Indigenous peoples are particularly vulnerable to the negative consequences of climate change and are already suffering disproportionately as a result. This is due to several reasons. Primarily, Indigenous peoples are legally and physically defenceless against large corporations that contribute to the unprecedented and severe change in climate currently occurring.

Physical vulnerability is a source of adversity owing to colonisation, which forced Indigenous tribes to migrate to areas with environmental disadvantage. Further, there is a special affinity between Indigenous communities and the land they reside on that produces a spiritual and ritualistic relationship—this is damaged by the deterioration of the land as a result of climate change.

It is important to examine the different issues that are faced by Indigenous peoples due to climate change, what the effect of these issues are, and how human rights law plays a role in the protection of the Indigenous in the context of climate change.

THE ISSUES FACED BY INDIGENOUS PEOPLES

The Office of the United Nations High Commissioner for Human Rights has stated that climate change “poses a serious threat to indigenous peoples, who often live in marginal lands and fragile ecosystems which are particularly sensitive to alterations in the physical environment”. While there is a common experience of global warming universally, the effects vary geographically, and the evidence of climate change can be felt in multiple ways. Groups of Indigenous people have reported instances of flooding, drought, desertification, and unpredictable weather. The result of these changes has been disastrous. Indigenous groups have been forced to relocate from their native lands, tearing the close spiritual connection they have with the land on which they originally reside. For example, rising sea levels in the Pacific Islands means the land has become swamped and natives face the prospect of relocation, leaving them vulnerable to the harms common with displacement, such as human trafficking.

Additionally, a common concerning consequence of climate change for Indigenous peoples is food insecurity. Indigenous communities tend to live off their land, and so when their land suffers, their livelihood tends to suffer due to their reliance on agricultural systems. Some of those suffering exceedingly from food insecurity include Indigenous groups living in South America, along with many regions in Africa and Asia. Agricultural systems for Indigenous peoples have an extensive history, for instance the Mesoamerican agricultural systems are preclassical, dating as far back as 2500 BC. If global warming had not accelerated adverse environmental effects, food systems such as the Mesoamerican system would have remained widely unchanged. Conversely, Indigenous communities have been forced to adapt to a changing environment at a speed that is seemingly impossible.

THE EFFECT OF CLIMATE CHANGE ON FUNDAMENTAL HUMAN RIGHTS

Climate inequality, as faced unduly by Indigenous peoples, is an obstruction of access to their fundamental human rights. Rights such as the right to life, the right to food, and the right to health are all directly obscured by the more dangerous and immediate forms of global warming, such as   natural disasters that have been caused due to various environmental factors.

Moreover, rights such as the right to self-determination, as secured in the International Covenant on Civil and Political Rights (ICCPR) have the potential to be violated due to the negative results of climate change. The right to self-determination is also recognised under the UN Declaration on the Rights of Indigenous Peoples in article 3, which states: “by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. The declaration also states that “free, prior and informed consent” must be granted before any action is taken that will adversely affect Indigenous peoples. However, the declaration does not address what precautions ought to be taken to avoid unintended secondary consequences.

Issues around causation present a massive complication when litigating in court against an organisation or body for the results of climate change. It is difficult to establish a direct link between a certain organisation and the exact results that have taken place—often the link is elusive and vague. Other issues hindering the justice process include relevant standing to bring forward a claim, attribution, and identifying a defendant.

Similarly, it is difficult to imagine the domestic remedies that exist if a case is properly argued. For example, what reparations ought to exist for companies that produce greenhouse gasses, and are monetary damages sufficient to remedy the damage done? At international courts, more accountability exists in the form of relief. At the Inter-American Court of Human Rights and the African Court on Human and Peoples' Rights, broad remedies are available, and at the European Court of Human Rights, while the remedies are narrower, they still exist. Despite this, the same issues surrounding causation exist at an international level, along with the added issues of victimhood and the necessity to exhaust all domestic remedies. Another form of protection at the international level is the support of the UN Special Rapporteur on Human Rights and the Environment, currently held by David R. Boyd, whose mandate includes “examin[ing] the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment”.

While there are layers of protection owed to Indigenous peoples, in action they appear inaccessible. Climate change cases present many problems in court, but even prior to court, issues relating to the cost of litigation and education on the legal system introduce barriers to justice. The accumulation of difficulty with access, causation, and redress result in a messy system that is failing to ensure the livelihood of native people and is permitting the erosion of diverse cultures that enrich both land and people alike.

Emily is currently studying Humanitarian Action at SOAS University, to follow on from her undergraduate degree in Law and Human Rights. Her interests include forced migration, international human rights law, and freedom of expression.

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