. The Article then builds on concepts from the ancient traditions and customs of First Nations, academic writings and concepts from Aboriginal rights and title litigation in Canada to present a rationale for Canadian courts to apply ecocentric-based principles in the future development of the law. Ultimately, the authors propose the recognition of “Ancient Forest Rights” to provide a voice for old growth forests in the courts of Canada.

The United Nations Human Rights Committee’s 2022 Decision, Daniel Billy et al. v. Australia (“Daniel Billy” or “the Decision”), brought by Indigenous Peoples residing on the Torres Strait Islands off the coast of Australia, is the first case before an international human rights body to find that a State’s failure to adopt timely climate adaptation measures violates the human rights of Indigenous Peoples living in that State. In Daniel Billy, the Human Rights Committee (“the Committee”) found a violation of the right to privacy, family, and home and the right to culture; but not the right to life. Drawing on the International Covenant on Civil and Political Rights (“the Covenant”), the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), and recent developments in the field of climate change and international human rights law (IHRL), this Comment discusses the significance and the limitations of Daniel Billy regarding the protection of the rights of Indigenous Peoples and others affected by climate change. We find that the advancements made in Daniel Billy are a big step toward holding states accountable for inadequateclimate adaptation measures.

In our analysis of the Decision’s shortcomings, however, we argue that Daniel Billy promises more than it delivers on two accounts. First, we argue that the failure of the Committee to clearly determine that states have a positive obligation to adopt climate change mitigation measures, in addition to adaptation measures is a significant limitation of the Decision. Without climate change mitigation, it will not be possible for Indigenous peoples on low-lyingi slands or in other climate-vulnerable locations to protect their land and way of life, the basis for several human rights. Further, climate change is perpetuated by industrialized states, but its effects are most keenly felt by communities, like that of the Torres Strait Islanders, who have contributed little to climate change. Neglecting to link states’ duty to mitigate climate change to human rights violations therefore ignores the colonial nature of climate change. Second, we argue that the Committee failed to consider the interconnectedness of the right to life with dignity in the context of climate change and Indigenous Peoples’ right to enjoy their culture when it rejected the Torres Strait Islanders’claim that Australia’s (in)action on climate change mitigation and adaptation violated the Islanders’ right to life with dignity. Notwithstanding these limitations, we conclude that the precedent set in Daniel Billy et a. v Australia will have a long-lasting positive impact in the fields of international environmental and human rights law.