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Indigenous Communities and Biodiversity Conservation:
Protected Areas and the Right to Consultation
By Jason Gray*
I. Introduction..........................................................................................................................
II. The Importance of Biodiversity to Communities in Gabon and Panama....................
A. Two of Gabon's Rural Communities Have Long Depended on Biodiversity for Their Culture and Livelihoods
i. The Balumbu of the Ndougou Lagoon...............................................................................
ii. The Bavili of Loango.........................................................................................................
B. Two Communities in Panama Traditionally and Currently Rely on Their Environment.......
i. The Naso of the Rio Teribe................................................................................................
ii. The Ngöbe of the Rio Changuinola...................................................................................
III. The Meaning of Indigenous..................................................................................................
A. The Legal History of the Term Indigenous Yields Broad Definitional Criteria......................
B. Gabon's Balumbu and Bavili Communities Fit the Definition of Indigenous........................
C. Panama Recognizes Naso and Ngöbe Communities as Indigenous......................................
IV. Indigenous Rights and the Right to Consultation........................................................
A. Indigenous Rights Have Evolved Over Time.........................................................................
B. The Meaning of the Right to Consultation as Understood in Relation to the Right to Self-Determination
i. Assessing the Right to Self-Determination.........................................................................
ii. Understanding the Right to Consultation...........................................................................
C. Customary International Law and Consultation....................................................................
i. State Practice Evidences a Customary International Right to Consultation......................
ii. International Agreements Demonstrate a Global Recognition of the Right to Consultation
iii. International Bodies Recognize the Right to Consultation.................................................
iv. Legal Scholarship Describes the Right to Consultation as Customary..............................
V. The Right to Consultation and National Parks in Gabon and Panama.....................
A. Management of Gabon's Loango National Park Provides a Positive Example of Indigenous Consultation
B. Governmental Actions Regarding La Amistad International Park in Panama Violate the Right to Consultation
VI. Conclusion.............................................................................................................................
I. Introduction
Human activities have increasingly impacted the health of the planet's many ecosystems.[1] Habitat destruction, global warming, and other human-induced environmental degradation have spurred an international effort to combat this phenomenon. Beginning in the 1970s, the international community began addressing environmental concerns through the adoption of international treaties, agreements, and declarations designed to curb these problems.[2] Following the Rio Declaration of 1992, a large majority of States undertook to develop strategies to reverse the trend and protect the global environment.[3] In an effort to preserve the remaining vestiges of the natural world, States have designated portions of their national territories as legally protected areas.[4] Many of these protected areas have been set aside with the goal of conserving biological diversity, or biodiversity.[5] A familiar type of protected area is the national park.[6]
The protected status of these various areas has had a significant impact on indigenous and local communities living in and around reserves, national parks, and other protected areas. As management regimes developed in relation to biodiversity conservation, governments and conservationists at first ignored important rights of the people most dependent on the areas under protection.[7] Now, they have begun to better understand the intrinsic link between communities living near areas which are either designated as protected areas or under consideration for such designation.[8] In fact, it has become increasingly clear that effective biodiversity conservation and protected area management cannot occur without the full participation of the communities who have traditionally depended on those areas for their culture, livelihoods, and survival, notably indigenous and tribal communities.[9] In essence, with the recognition of substantial human rights over the past century, international agreements recognizing substantive human rights have accompanied the growing body of international environmental laws.
In late 2007, a majority of States adopted the Declaration on the Rights of Indigenous Peoples.[10] The Declaration elaborates many recognized rights of indigenous peoples, including the right to consultation regarding their land.[11] It recognizes the importance of land and biodiversity to indigenous populations, as do a number of other international human rights and environmental agreements. In order to achieve effective biodiversity conservation and respect the internationally recognized legal rights of indigenous and local peoples, governments and management agencies must observe indigenous and local communities' right to consultation when establishing and managing protected areas.
This paper will analyze the status and effect of the obligation to consult indigenous peoples on matters that directly affect their rights to their lands. Although this analysis applies to all categories of protected areas, it will specifically focus on national parks. Part II explores the significance of land and biodiversity to local tradition, culture, and lifestyle in two countries: Gabon and Panama. It sets forth the general facts concerning two groups of people in each country who live near national parks. Part III examines the meaning of the word indigenous in international law and applies the definition to the people discussed in Part II. Emphasizing the rights of indigenous communities with regards to the environment, Part IV argues that the right to consultation concerning any action which may affect traditional use of land falls within customary international law. Part V studies the practical application of the obligation to consult in Gabon and Panama. The paper concludes by reconciling potential conflict between human rights and environmental protection through a consultative process.
II. The Importance of Biodiversity to Communities in Gabon and Panama
Conservation organizations have set priorities on where they focus their efforts to protect the environment.[12] One criterion utilized by these groups in assessing the conservation importance of a particular region is biodiversity. Typically, tropical areas tend to harbor high levels of biodiversity, in terms of species richness.[13] Tropical areas, because of this rich diversity of different species, have been heavily exploited for their natural resources. In particular, timber extraction has in some places devastated tropical ecosystems, giving conservationists another criterion upon which to set their priorities: habitat loss.[14] Additionally, tropical areas are often home to people who have traditionally depended for generations on the high levels of biodiversity.[15] Indigenous and tribal communities have subsisted on the fruits of the trees, the fish from rivers, and the animals in the forest.[16] Two areas noted for their high biodiversity and conservation importance are Central Africa and Central America.[17] Within these regions, the countries of Gabon and Panama serve as important case studies for assessing the role biodiversity plays for local human communities.
A. Two of Gabon's Rural Communities Have Long Depended on Biodiversity for Their Culture and Livelihoods
Situated on the western coast of Central Africa, Gabon stretches from the Atlantic Ocean deep into the forests of the Congo Basin. The country has a long history of peace and security in a region plagued by struggles.[18] With nearly eighty-five percent of its area covered by dense, tropical rainforest, Gabon boasts some of the most intact forest in all of Sub-Saharan Africa.[19] Although it has a population of less than one and a half million, Gabon's citizens belong to over forty different ethnic groups, speaking roughly the same number of languages.[20] French has been the unifying language since independence from France in 1960 and Gabon maintains close ties with France as a trade and development partner.[21]
Gabon's economy has been based on heavy oil and timber exportation.[22] However, as its oil reserves dwindle, the nation has begun to assess new options for long-term economic benefits, perhaps the most promising option being the development of ecotourism.[23] Following the recommendations of various international conservation groups, Gabon made history at the Johannesburg Summit in 2002 by designating in a single action ten percent of its territory as thirteen national parks.[24] It has been the express desire of the Gabonese Nation to increase the amount of international tourists visiting the country's truly remarkable biodiversity.[25]
Most of the national parks were designated in remote areas far from most human settlements. However, some, such as Loango National Park, still have small populations of people living on their borders (and sometimes inside the borders).[26] The area around Loango National Park, which is bordered by two large lagoons to the north and south, and the Atlantic Ocean to the west, has long sustained small communities of the Balumbu and Bavili peoples. The Park contains relatively stable populations of forest elephants, forest buffalo, hippopotami, manatees, gorillas, chimpanzees, leopards, over sixty fish species and roughly 470 species of birds.[27] In addition, the white sand beaches of Loango National Park provide important nesting sites for four species of endangered sea turtles: the Leatherback, Olive Ridley, Hawksbill, and Green Turtles.[28] The high level of biodiversity remains essential to these peoples' everyday lives.
i. The Balumbu of the Ndougou Lagoon
On the southern edge of Loango National Park, the Ndougou Lagoon winds its way through salt-water mangroves, papyrus-studded shores, and passed small fishing camps and several villages. Most of the inhabitants of the Ndougou Lagoon are of the Balumbu ethnicity.[29] Their history, like that of many Africans, remains somewhat shaded in mystery, stemming from some distant migration in the past, likely coming from what is now the Republic of Congo.[30] This paper is concerned with the generations of Balumbu who have been occupying villages on the edge of Loango National Park.
The Balumbu have traditionally depended on the biodiversity of the area for their survival. Today, many people maintain an active artisanal fishery, utilizing nets, shrimp cages made from vines, and the occasional modern fishing rod.[31] In addition, most families in the villages conduct small, subsistence agriculture, often consisting of plantains, manioc (yucca), palm nuts, and taro roots.[32] In order to plant their crops, families clear a patch of forest and burn the slash left from the cutting.[33] Women traditionally plant the crops and maintain the plantation.[34] Families will leave a plantation fallow for a growing season or two, or they may abandon it entirely due to soil depletion or simply because the forest has reclaimed the plot of land.[35] As such, the natural environment has provided food, shelter, and activity for generations.
In addition to fishing and farming, the Balumbu occasionally hunt. Between the 1950s and 1980s, and prior to its 2002 national park designation, Loango National Park was a high-profile hunting reserve for wealthy sports hunters.[36] However, in 1981, the Gabonese legislature enacted an interdiction on hunting of all animals included on a list of protected species.[37] This list includes most large mammals.[38] The law has since been modified, but the protections remain in place.[39] However, "village-based hunting by foot is not a threat to wildlife populations" because the village population is small.[40] For conservationists, if this hunting becomes commercialized, then greater enforcement activities would need to be contemplated.[41]
Balumbu families who live in nearby towns return to their natal villages for traditional ceremonies or for a weekend of fishing.[42] These traditional ceremonies include dances and purification, healing, and mourning rituals.[43] The Balumbu maintain a strong connection to their tradition, as evidenced by these ceremonies, by their adherence to the Lumbu language, and through their oral history.[44] Furthermore, even those living outside of the villages abide by the traditional decision-making process of the Balumbu.[45] As with many other Central African ethnicities, each Balumbu village has a traditional village chief who helps mediate village problems.[46] Therefore, although many Balumbu reside outside of their native villages, they strongly identify themselves with their traditions, language, political structure, and the coastal region in which they live.
ii. The Bavili of Loango
The Bavili, which descend from the Kingdom of Loango, are another ethnic group which settled along the coast up to Loango National Park after having migrated from what is now the Republic of Congo.[47] Today, the Bavili people live in small villages, the occupants of which tend to be either under fifteen or over fifty-five years of age.[48] Many Bavili continue fishing in the lagoons, rivers, and occasionally the ocean, employing methods similar to their Balumbu neighbors.[49] Bavili families also occasionally hunt and they depend on subsistence farming for the remainder of their diet.[50] Living in the same area, the Bavili and Balumbu share many of the same activities.
Despite their similarities, the Bavili remain distinct from the Balumbu and other ethnic groups in Gabon. They maintain their own traditional decision-making process and village chief structure.[51] They maintain a strong oral tradition in the Vili language.[52] In addition, the Bavili of Gabon can likely trace their heritage back to the Kingdom of Loango in the current Republic of Congo.[53] As such, the Bavili living near Loango National Park remain firm as to their status as a distinct and separate ethnic group, with a separate decision-making process, unique history, and spiritual beliefs.[54]
B. Two Communities in Panama Traditionally and Currently Rely on Their Environment
On the opposite side of the Atlantic Ocean, the narrow Panamanian isthmus separates the world's two largest bodies of water. It also joins these two oceans by way of the Panama Canal.[55] Panama has been the subject of Spanish rule, Colombian rule, and heavy influence from the military presence of the United States.[56] The country is inhabited by less than three million people, including seven identifiable indigenous groups.[57] While Spanish is the national language, English is widely spoken and understood in urban centers, indigenous groups each speak their native dialects, and minority groups speak French, Italian, Greek, and Chinese.[58] As such, Panama boasts a wide diversity of peoples and cultures.
With its tropical climate, including a relatively uniform average annual temperature, Panama has long been an important producer of fruit and is increasingly an attractive tourist destination. In fact, Panama's economy is based primarily on revenue from the Panama Canal, agriculture and fisheries exportation (in particular bananas and shrimp), international banking institutions, and tourism.[59] Tourists, and conservation groups, are drawn to Panama's rich tropical climate and significant diversity of plant and animal life.[60] As such, the Panamanian government has designated sixteen national parks, in addition to many other protected areas, with the stated goal of preserving Panama's biodiversity.[61] Thus, Panama's natural resources have heavily influenced its economy and its national conservation policies.
The outstanding biodiversity of Panama, in and outside of the national parks, has long allowed rural communities to survive. In some cases, the communities have lived in areas now designated as national parks for generations. For instance, the area around La Amistad International Park, which is shared with Costa Rica, is home to several different ethnic groups, including the Naso and the Ngöbe peoples.[62] The Park boasts the largest remaining tract of virgin forest in Central America, hundreds of bird species, jaguars, endangered Central American Tapir, and important fish species.[63] For the Naso and Ngöbe people, this high level of biodiversity continues to play an important role in their daily lives.
i. The Naso of the Rio Teribe
La Amistad International Park derives much of its beauty from the rivers originating on its high mountain peaks. These rivers sustain a great deal of life, including the lives of the Naso people, who live along the Rio Teribe.[64] As in the case of the African communities, the history of the Naso, and of the Ngöbe, remains clouded. However, it appears that the Naso likely branched off from a migration of pre-colonial groups coming north from South America.[65] They probably settled on the coastal and island zone of Panama, until retreating into the more inaccessible mountain regions of what is now La Amistad International Park sometime in the eighteenth century.[66] Currently, Naso villages exist outside of the park's boundary, in the buffer zone.[67] Thus, for the last several hundred years Naso society has depended on and adapted to living along the rivers originating inside the national park.
In their dependence on the biodiversity of La Amistad International Park, the Naso have become adept at living off the land. They use the rivers for transportation and fishing.[68] In addition, the roughly three thousand remaining Naso people conduct slash and burn agriculture, operating small, subsistence farms for crops such as yucca, plantains, cocoa, rice, and oranges.[69] The ample faunal resources also allow for some hunting and fishing, although it appears that the Naso spend more time farming.[70] Some people in the various Naso villages also raise animals such as chickens and pigs and the occasional horse or cow.[71] In essence, the Naso have developed a long-standing utilization and dependence on the biodiversity of their territory.
Throughout their time on the Rio Teribe, the Naso have maintained their traditional political structure. This structure incorporates both a traditional monarchy and elected officials to maintain order.[72] Under the traditional Naso decision-making process, the people elect a king from within the Santana family.[73] The king appoints councilors and works to solve problems when the locally elected officials fail to reach a solution.[74] He also represents the Naso people to outside communities and the national government.[75] For generations, this political structure has governed the Naso people and their activities throughout the region.
In addition to holding fast to their political organization, the Naso also maintain a strong connection to other traditional aspects of their lives. While many Naso speak Spanish, the majority continues speaking their native Naso language amongst themselves.[76] Traditional medicine persists as traditional healers help their friends and relatives who fall sick.[77] Furthermore, Naso mythology has given rise to dances and stories relating to the animals surrounding them.[78] Throughout the years, the Naso have relied on their environment, and as Naso culture has evolved in relation to this environment, the Naso people continue to follow their traditional activities, language, and social organization.
ii. The Ngöbe of the Rio Changuinola
More numerous than the Naso, the Ngöbe (or Ngäbe) people also live in several different areas of Panama.[79] This paper focuses specifically on the Ngöbe communities living along the Rio Changuinola. One of the largest rivers of La Amistad International Park, the Rio Changuinola drains a large portion of the water coming from the mountains and carries it to the Caribbean Sea. The Ngöbe of the Rio Changuinola depend on the river for fish and would be affected by changes to the conditions of the river.[80]
The Ngöbe also utilize the land and its resources to sustain themselves through agriculture and animal husbandry. They farm crops such as oranges, yucca, and cocoa.[81] They additionally have implemented tree gardens and raise a variety of livestock.[82] Hunting parties occasionally bring back some game, but a greater portion of the Ngöbe diet comes from raising domestic livestock.[83] In general, the abundance of natural resources has allowed Ngöbe families to eat, build homes, and grow quite large, averaging fifteen people per household.[84] With such rich biodiversity, Ngöbe communities have been able to maintain their traditional lifestyle for generations.
The Ngöbe people of the Rio Changuinola organize their villages based on kin groups, consisting of five to ten houses, wherein "individuals look to their kin to provide moral, social, and economic support and assistance."[85] These kin groups control access to land and "the right to use land is based on kin group membership."[86] Thus, villages remain small, and each family gets access to the resources it needs. The Ngöbe language also allows the Ngöbe to remain distinct from other groups in Panama. Many people along the Changuinola, especially in the older generations, do not speak Spanish.[87] Like other indigenous peoples, the Ngöbe have a distinct and rich oral tradition.[88] In sum, the Ngöbe people live as they have for generations, having adapted to the abundant biodiversity around them, and maintaining their unique language, culture, and identity.
III. The Meaning of Indigenous
The four different communities described above understand the importance of their environment, as do many other groups living in similar circumstances. Many of these communities are considered indigenous peoples.[89] While conservation agencies and organizations strive to better protect global habitats, communities living in and around these areas have long sought greater recognition of their cultures and rights.[90] The term "indigenous" is now found in various international legal documents, conventions, and declarations, including the recently adopted Declaration on the Rights of Indigenous Peoples.[91] States and their protected area managers need to understand the rights and obligations under international law with regards to the people living near the areas under management, whether they are indigenous or not.[92] Therefore, understanding the meaning of the word indigenous and its implications on environmental protection and human rights is essential for achieving better protected area management and respect for human rights. This section briefly assesses the legal history of the term "indigenous" and explores a definition useful for purposes of protected area management. It then applies the definition to the four communities described in Section II.
A. The Legal History of the Term Indigenous Yields Broad Definitional Criteria
Different peoples over the last few centuries have either been classified, or have classified themselves, as indigenous.[93] However, the use of the term in international law has only evolved more recently.[94] One of the first international bodies to concern itself with indigenous peoples as such was the International Labour Organization (ILO).[95] In 1921, the ILO began evaluating cases of indigenous workers and then created the 1926 Committee of Experts on Native Labour.[96] In 1957, this Committee, along with other United Nations bodies, formed the Committee on Indigenous Populations and developed the draft text for what became the Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, No. 107 (Convention No. 107).[97]
As the first international convention "focused specifically on the rights of indigenous peoples," Convention No. 107 has been ratified by twenty-seven countries.[98] It set forth binding obligations on States concerning indigenous populations within their territories.[99] It described two categories of "populations" to which the convention applies:
(a) members of tribal and semi-tribal populations in independent countries, whose social and economic conditions are at a less advanced stage than the stage reached by the other sections of the national community and whose status is regulated wholly or partially by their own customs and traditions or by special laws or regulations;
(b) members of tribal and semi-tribal populations in independent countries which 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 of colonisation and which, irrespective of their legal status, live more in conformity with the social, economic and cultural institutions of that time than with the institutions of the nation to which they belong.[100]
Following its adoption, however, States criticized the expansive meaning of these categories.[101] Furthermore, Convention No. 107, as suggested by its title, seeks to achieve integration of indigenous peoples into the national culture.[102] It even classified indigenous peoples as living at a "less advanced stage" than other sectors of the national population.[103] As such, the Convention was also criticized by indigenous peoples for failing to achieve the recognition of distinctness which many groups had hoped to attain.[104] To address these criticisms, indigenous groups, the ILO, and governments continued to work towards revising the language of Convention No. 107.
In 1989, after years of discussions with United Nations bodies and indigenous groups, governments adopted the Convention Concerning Indigenous and Tribal Peoples in Independent Countries, No. 169 (Convention No. 169) at the International Labour Conference of that year.[105] Convention No. 169 removed language used in Convention No. 107, such as the word "integration," which was unacceptable to indigenous groups.[106] In addition, Convention No. 169 includes the first reference to indigenous peoples, rather than populations.[107] For instance, Article 1 states that the Convention applies to:
(a) tribal people 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 and traditions or by special laws or regulations;
(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations who inhabited the country, or the geographical region to which the country belongs, at the time of conquest or colonisation 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.[108]
Thus, Convention No. 169 revised the two categories described in Convention No. 107 and made them more acceptable to indigenous peoples.
In addition to removing integrationist language from Convention No. 107 and replacing it with language of distinctness and increased rights, Convention No. 169 included in this quasi-definition of indigenous peoples a key provision: self-identification as indigenous. It provides that "self-identification as indigenous and tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply."[109] While this provision remains controversial for some States, it was a crucial improvement over previous language and demonstrates the importance of seeking indigenous participation in the drafting of such documents.[110]
Although other agreements and declarations have been adopted since Convention No. 169 came into force, Article 1 contains one of the few articulated meanings of the word "indigenous." Interestingly, even the Declaration on the Rights of Indigenous Peoples does not contain a definition of indigenous.[111] According to Convention No. 169, an indigenous group of peoples is one which (a) self-identifies as indigenous, and has retained "some or all" of its (b) social, (c) economic, (d) cultural, and (e) political institutions.[112] However, the scope of Article 1 has been left purposefully broad. For instance, although Convention No. 169 refers specifically to both indigenous and tribal peoples, differences between the two are of "theoretical importance" only since the substantive rights within the Convention apply equally to both.[113] This broad definitional set of criteria will aid in analyzing whether those peoples living in and around the protected areas described in Section II qualify as indigenous.
B. Gabon's Balumbu and Bavili Communities Fit the Definition of Indigenous
Gabon's Balumbu and Bavili peoples, as described in Section II, satisfy the criteria developed in Convention No. 169 because both ethnic groups identify themselves as distinct from all other groups living in Gabon and Central Africa.[114] First, both peoples qualify themselves as belonging to their specific groups, and as indigenous.[115] Second, the Balumbu and Bavili peoples retain their social structure, as evidenced by their organization into various villages.[116] Even those Balumbu and Bavili who live in nearby towns for work return to the villages often and thus maintain their link to this social existence.[117] Third, many of the villagers still depend on their traditional economic activities, such as fishing and subsistence agriculture.[118] While the Balumbu and Bavili share similar methods of fishing and farming, they keep themselves separate in these endeavors.[119]
Fourth, these two peoples have kept a strong connection with their different traditions and cultures, as evidenced by their unique ceremonies, languages, and oral histories.[120] Finally, each Balumbu or Bavili village, or group of villages, is governed collectively under the direction of a traditional chief.[121] While this form of political organization may not be unique to the Balumbu or Bavili, the two groups generally respect and follow the decisions taken by their respective chiefs. Although some States and indigenous groups maintain that the meaning of "indigenous" in Africa remains controversial at best, based on the definitional criteria of Convention No. 169, the Balumbu and Bavili of Gabon, as distinct groups, qualify as indigenous peoples.[122]
C. Panama Recognizes Naso and Ngöbe Communities as Indigenous
Central America has provided a process, through state constitutions and legislation, to recognize cultures as indigenous.[123] In part, this recognition stems from the "role played by indigenous cultures" in shaping the identity of these countries.[124] Because Panama recognizes the Ngöbe and the Naso as indigenous peoples, qualifying these two peoples under Convention No. 169 criteria is not difficult.[125]
The Naso and Ngöbe peoples fit the indigenous criteria of Convention No. 169. First, both peoples consider themselves to be indigenous.[126] Second, they are organized in distinct social hierarchies. For instance, the Naso live in small villages comprised of several families, whereas the Ngöbe live in villages comprised of a single Kin group.[127] Third, both groups depend on their natural resources for their economic livelihoods. The Naso and Ngöbe are, among other occupations, fisherpersons and subsistence farmers.[128] Fourth, both groups have retained a strong connection with their individual cultures, as demonstrated by the consistent use of their native languages and their ceremonies.[129] Finally, each group respects different political institutions. For instance, the Naso elect and follow a king who helps the larger community come to important collective decisions, while the Ngöbe are governed by their distinct family or kin groups.[130] Therefore, in addition to their recognition by the national government as indigenous, and similarly to the Balumbu and Bavili of Gabon, both the Naso and the Ngöbe peoples of Panama meet the necessary indigenous criteria.
IV. Indigenous Rights and the Right to Consultation
Once a particular group of peoples has been qualified as "indigenous," States and their derivatives, such as governmental protected area management agencies, must determine which rights those indigenous peoples possess. As mentioned above, the idea of indigenous and indigenous rights has evolved over the last century to recognize many different rights. As these rights continue to advance, governments and their derivative protected area managers must understand the obligations these rights place on them. This section explores the evolution of indigenous rights. It assesses the meaning of the right to consultation and bolsters it through additional supporting rights. Finally, it analyzes various international agreements in which the right to consultation has been included and argues that this right is customary international law.
A. Indigenous Rights Have Evolved Over Time
Prior to the adoption of Convention No. 107 in 1957, the international community had come to accept the existence of the word "indigenous" under international law.[131] As this acceptance evolved, the notion of special indigenous rights began to take shape. Convention No. 107 focused mainly on obligations of member States toward indigenous populations, but it did enumerate various rights for indigenous peoples.[132] For instance, it elaborated the right of ownership over "traditionally" occupied lands and the right to be consulted prior to any planned removal from those lands.[133]
As States came to recognize increasing human rights in general, the understanding and recognition of indigenous rights in particular also increased. With the adoption of Convention No. 169, member States undertook to recognize and enforce various rights, including the indigenous peoples' rights to "decide their own priorities for the process of development," to retain their own customs and institutions, to not have their rights abused, and to ownership and possession of lands.[134] Convention No. 169 also included the indigenous peoples' rights to "participate in the ‘use, management, and conservation' of . . . [their] resources," to not be removed from their lands, and to use and promote their own languages.[135] Along with these rights, Convention No. 169 also imposes obligations on member States similar to those under Convention No. 107, including adopting measures to safeguard indigenous peoples' "persons, institutions, property, labour, cultures and environment."[136] Finally, Convention No. 169 recognizes the member State obligation to consult indigenous peoples, and the indigenous peoples' right to consultation and participation in decisions affecting their communities.[137]
Most recently, the Declaration on the Rights of Indigenous Peoples of 2007 re-expresses some of the binding rights described in Conventions No. 107 and 169, and also elaborates some important additional rights. In its substantive articles, the Declaration declares that indigenous peoples have the rights to "all human rights," to "maintain and strengthen their political, legal, economic, social and cultural institutions," to live in "freedom, peace and security," to not "be subjected to . . . [the] destruction of their culture," and to "not be removed from their lands" without their consent.[138] The Declaration further provides for the indigenous rights "to practice . . . their . . . traditions and customs," to "revitalize . . . their histories [and] languages," to "participate in decision-making . . . matters," to improve their "economic and social conditions," to "determine and develop priorities . . . for . . . development" of their territories, and to their lands.[139] Thus, the Declaration reaffirms indigenous rights pertaining to culture, participation, and lands, which were also found in Conventions No. 107 and 169.
Furthermore, the Declaration elaborates on some additional rights, including the rights to "self-determination," to "determine their own identity or membership in accordance with their customs and traditions," to "a nationality," and to the "conservation and protection of the environment."[140] In this manner, the Declaration assists in the maintenance and strengthening of existing and emerging indigenous rights. Of all of the rights found within the Declaration, one in particular should always enter a protected area manager's mind when considering management strategies for a particular national park or other protected area: the right of indigenous peoples to be consulted when legislative and administrative measures affecting them are devised and implemented.[141]
B. The Meaning of the Right to Consultation as Understood in Relation to the Right to Self-Determination
Some of the rights present in the above and other international agreements stand alone. For instance, the right to use and promote language is clear and specific as to what it entails.[142] However, other rights are intertwined and difficult to understand outside of their context as parallel and interdependent concepts. For instance, the right that States and state-run protected area management agencies should be concerned with, i.e., the right of indigenous peoples to be consulted on matters concerning the traditional use of their lands and resources, is best understood in relation to the right to self-determination. The following subsections assess the right to self-determination and extract from it the right to consultation.
i. Assessing the Right to Self-Determination
Several principles under international law have received a great deal of scholarship, controversy, and ultimately acceptance. The right to self-determination is one such principle.[143] Originally understood as dealing with the establishment of sovereign nation-states, the right to self-determination was a vital concept in helping end the colonial era as former colonies around the world declared their independence in the mid-1900s.[144] From World War I through today, the principle of self-determination has been viewed as a "standard of legitimacy against which institutions of government were measured."[145] Thus, in its historical, colonial context, self-determination meant the right of a former colony to declare itself a sovereign State.
Following the end of World War II, the idea of a right to self-determination gained further acceptance and also increased in scope. In 1945, it found its way into the Charter of the United Nations.[146] Specifically, Article 1, paragraph 2 proclaims that the Charter was adopted "to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace."[147] The U.N. Charter altered the clearly State-centered meaning of self-determination by including the world "peoples." Drawing from this provision, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) both proclaimed that "all peoples have the right of self-determination."[148] As such, the human rights conventions expanded the scope of self-determination to include peoples.
Although the U.N. Charter, the ICCPR, and the ICESCR focus on "peoples," these instruments do not contain a definition of that word. Many States and scholars have therefore argued that referring to the right of "peoples" to self-determination includes only those groups of people who would be "entitled a priori to the full range of sovereign powers, including independent statehood," as in the context of former colonies declaring their independence.[149] As such, they contend that the application of international law therefore does not "explicitly recognize a right of sub-national groups to self-determination," at least in terms of declaring their independence.[150] However, other scholars argue that the Vienna Convention on the Law of Treaties requires that terms "be interpreted in good faith in accordance with the[ir] ordinary meaning."[151] Therefore, the use of the term "peoples" in the two human rights conventions should apply to all "spheres of community that define human existence."[152] This interpretation would include indigenous communities.
The lack of consensus as to what "peoples" are endowed with the right to self-determination poses a very real problem for indigenous peoples. However, many indigenous rights scholars have sought to change the debate as to whether self-determination refers only to colonial States and to groups of people within States seeking independence from those States.[153] Instead, they contend that the right to self-determination refers to a certain degree of autonomy within a State.[154] Addressing this issue regarding peoples in Quebec, the Supreme Court of Canada held that "peoples are expected to achieve self-determination within the framework of their existing state" and not in the older secessionist framework.[155]
To emphasize this view of self-determination, the Declaration on the Rights of Indigenous Peoples, after establishing that "indigenous peoples have the right to self-determination," provides that indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.[156] Since an overwhelming majority of countries signed onto the Declaration, despite its inclusion of the right to self-determination, it would appear that States have accepted this interpretation of the right.[157] This acceptance allows the Declaration to succeed to the ICCPR and the ICESCR by recognizing the right to self-determination of "peoples," including indigenous peoples.
Accordingly, to exercise their right to self-determination, indigenous peoples must be able to achieve a level of autonomy or self-governance over internal and local matters. Self-government requires a collective ability to make decisions and to participate in decisions which affect a particular group of people.[158] Furthermore, self-determination of indigenous peoples implies that should a State wish to act in a way which would impact an autonomous indigenous group, it would need to consult that group in order for them to adequately participate in their own governance.[159] Therefore, within the recognized right to self-determination exists the concept of a right to consultation, as discussed below.
ii. Understanding the Right to Consultation
Understanding how the right to self-determination of indigenous peoples evolved aids in determining the nature and necessity of the right to consultation. For instance, when a group of indigenous peoples has a right to self-determination, they necessarily have a right to participate in decisions affecting them.[160] This participation is subject to the condition that agents outside of the group (i.e. the State) must inform and consult the members of said group.[161] In fact, Convention No. 169 requires States to "consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly."[162] Furthermore, this Convention states that these consultations "shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures."[163] Thus, a general right to consultation stems not only from the provisions of international agreements, but also from the right to self-determination.
The right to consultation is especially important with respect to the environment many indigenous peoples live in, particularly around national parks and other protected areas. Convention No. 169 continues to provide assistance in this regard. Article 15 states:
(1) The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these people to participate in the use, management and conservation of these resources.
(2) In cases in which the State retains ownership of . . . rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples...[164]
Through these provisions, Convention No. 169 establishes the right to consultation regarding indigenous lands and resources, and even over resources in which the State retains ownership. Furthermore, the Declaration on the Rights of Indigenous Peoples provides that "States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent before adopting and implementing legislative or administrative measures that may affect them."[165] Consequently, the Declaration requires a consultation for any government action which may affect indigenous peoples, including projects which would impact the environment, such as the designation and management of a national park.
Throughout the consultation process, States must in good faith provide adequate information so that indigenous groups can then respond with their free and informed consent.[166] For most indigenous groups, this consent, or dissent, would be a collective response to a collective right.[167] The right to consultation exists in various articles within both Convention No. 169 and the Declaration on the Rights of Indigenous Peoples and it is binding on those States which are members of Convention No. 169.[168] Arguing that the State obligation to consult indigenous peoples is binding on all States will require further analysis.
C. Customary International Law and Consultation
The right to consultation over matters affecting traditional use of indigenous lands and resources is a right under customary international law. Customary international law is evidenced by State practice and opinio juris, or the belief that States act in a certain way because they are legally bound to do so.[169] In certain instances, international courts have already asserted that a principle or right is customary international law. The right to self-determination was found to be customary international law by the United Nations General Assembly and the International Court of Justice (ICJ). For instance, in the Western Sahara case, the ICJ held that the existence of a customary international right to self-determination had been reaffirmed by General Assembly Resolution 3292 and that it was a "basic assumption of the questions put to the court."[170] Because the right to consultation is, at the very least, a minimum requirement of the customary international right to self-determination, it must also fall under customary international law.
Additional sources further support the existence of rights and principles as customary international law. In the famous Paquete Habana case, the U.S. Supreme Court held that when a treaty or domestic legislation does not exist, then "resort must be had to the customs and usages" of States, which may be evidenced by "the works of jurists and commentators."[171] Therefore, further proof that the right to consultation is customary international law is found within State practice, non-binding international documents (i.e. Declarations) and other treaties which may evidence opinio juris, the views of international bodies, and the works of legal scholars.
i. State Practice Evidences a Customary International Right to Consultation
State practice, including that of Gabon and Panama, recognizes the right to consultation as a fundamental right of indigenous peoples. Illustrating this, the Declaration on the Rights of Indigenous Peoples, although non-binding, was approved by 143 countries, including Gabon and Panama.[172] This is a large majority of the 192 members of the United Nations and is strong evidence of State practice.[173] Many States have also enacted legislation pertaining to indigenous consultation. For example, Panama enacted its General Environmental Law which provides for "consultation procedures" with indigenous communities when State action might affect those communities.[174] Additionally, Rodolfo Stavenhagen, a former Special Rapporteur on Indigenous Issues to the United Nations Human Rights Council, found that while countries still need to improve their legislation regarding indigenous consultation, many countries do provide for some form of consultation within their laws.[175] Finally, States which are parties to the international conventions described above have all shown through their practice and membership that they are bound by the consultation provisions contained in those documents.[176] In sum, State practice seems to demonstrate the recognition of the right to consultation as customary international law.
ii. International Agreements Demonstrate a Global Recognition of the Right to Consultation
International agreements also provide that States must consult certain groups of peoples when State actions will have an impact on these peoples. First, the previously-discussed Declaration on the Rights of Indigenous Peoples requires governments to consult indigenous peoples.[177] Second, Article 5 of Convention No. 107 requires States to "seek the collaboration" of indigenous peoples relating to the "protection and integration of the populations concerned" under the Convention.[178] This collaboration requires adequate participation and appears to be the same right to consultation described above. Third, Article 6 of Convention No. 169 also requires States to consult indigenous peoples. The ILO has established a manual for interpreting Convention No. 169, in which it states that "consultation is a fundamental principle of the Convention."[179]
Fourth, the Convention on Biological Diversity also alludes to consultation of indigenous peoples. Specifically, Article 8(j) states that Parties shall seek the "approval and involvement of holders" of indigenous knowledge "relevant to the conservation and use of biological diversity."[180] Fifth, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Convention on Access to Information) requires that States ensure that all the public has the ability to participate in decisions regarding the environment.[181] As shown above, the right to consultation includes the effective ability to participate. Thus, the Declaration and these Conventions help demonstrate that the right to consultation is found throughout international legal documents.
iii. International Bodies Recognize the Right to Consultation
Several international bodies within the United Nations have also taken up the claim for an indigenous right to consultation. For example, the Permanent Forum on Indigenous Issues, an advisory body to the Economic and Social Council (ECOSOC) of the United Nations, recommends that the United Nations and other intergovernmental bodies ensure that indigenous peoples effectively participate in "decisions and processes which affect them."[182] This recommendation harkens to the consultation provisions described in both Convention No. 169 and the Declaration on the Rights of Indigenous Peoples. Additionally, in 1995 the United Nations General Assembly inaugurated the International Decade of the World's Indigenous Peoples.[183] Within the scope of activities of this international decade, the Commission on Human Rights requested that governments consult with indigenous peoples prior to conducting any activity.[184] As a result, these international bodies' statements on the right to consultation bolster the claim that the right is customary international law.
iv. Legal Scholarship Describes the Right to Consultation as Customary
Prominent legal scholars recognize the indigenous right to consultation as an international legal right. First, S. James Anaya, a celebrated professor of indigenous rights at the University of Arizona and the current Special Rapporteur on Indigenous Issues to the United Nations Human Rights Council, has stated that "the basic elements" of consultation have been "generally accepted within various spheres of international and domestic practice."[185] Accordingly, even the World Bank includes "‘informed participation' by indigenous peoples and ‘direct consultation' with them" in connection to activities funded by the Bank which may affect indigenous peoples.[186] Furthermore, Anaya asserts that consultation does not simply mean "informing indigenous communities," but must give them "the opportunity to genuinely influence decisions that affect their interest."[187] Second, Rodolfo Stavenhagen has recommended that all governments should establish effective "bodies for consultation and participation" in respect to indigenous peoples.[188] Legal scholars have thus argued for a right to consultation, specifically for indigenous peoples, under international law.[189]
Taken as a whole, existing State practice, international declarations and conventions, United Nations bodies, and legal scholarship evidence the existence of a customary international legal right to consultation of indigenous peoples. Thus, the right to consultation is binding not only on those States which recognize it as such, but also on all States. Consequently, States must require their government-run protected area management agencies to adequately consult indigenous peoples prior to taking major management decisions.
V. The Right to Consultation and National Parks in Gabon and Panama
The right of indigenous peoples to consultation, inherent within their right to self-determination and existing as customary international law, requires that government decisions which may affect indigenous peoples must be accompanied by adequate consultation of the potentially affected indigenous peoples.[190] From an environmental protection standpoint, this right requires government agencies and other management entities or organizations to seek participation from and give adequate information to the communities living in and around protected areas.[191] For instance, if an indigenous community inhabits and/or uses land, water, or other resources near or within a national park, the governmental entity charged with management of the park is advised to seek the input of the community when drafting management plans.[192] Often, management entails an aspect of zoning of the park and its buffer zone, meaning that the park manager will determine which human activities will be allowed in different sections of the protected area.[193] In instances of traditional natural resources use by indigenous peoples, determining these management issues requires the active participation and adequate consultation of those indigenous peoples.
The four separate and distinct groups of indigenous peoples described above provide informative case studies for the application of a government's obligation to consult and an indigenous peoples' right to that consultation. Examining the status of the right to consultation for the peoples living near Loango National Park in Gabon and La Amistad International Park in Panama reveals important lessons for improving protected area management and for better respecting the right to consultation. Furthermore, these lessons help dispel concerns that indigenous rights and environmental protection run counter to each other.[194] In fact, as explained above, adequate protection of biodiversity in any given protected area in or near which indigenous peoples live will be greatly hindered without their support and participation.
Management of Gabon's Loango National Park Provides a Positive Example of Indigenous Consultation
Created in 2002 along with the twelve other Gabonese national parks, Loango National Park falls under a fairly unique management regime. Prior to 2002, all protected areas in the country were managed by the Ministry of Water and Forests (MEF).[195] However, following the designation of a national park network, the government created the National Council for National Parks (CNPN) and is in the process of formalizing a National Parks Agency (ANPN).[196] In addition, both the MEF and the CNPN receive technical and financial assistance from national and international non-governmental conservation organizations, such as the Wildlife Conservation Society (WCS) and the World Wide Fund for Nature (WWF).[197] While the CNPN continues to evolve into a more robust ANPN, the MEF, WWF, and WCS have been helping it to develop management plans for Loango and other national parks.[198]
These government agencies and conservation organizations have worked on management issues with the indigenous Balumbu and Bavili peoples for many years concerning biodiversity and human activities in and around what is now Loango National Park. However, although some care was taken during the creation of Gabon's national parks to limit their impact on indigenous communities (i.e. by designating parks far from human settlement), the designation of Loango as a national park was conducted with little consultation of any of the indigenous communities living near it.[199] Such broad reaching decisions concerning the environment can have a great impact on those living on the territory.[200] As such, the Balumbu and Bavili could have legitimate worries over their rights regarding lands in which they have traditionally lived.
However, Gabon has made a marked effort to redress the lack of consultation during the park designation process. In fact, with the support of conservation organizations, management plans for Loango and other national parks have been wholly participatory and have allowed for the consultation of and input from both the Balumbu and Bavili peoples.[201] Beginning with the designation of the park, MEF and WWF employees have worked with the Balumbu and Bavili to develop a clear understanding of traditional activities and areas in which both peoples conduct these activities. Balumbu villagers have worked with WWF and MEF to map out their plantations, including determining the extent to which they believe the plantations will expand or shrink in the future.[202] Similar exercises have been conducted with Balumbu and Bavili fishermen in order to ascertain the areas of the lagoon and rivers in which the fishermen practice subsistence fishing, artisanal fishing, and commercial fishing.[203] Moreover, WWF, MEF, and CNPN employees have worked with villagers to develop strategies to prevent poaching and illegal fishing by non-indigenous outsiders.[204] All of these joint-activities have been conducted in a consultative manner and lead toward better cooperation, understanding, and biodiversity conservation.
Gabon has also received support from governments, including the U.S. government, in the drafting of management plans for its national parks.[205] Throughout this process, indigenous and local communities have remained involved in the development of future management. For instance, in June 2005, the United States Forest Service's International Program facilitated a zoning exercise for Loango National Park at which representatives of the MEF, CNPN, WCS, WWF, local government, and local communities took part.[206] At the end of the exercise, those present had worked together to shape the activities which would be allowed within and around the national park based on conservation needs, government needs, and indigenous needs.[207] Furthermore, current management activities for Loango National Park, as detailed in the most recent management plan, continue to engage the communities living around the Park in management decisions.[208] In essence, Gabon has made a good faith effort to provide for the adequate consultation and involvement of the indigenous peoples living around Loango National Park, including the Balumbu and Bavili peoples.
Governmental Actions Regarding La Amistad International Park in Panama Violate the Right to Consultation
In 1995, Panama was touted as one of the most progressive countries in Central America regarding indigenous rights.[209] For instance, following pressure from several of its recognized indigenous groups, Panama worked with these communities to establish comarcas, or autonomous indigenous regions.[210] However, for those indigenous peoples who have not been granted an autonomous region, and specifically regarding environmental resource utilization and protection, Panama has often failed to adequately consult those people affected by government decisions. For instance, the Naso and Ngöbe peoples live within the buffer zone of La Amistad International Park.[211] As such, their activities have been regulated by the Park's management agency, the National Environmental Authority (ANAM), since its creation in 1988.[212] Similarly to Gabon, there was little consultation prior to La Amistad's designation and management.[213]
Currently, the government is working with private companies to build several hydroelectric dams within the park's buffer zone.[214] The Panamanian government approved environmental impact studies conducted by the companies to construct these projects, has granted concession rights, and continues to push for their completion.[215] Aside from the potential devastating impact these dams will have on La Amistad's biodiversity, in granting the concession rights and approving the construction plans, the government has also violated the Naso and Ngöbe's right to adequate consultation.[216] In July 2008, the World Heritage Committee, the United Nations body charged with ensuring that Panama's management of La Amistad complies with the World Heritage Convention, noted with concern "the absence of an effective participatory management process involving civil society and government authorities."[217] As such, the Naso and Ngöbe have filed a series of legal actions against ANAM and the companies responsible for the dams, including a petition on behalf of the Ngöbe to the Inter-American Commission on Human Rights.[218] One of the main arguments presented by the Naso and Ngöbe has been the failure to consult them on a government action which will drastically affect their right to use their traditional lands and to participate in the decision-making process regarding their communities and their homes.[219]
Panama has thus ignored the Naso and Ngöbe right to consultation prior to conducting a government action, namely granting authorization to begin constructing the hydroelectric dams. In particular, the government has violated its domestic law and the international legal requirement and management norm concerning consultation of indigenous peoples in regards to natural resources and the environment.[220] As of late 2008, Panama was still responding to the Petition filed on behalf of the Ngöbe communities living along the Rio Changuinola before the Inter-American Commission on Human Rights.[221] These dams may provide some temporary jobs for several indigenous individuals, but this comes at a steep price: no consultation, relocation, and loss of traditional lands, culture, and biodiversity. As it stands now, the Naso and Ngöbe continue to fight for their rights.[222] Panama would do well to learn from Gabon's example and abide by its obligations as a signatory to the Declaration on the Rights of Indigenous Peoples.
VI. Conclusion
The indigenous peoples of Gabon, Panama, and the rest of world have a right to an adequate consultation concerning matters which may affect their cultures, communities, and traditional use of their lands and resources. This right must be protected and consultation must be carried out by governments in good faith by providing adequate information to indigenous communities so that they have a meaningful ability to influence decisions which may affect them.[223] This is especially true for decisions concerning lands in which indigenous peoples live.
Conservation organizations have found that without the participation of the communities living near protected areas, conservation goals are not met.[224] Effective environmental protection can only occur by respecting and including those communities living near the areas under conservation management.[225] As such, these organizations have established best management principles for protected area management, including the adequate consultation of indigenous and local communities.[226] If, as is the case, indigenous communities have a right guaranteed by international law to be consulted on any matter affecting the traditional use of their lands and resources, and because good management practice recognizes the need to consult all affected communities that traditionally live in and around protected areas, it follows that international law should recognize the right to consultation for all affected communities, indigenous and non-indigenous.
Meaningful consultation is both a sound management principle and a right which is recognized under customary international law. Therefore, when conservation groups participate in the development of protected area management plans, they should help governments meet their obligations under international environmental and human rights law. Adequately consulting the communities living around national parks and other protected areas prior to reaching any decision or action which may affect those communities is not only a strong conservation management concept, it is required by international law.
* J.D. and Certificate in Environmental and Natural Resources Law, 2008, Northwestern School of Law of Lewis and Clark College; B.A. in Biology and French, 2002, Gonzaga University. The author wishes to thank Prof. John Grant for his advice and guidance on this topic and Linda Barrera for her love and support. The author also wishes to express a debt of gratitude to the incredible communities described in these pages. Their continual efforts to maintain their culture and protect their environment, while seeking improved recognition of their rights, serve as an inspiration to all concerned with environmental conservation and human rights.
[1] See Report of the United Nations Conference on the Human Environment, Stockholm, Swed., June 5-16, 1972, ¶ 6, U.N. Doc. A/CONF.48/14/Rev.1 (recognizing that "a point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences"), available at http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503&l=en.
[2] See Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, 27 U.S.T. 37 (entered into force Dec. 17, 1975), [hereinafter "World Heritage Convention"]; see also Convention on International Trade in Endangered Species of Wild Flora and Fauna, 27 U.S.T. 1087 (entered into force July 1, 1975); United Nations Conference on Environment and Development: Rio Declaration on Environment and Development, June 14, 1992, 31 I.L.M. 874 [hereinafter "Rio Declaration"]; United Nations Conference on Environment and Development: Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818 [hereinafter "Biodiversity Convention"].
[3]Rio Declaration, supra note 2, pmbl. at ¶ 5 (states understood the need to be "working towards international agreements which respect the interests of all and protect the integrity of the global environmental and developmental system"). Id.
[4] A protected area is "an area of land and/or sea especially dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and managed through legal or other effective means." IUCN Commission on National Parks and Protected Areas with the assistance of the World Conservation Monitoring Centre, Guidelines for Protected Area Management Categories, at 7 (1994), available at http://www.iucn.org/dbtw-wpd/edocs/1994-007-En.pdfId. at 1. The IUCN adopted definitions for six categories which are used internationally in the design of specific protected areas. These categories are those managed mainly for:
[hereinafter "IUCN Guidelines"]. The World Conservation Union (IUCN) Commission on National Parks and Protected Areas (now called the World Commission on Protected Areas - WCPA) developed these guidelines pursuant to the IV World Congress on National Parks and Protected Areas in Caracas, Venezuela in 1992.
I Strict Protection (i.e. Strict Nature Reserve / Wilderness Area)
II Ecosystem conservation and recreation (i.e. National Park)
III Conservation of Natural features (i.e. Natural Monument)
IV Conservation through active management (i.e. Habitat/Species Management Area)
V Landscape/seascape conservation and recreation (i.e. Protected Landscape/seascape)
VI Sustainable use of natural ecosystems (i.e. Managed Resource Protected Area)
Id. at 7.
[5] See generally id.; "biodiversity" is often defined as "[t]he abundance, variety and genetic constitution of animals and plants in nature." Stanley I. Dodson, et al., Ecology at 398 (Oxford University Press 1998).
[6] IUCN Guidelines, supra note 4, at 19. A National Park is a
Natural area of land and/or sea, designated to (a) protect the ecological integrity of one or more ecosystems for present and future generations, (b) exclude exploitation or occupation inimical to the purposes of designation of the area and (c) provide a foundation for spiritual, scientific, educational, recreational and visitor opportunities, all of which must be environmentally and culturally compatible. Id.
[7] Jessica Brown & Ashish Kothari, Editorial, Parks, Vol 12, No. 2, 2002, at 1, available at http://cmsdata.iucn.org/downloads/sp_parks12_2.pdf [hereinafter "IUCN PARKS Vol. 12"].
[8] Id.
[9] In fact, "community involvement in protected areas" is now considered one of the five key themes of the World Commission on Protected Areas. Id. Further, in order to be effective, local participation must "yield real benefits for local people." Tigh Geoghegan and Yves Renard, Beyond Community Involvement: Lessons from the Insular Caribbean, Parks, Vol. 12, No. 2, 2002, at 25, available at http://cmsdata.iucn.org/downloads/sp_parks12_2.pdf.
[10] United Nations General Assembly Declaration on the Rights of Indigenous Peoples, Sept. 13, 2007, 46 I.L.M. 1013, available at http://www.un.org/esa/socdev/unpfii/en/drip.html [hereinafter "Indigenous Rights Declaration"]; United Nations Permanent Forum on Indigenous Issues, United Nations Declaration on the Rights of Indigenous Peoples, available at http://www.un.org/esa/socdev/unpfii/en/declaration.html. The drafting of the Declaration was supported by the UN Permanent Forum on Indigenous Issues. United Nations Permanent Forum on Indigenous Issues, Frequently Asked Questions, available at http://un.org/esa/socdev/unpfii/documents/faq_drips_en.pdf.
[11] Indigenous Rights Declaration, supra note 10, at art. 19.
[12] See Conservation International, Biodiversity Hotspots, at http://www.biodiversityhotspots.org/Pages/default.aspx (last visited Feb. 28, 2009); see also World Wildlife Fund, Conservation Science, Global 200 Ecoregions, available at http://www.worldwildlife.org/science/ecoregions/global200.html.
[13] "Species richness" is defined as "[t]he number of species in an area. Species richness counts each species equally, regardless of how abundant it is relative to the other species." Dodson et al., supra note 5, at 408.
[14] Conservation International has defined various criteria which help it determine where to focus its conservation efforts, including habitat loss. Conservation International, Hotspots Defined, at http://www.biodiversityhotspots.org/xp/Hotspots/hotspotsScience/pages/hotspots_defined.aspx (last visited Feb. 28, 2009). For instance, on its website, it states that the idea of hotspots derived from a "seminal paper by Norman Myers in 1988" which "identified ten tropical forest ‘hotspots' characterized both by exceptional levels of plant endemism and by serious levels of habitat loss." Id. (emphasis added).
[15] In Central Africa, even after agriculture was introduced to the forest, crops grown "did not cover more than 40%" of the needs of the farmers and "contributions from the forest, by means of hunting and gathering, remained therefore essential." Jean Pierre Vande weghe, Forests of Central Africa: Nature and Man 247 (Protea Book House 2004). Today, even people living in cities "have kept close ties with the forest world" and many "in fact live or survive mostly from the exploitation of natural resources." Id. at 270.
[16] Didier Devers et al., The Forests of the Congo Basin: State of the Forest 2006 127 (Congo Basin Forest Partnership 2006), available at http://carpe.umd.edu/resources/Documents/THE_FORESTS_OF_THE_CONGO_BASIN_State_of_the_Forest_2006.pdf; see also Jason Jacques Paiement, The Tiger in the Turbine: Indigenous Rights and Resource Management in the Naso Territory of Panama 19 (February 2007) (unpublished Ph.D. dissertation, McGill University), at http://www.mcgill.ca/files/standd/JPaiementPhDFinal.pdf (last visited Feb. 28, 2009).
[17] See World Wildlife Fund, Atlantic Equatorial Coastal Forests (2001), available at http://www.nationalgeographic.com/wildworld/profiles/terrestrial/at/at0102.html; World Wildlife Fund, Isthmian-Atlantic moist forests (2001), available at http://www.worldwildlife.org/wildworld/profiles/terrestrial/nt/nt0129_full.html; Conservation International, Mesoamerica (2007), available at http://www.biodiversityhotspots.org/xp/hotspots/mesoamerica/Pages/default.aspx.
[18] Sophie Warne, Gabon São Tomé and Príncipe: The Bradt Travel Guide 3 (Bradt Travel Guides Ltd 2003).
[19] Gabonese Republic, Investing in Gabon, at http://www.legabon.org/uk/invest.php?Id=1&Sousrub=1 (last visited Feb. 28, 2009); but see Warne, supra note 18, at 17 (stating that the forest cover is actually closer to 75%).
[20] Encyclopedia of the Nations, Gabon - Ethnic Groups, at http://www.nationsencyclopedia.com/Africa/Gabon-ETHNIC-GROUPS.html (last visited Feb. 28, 2009); Warne, supra note 18, at 4. The Gabonese government lists a population of 1,383,000. Gabonese Republic, Key Indicators, at http://www.legabon.ga/indic.php?Id=0 The Peace Corps Welcomes You to Gabon 11 (Peace Corps Publication March 2002) [hereinafter "Peace Corps Welcomes You to Gabon"].
(last visited Feb. 28, 2009). For a brief discussion of Gabonese history, see
The Gabonese are descendants of numerous Bantu ethnic groups that migrated to the area some 700 years ago. Little is known of Gabon in the pre-colonial period, but accounts by missionaries, explorers, and researchers suggest a rich cultural heritage.
Gabon's first European visitors were Portuguese merchants who arrived in the 15th Century. Dutch, British, and French traders came in the 16th century. In 1849, the French captured a slave ship and released passengers at the mouth of the Como River. The slaves named their settlement Libreville, "place of liberation." Id.
[21] Peace Corps Welcomes You to Gabon, supra note 20; Central Intelligence Agency, The Work Factbook, Gabon, available at https://www.cia.gov/library/publications/the-world-factbook/geos/gb.html [hereinafter "World Factbook"].
[22] World Factbook, supra, note 21.
[23] Gabonese Republic, Investing in Gabon, at http://www.legabon.org/uk/invest.php?Id=6&Sousrub=2 (last visited Feb. 28, 2009).
[24] Gabonese Republic, Investing in Gabon, at http://www.legabon.org/uk/invest.php?Id=6&Sousrub=1 (last visited Feb. 28, 2009); OneWorld.net, Gabon Sets Aside 10 Percent of Land for Parks, http://us.oneworld.net/places/gabon/-/article/gabon-sets-aside-10-percent-land-parks (last visited Feb. 28, 2009).
[25] Gabonese Republic, supra note 23.
[26] Absolute Astronomy, Loango National Park, at http://www.absoluteastronomy.com/topics/Loango_National_Park (last visited Feb. 28, 2009). WWF counts "30 small villages and settlements with populations ranging from 15 to 350 people" within and around in the Gamba Complex. The Gamba Complex contains Loango National Park. Among these villages, Sette Cama is in close proximity to Loango National Park. Bas Verhage et al., Four Years of Marine Turtle Monitoring in the Gamba Complex of Protected Areas, Gabon, Central Africa 2002-2006 10 (World Wide Fund for Nature), available at http://assets.panda.org/downloads/wwfgabon_marine_turtle_report_four_years.pdf; Unusual Destinations, Sette Cama Lodge, at http://www.unusualdestinations.com/gabon/itineraries/article/1189/sette-cama-l.html (last visited Feb. 28, 2009). Some "500 people [also] live in the park's vicinity." Wildlife Conservation Society, Loango National Park - Operation Loango, at http://www.wcs.org/globalconservation/Africa/gabon/loango (last visited Feb. 28, 2009).
[27] See Devers et al., supra note 16, at 116, 125, 207; Biotopic, Marine Turtle Monitoring in the Gamba Complex, Gamba - Linking Research and Protection to Innovative Sustainable Livelihood Development 3, available at http://www.biotopic.org/Downloads/ProjProp0407.pdf; see generally Carlton Ward Jr. et al., The Edge of Africa (Hylas Publishing Nov. 25, 2003).
[28] Verhage et al., supra note 26, at 5..
[29] Telephone interview with Jean Pierre BAYET, Environmental Education and Outreach, WWF Gabon and indigenous Balumbu, in Sette Cama, Gabon (Oct. 9, 2007) [hereinafter "Bayet Interview"] (on file with author). As a Balumbu, Mr. BAYET has in-depth, personal knowledge of the Balumbu culture and history. According to him, the Ndougou Lagoon is home to Balumbu and Bavili people, although the Balumbu live there in greater numbers. Id.
[30] Devers et al., supra note 16, at 126.
[31] Id. at 39; Vande weghe, supra note 15, at 277.
[32] Vande weghe, supra note 15, at 209. "From 1550, the Portuguese had the idea of importing new plants from America, more productive than those used in Central Africa: cassava . . . , maize..., peanuts..., beans..., and sweet potatoes.... Within half a century, these plants were adopted in all the coastal regions." Id. at 255.
[33] Devers et al., supra note 16, at 152.
[34] Vande weghe, supra note 15, at 270 (generally describing Central African farming techniques); see also Devers et al., supra note 16, at 127.
[35] Vande wehge, supra note 15, at 14, 209. Commercial agriculture has remained relatively uncommon in southwestern Gabon and the area around Loango National Park. Devers et al., supra note 16, at 127. One reason for this may be that around towns, "agriculture is mainly reserved for indigenous ethnic groups; customary law restricts land tenure opportunities for immigrants, who form the bulk" of the towns' populations. Id.
[36] See Devers et al., supra note 16, at 130-32.
[37] Convention on Biological Diversity, Rapport National Biodiversite 28, available at http://www.cbd.int/doc/world/ga/ga-nr-01-fr.pdf.
[38] Id. at 24-27.
[39] Loi n° 16-01 du décembre 2001, at art. 215, available at http://www.legabon.org/code_forestier.pdf [hereinafter "Gabon Forestry Code"].
[40] World Wide Fund for Nature, Where We Work, Africa, Solutions by Country, Gabon, Solutions, Gamba Complex, Area, Threats, available at http://www.panda.org/what_we_do/where_we_work/project/projects_in_depth/gamba/area/threats/.
[41] Id.
[42] Bayet Interview, supra note 29.
[43] See Carnet de Voyage, Rites et Danses, Ministère de la Culture, des Arts, chargé de l'éducation populaire du Gabon, at http://www.legabon.org/livre/carnet/index_livre.html (last visited Mar. 1, 2009).
[44] Bayet Interview, supra note 29. The Balumbu, and Bavili, as well as many other Bantu people of Africa, keep very strong ties to their traditions and easily identify themselves from other ethnicities. Id. See also André Raponda-Walker, Contes Gabonais 45-62 (Editions Présence Africaine 1967) (following his study of various oral histories and fables around Gabon, Raponda-Walker published a seminal work detailing fables from different ethnic groups in Gabon). Many Balumbu fables recount tradition in relation to different animals and their relationships to each other. Id.
[45] Bayet Interview, supra note 29.
[46] Vande weghe, supra note 15, at 277. The decision-making process of Balumbu villages is difficult to understand because of the national requirement to have government representatives, who are also called village chiefs. Vande weghe identifies this difficulty on a general scale as follows:
There are chiefs in most of these Bantu communities but there is a clear disparity between official representatives, notably the village chiefs, and the real leaders. The official chiefs often have only a role of representation, while the real leaders are those who handle internal power... Leaders emerge and succeed each other which results in a fluidity of the political regime difficult to identify. Id.
[47] Devers et al., supra note 16, at 126. It is difficult to affirm the exact history of the Bavili in Gabon. François Gaulme, Le Pays de Cama: Un Ancien Etat Côtier du Gabon et ses Origines 114-116 (Karthala 1981) (analysis of ethno-linguistic studies describing the possible origins of the Bavili).
[48] Devers et al., supra note 16, at 126.
[49] Id. at 127.
[50] Id.
[51] See discussion, supra note 46.
[52] See generally Raponda-Walker, supra note 29, at 117-136.
[53] Some descendants of the Kingdom of Loango maintain that the Kingdom still exists between Cabinda, the Republic of Congo, the Democratic Republic of Congo, and Gabon. See Site Officiel du Royaume Loango, at http://www.royaumeloango.org/ (last visited Mar. 1, 2009).
[54] Bayet Interview, supra note 27 (explaining that the Bavili, like the Balumbu, are a distinct group and recognize themselves as such).
[55] See generally Panama Canal Authority website, at http://www.pancanal.com/eng/index.html (last visited Mar. 1, 2009).
[56] See generally John Lindsay-Poland, Emperors in the Jungle: The Hidden History of the U.S. in Panama 12-25, 205 (Duke University Press 2003). Spanish rule until 1821, Colombian rule until 1903, US Military influence until 1999. Id.
[57] The 2000 Census recorded 2,839,177 inhabitants. Republica de Panamá, Información Sobre Panamá, available at http://www.pa/secciones/informacion/index.html [hereinafter "Panama Government website"]. In 1900, Panama's population consisted of Whites, Mestizo peasants, poor Blacks or Mulatos, and indigenous populations. However, indigenous groups were "uncounted in nineteenth-century censuses." Lindsay-Poland, supra note 56, at 12. See also Native Planet, The Kuna Indigenous People of Panama, at http://www.nativeplanet.org/indigenous/kuna/kuna.htm (last visited Mar. 10, 2009).
[58] Panama Government website, supra note 57.
[59] Ministerio de Economía y Finanzas, Informe Económico Anual 120 (República de Panamá 2006), available at www.mef.gob.pa/informes/Informe%20Eco%20Anual%202006%20.pdf.
[60] See The Nature Conservancy, About Panama, at http://www.nature.org/wherewework/centralamerica/panama/work/art19165.html (last visited Mar. 1, 2009).
[61] Autoridad Nacional del Ambiente, Parques Nacionales de Panamá, at http://www.anam.gob.pa/areas%20protegidas/sinap.htm (last visited Mar. 1, 2009).
[62] The Nature Conservancy, La Amistad/Bocas del Toro, at http://www.nature.org/wherewework/centralamerica/panama/work/art8692.html (last visited Mar. 1, 2009).
[63] The World Conservation Union, World Heritage Nomination - IUCN Summary: La Amistad
International Park and Volcan Baru National Park (Panama) 71 (April 1990), available at
http://whc.unesco.org/archive/advisory_body_evaluation/205.pdf [hereinafter "IUCN Summary"]. See also Autoridad Nacional del Ambiente, Parque Internacional La Amistad, at http://www.anam.gob.pa/areas%20protegidas/parque_la_amistad.htm (last visited Mar. 1, 2009).
[64] Paiement, supra note 16, at 17. The Naso indigenous people were commonly known "until fairly recently . . . as ‘Teribe.'" Id. at 18; see also Panama Government Website, supra note 57.
[65] Id. at 55.
[66] Id. at 55-58. This historical synopsis was gathered from the Paiement PhD thesis, which used "secondary sources of relevant historical information about the Naso people and their territory to outline the major ecological, technological and socio-cultural features of life in the Naso region." Id. at 17.
[67] See Erica Thorson, Linda Barrera, and Jason Gray, Petition to the World Heritage Committee Requesting Inclusion of Talamanca Range-La Amistad Reserves/La Amistad National Park on the List of World Heritage in Danger 18 (International Environmental Law Project 2007) (generally discussing the fact that Naso indigenous lands are contiguous to the Park), available at http://law.lclark.edu/org/ielp/objects/LaAmistadPetition_4-23-07_english.pdf [hereinafter "La Amistad World Heritage Petition"].
[68] Paiement, supra note 16, at 19.
[69] Id. at 19, 102; see also Sarah Cordero, et. al., Análisis de Costo Beneficio de Cuatro Proyectos Hidroeléctricos en la Cuenca Changuinola-Teribe 50 (Alianza para la Conservación y el Desarrollo, Asociación ANAI, Conservation Strategy Fund, The Nature Conservancy, Conservation Internacional, Critical Ecosystem Partnership Fund 2006), available at http://conservation-strategy.org/files/Changuinola%20Final.pdf.
[70] Paiement, supra note 16, at 102.
[71] Id. at 105.
[72] Id. at 84. "The Naso are proud to be among the last peoples in the Americas still led by a monarch." Id.
[73] A current controversy exists as to the actual King: Tito Santana is recognized by the Panamanian government as the Naso King, but the people have elected Valentin Santana to replace Tito. Id. at 139.
[74] Id. at 84-85.
[75] Paiement, supra note 16, at 85.
[76] The majority of households in the Naso villages speak both Spanish and Naso. Id. at 81.
[77] In fact, Naso traditional healers have organized into an association called the Asociación de Practicantes de Medicina Tradicional Naso (ASOMETRAN). Seeavailable at http://www.cepf.net/ImageCache/cepf/content/pdfs/final_2easometran_2epdf/v1/final.asometran.pdf.
Asociación de Practicantes de Medicina Tradicional Naso, Conserving the Forests of La Amistad International Park through the Promotion of Traditional Medicine in Three Communities of Naso Ethnicity: Final report (Critical Ecosystem Partnership Fund 2005),
[78] See Paiement, supra note 16, at 13 (explaining the importance of the jaguar in Naso mythology). See also DVD: Parque Internacional La Amistad: A World Heritage Site at Risk (A film by Linda Barrera and Jason Gray 2007) (a short documentary featuring the Naso people and highlighting the "Tiger" or "Jaguar" dance and the "Snake" dance) (on file with author).
[79] Paiement, supra note 16, at 78.
[80] Cordero et al., supra note 69, at 27.
[81] Id. at 16.
[82] See Paiement, supra note 16, at 53 (paraphrasing a study carried out by Gordon which describes how the Ngöbe have traditionally "incorporated tree gardens and the nurture of wildlife" in their agriculture practices); see also John R. Bort and Philip D. Young, The Ngöbe of Western Panama, in Endangered Peoples of Latin America: Struggles to Survive and Thrive 124 (Susan C. Stonich ed., Greenwood Press 2001).
[83]Bort and Young, supra note 81, at 124..
[84] Cordero et al., supra note 69, at 17.
[85] Kin groups, as the "the extended group of relatives, are the organizational basis of Ngöbe society." Bort and Young, supra note 82, at 124-25.
[86] Id. at 125, 131.
[87] See Benjamin Shors, Two Worlds Collide: Panama Farmers Resist Hydroelectric Projects: Northern Panama is pushing to develop hydroelectric projects where poor, indigenous farmers have lived for generations, MIAMI HERALD, Oct. 2, 2007, at 1C.
[88] Bort and Young, supra note 81, at 125 (briefly describing several aspects of Ngöbe oral traditions). The Ngöbe oral tradition describes "great [leaders] of the past who exerted a considerable influence over areas within the [Ngöbe] territory." The stories are "based on man's personal characteristics, such as generosity, [and] wisdom in settling disputes." Id.
[89] See S. James Anaya, Indigenous Peoples in International Law 3 (Oxford University Press 2d ed. 2004) (explaining the strength of indigenous peoples' roots to these lands); Ellen L. Lutz, Recognizing Indigenous Peoples' Human Rights, Cultural Survival Voices, Vol. 5.1, available at http://www.culturalsurvival.org/ourpublications/voices/article/recognizing-indigenous-peoples-human-rights.
[90] Lutz, supra note 89.
[91] Indigenous Rights Declaration, supra note 10.
[92] See generally, World Commission on Protected Areas, Indigenous and Local Communities and Protected Areas: Towards Equity and Enhanced Conservation - Guidance on policy and practice for Co-managed Protected Areas and Community Conserved Areas, Best Practice Protected Area Guidelines Series No. 11 (World Conservation Union 2004), available at http://www.iucn.org/dbtw-wpd/edocs/PAG-011.pdf [hereinafter "WCPA No. 11"].
[93] Anaya, supra note 89, at 3. The "term refers broadly to the living descendants of preinvasion inhabitants of lands now dominated by others." Id. A common non-legal definition of the word indigenous is "born in a region." The Oxford Essential Dictionary: American Edition 300 (Oxford University Press 1998).
[94] Anaya, supra note 89, at 3.
[95] Alexandra Xanthaki, Indigenous Rights and United Nations Standards: Self -Determination, Culture and Land 49 (Cambridge University Press 2007). "The ILO was created in 1919, as part of the Treaty of Versailles that ended World War I, to reflect the belief that universal and lasting peace can be accomplished only if based on social justice." International Labour Organization, Origins and History, at http://www.ilo.org/global/About_the_ILO/Origins_and_history/lang--en/index.htm (last visited Mar. 10, 2009).
[96] Xanthaki, supra note 95, at 49. This Committee drafted standards for protecting indigenous workers. Id.
[97] Id.; see also Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations, No. 107, 328 U.N.T.S. 247, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C107 [hereinafter "Convention No. 107"].
[98] Xanthaki, supra note 95, at 49. However, Convention 107 currently only has 18 ratifying members; see ILOLEX, Convention No. 107, at http://www.ilo.org/indigenous/Conventions/no107/lang--en/index.htm.
[99] Xanthaki, supra note 95, at 50.
[100] Convention No. 107, supra note 97, at art. 1.
[101] Xanthaki, supra note 95, at 93 (citing International Labour Organization, 40th Session, Report VI(1), p. 8).
[102] Convention No. 107, supra note 97, at art. 2.
[103] Id. at art. 1.
[104] It must be noted however, that the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), often "interprets the provisions in a flexible manner" in order to redress the concerns of indigenous organizations over Convention No. 107. Xanthaki, supra note 95, at 52, 53.
[105] Convention Concerning Indigenous and Tribal Peoples in Independent Countries, ILO Convention No. 169, June 27, 1989 (entered into force Sept. 5, 1991), 72 ILO Official Bull. 59, 28 I.L.M. 1382, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169 [hereinafter "Convention No. 169"].
[106] Xanthaki, supra note 95, at 70.
[107] Id. at 71.
[108] Convention No. 169, supra note 105, at art. 1.
[109] Id. (emphasis added).
[110] However, despite increased indigenous participation in Convention No. 169, as opposed to Convention No. 107, the participation was still limited. Xanthaki, supra note 94, at 68.
[111] See Lutz, supra note 89. "This is deliberate. It has proved impossible to achieve a precise definition that takes in all the various types of peoples who self-identify as indigenous and are accepted by other indigenous peoples." Id.
[112] Convention No. 169, supra note 104, at art. 1.
[113] Xanthaki, supra note 94, at 72.
[114] See Bayet Interview, supra note 27 (explaining that the Balumbu and Bavili are distinct groups and recognize themselves as such).
[115] Id. (explaining that they use the French words autochtone and indigène to describe themselves). Autochtone is translated as "native" and indigène is translated as "indigenous." D.C. Van Hoof et al., Elsevier's Legal Dictionary in English, French, Dutch and Spanish 656 (2001); Robert Herbst & Alan G. Readett, Dictionary of Commercial, Financial and Legal Terms 527 (4th ed. 1990).
[116] Bayet Interview, supra note 27;see also Devers et al., supra note 16, at 126-127.
[117] Bayet Interview, supra note 27.
[118] Devers et al., supra note 16, at 127.
[119] See id; see also Bayet Interview, supra note 27.
[120] Raponda-Walker, supra note 29, at 45-60, and 117-137.
[121] Vande weghe, supra note 15, at 277.
[122] Lutz, supra note 89.
[123] Anaya, supra note 89, at 71 (translation from the Declaración de Colombia en Nombre del Grupo Latinoamericano y del Caribe en la Conmemoración del Año Internacional de las Poblaciones Indígenas (Tema 8), Conferencia Mundial de Derechos Humanos (Jun. 18, 1993)).
[124] Id.
[125] Panama Government website, supra note 57.
[126] Resolución No. 7 of the Pueblo Naso, at Bonyic (Oct. 21, 2007) (on file with author); Letter from Pueblo Ngöbe to Accionistas de AES (July 19, 2007), available at http://www.biologicaldiversity.org/campaigns/panama_rainforest_and_rivers/pdfs/Ngobe-Letter.pdf.
[127] Paiement, supra note 16, at 19; Bort and Young, supra note 82, at 124-125.
[128] Paiement, supra note 16, at 102; Cordero et al., supra note 69, at 16.
[129] Paiement, supra note 16, at 13, 81; Bort and Young, supra note 82, at 125.
[130] Paiement, supra note 16, at 84; Bort and Young, supra note 82, at 124-125.
[131] Xanthaki, supra note 94, at 49 (discussing the 1926 International Labour Organization's Committee of Experts on Native Labour).
[132] Convention No. 107 includes some obligations on member states which have been interpreted to include rights. For instance, the CEACR (see supra note 103) has expanded the scope of Article 5(a), which requires that governments "seek the collaboration of" indigenous populations when applying the Convention, to mean that "consultation with indigenous peoples affected by a project should be carried out throughout the various phases of the project rather than ‘only at its inception.'" Xanthaki, supra note 94, at 60; Convention No. 107, supra note 96, at art. 5(a); Comments made by the Committee of Experts on the Application of Conventions and Recommendations (from 1990), Direct Request concerning Convention No. 107, Brazil, published 1995, para. 13, available at http://webfusion.ilo.org/public/db/standards/normes/appl/appl-displayAllComments.cfm?hdroff=1&ctry=0090%20&conv=C107&Lang=EN#1990.
[133] Convention No. 107, supra note 96, at arts. 11 and 12.
[134] Convention No. 169, supra note 104, at arts. 7(1), 8(1), 12, and 14(1).
[135] Id. at arts. 15(1), 16(1), and 28(1).
[136] Xanthaki, supra note 94, at 75; Convention No. 169, supra note 104, at art. 4.
[137] Convention No. 169, supra note 104, at arts. 4(2), 6(1)(a)-(b), 7(1) and (4), 15(1), 16(2), 17(2), 22(3), 23(1), 27(1), and 28(1).
[138] Indigenous Rights Declaration, supra note 10, at arts. 1, 5, 7(2), 8(1), and 10.
[139] Id. at arts. 11(1), 13(1), 18, 21(1), 23, and 26.
[140] Id. at arts. 3, 33(1), 6, and 29(1).
[141] Id. at arts. 18 and 19.
[142] Convention No. 169, supra note 104, at art. 28(1).
[143] Anaya, supra note 89, at 97. "No discussion of indigenous peoples' rights under international law is complete without a discussion of self-determination, a principle of the highest order within the contemporary international system." Id.
[144] Id. at 99.
[145] Id.
[146] United Nations Charter art. 1, para. 2 and art. 55, June 26, 1945, 59 Stat. 1031, (entered into force Oct. 24, 1945), available at http://www.un.org/aboutun/charter/pdf/uncharter.pdf.
[147] Id. at art. 1, para. 2.
[148] International Covenant on Civil and Political Rights art. 1(1), 999 U.N.T.S. 171 (entered into force March 23, 1976), available at http://www1.umn.edu/humanrts/instree/b3ccpr.htm; International Covenant on Economic, Social and Cultural Rights art. 1(1), 993 U.N.T.S. 3 (entered into force Jan. 3, 1976), available athttp://www2.ohchr.org/english/law/cescr.htm.
[149] Anaya, supra note 89, at 100.
[150] Xanthaki, supra note 95, at 140-141.
[151] Vienna Convention on the Law of Treaties art. 31(1), 1155 U.N.T.S. 331, opened for signature May 23, 1969, (entered into force on Jan. 27, 1980), available athttp://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf [hereinafter "Vienna Convention on the Law of Treaties"].
[152] Anaya, supra note 89, at 103.
[153] Xanthaki, supra note 94, at 146, 150-152. "Authors that support the unqualified recognition of indigenous self-determination also agree that independence is not the solution." Id. at 168.
[154] Lutz, supra note 89. "Self-determination relates to autonomy, not the right to secede from the state. It means the right to freely determine their political status and freely pursue their economic, social, and cultural development inside the country in which they live." Id.
[155] Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.), available at http://scc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.pdf.
[156] Indigenous Rights Declaration, supra note 10, at arts. 3 and 4.
[157] On September 13, 2007, the final vote of the 61st General Assembly Plenary of the United Nations for the Indigenous Rights Declaration was 143 nations in favor, 4 against, with 11 abstentions. U.N. Dept. of Pub. Info., General Assembly Adopts Declaration on Rights of Indigenous Peoples; ‘Major Step forward' Towards Human Rights for All, Says President, GA/10612 (Sept. 12, 2007) , available at http://www.un.org/News/Press/docs/2007/ga10612.doc.htm [hereinafter "Indigenous Declaration Vote"].
[158] Anaya, supra note 89, at 156.
[159] Id. "The underlying objective of the self-government norm" therefore, "is that of allowing indigenous peoples to achieve meaningful self-determination . . . consultative arrangements that reflect their specific cultural patterns and that permit them to be genuinely associated with all decisions affecting them on an ongoing basis." Id.
[160] Id. at 153.
[161] Id. at 154.
[162] Convention No. 169, supra note 104, at art. 6(1)(a).
[163] Id. at art. 6(2).
[164] Id. at art. 15.
[165] Indigenous Rights Declaration, supra note 10, at art. 19.
[166] Id.; see also Vienna Convention on the Law of Treaties, supra note 151, at art. 26.
[167] See generally Xanthaki, supra, note 94, at 107.
[168] Vienna Convention on the Law of Treaties, supra note 150, at art. 26. "Ratification of an international convention (treaty) is a sovereign act of a State. By signing an international legal document the government agrees to be bound by the contents of the treaty." Project to Promote ILO Policy on Indigenous and Tribal Peoples, ILO Convention on Indigenous and Tribal Peoples, 1989 (No. 169): A Manual 70 (International Labour Organization 2003), available at http://www.ilo.org/public/libdoc/ilo/2003/103B09_345_engl.pdf [hereinafter "ILO Convention No. 169 Manual"]. There are currently seventeen states that have ratified Convention No. 169. Id. at 103.
[169] Alan Boyle and Christine Chinkin, The Making of International Law 41 (Oxford University Press 2007).
[170] Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 36 (Oct. 16), available at http://www.icj-cij.org/docket/files/61/6195.pdf.
[171] United States v. Paquete Habana, 175 U.S. 677, 700 (1900); see also Statute of the International Court of Justice art. 38, Oct. 24, 1945, 59 Stat. 1055, 33 U.N.T.S. 993 (stating the sources of international law: treaties, custom, general principles of law, and judicial decisions and teaching).
[172] Indigenous Declaration Vote, supra note 156.
[173] United Nations Member States, available at http://www.un.org/members/list.shtml.
[174] Ley No. 41 de 1 de julio de 1998, Ley General de Ambiente, at art. 103, available at http://www.mef.gob.pa/Cope/pdf/LEY%2041%20DE%201998_ANAM.pdf.
[175] See generally Commission on Human Rights, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, Mr. Rodolfo Stavenhagen, Feb. 16, 2006, UN Doc. E/CN.4/2006/78, at 8-22 (including Venezuela, Ecuador, Colombia, Guatemala, and Brazil), available at http://www.un.org/Docs/journal/asp/ws.asp?m=E/CN.4/2006/78 [hereinafter "Stavenhagen report"].
[176] Convention No. 107 has 18 members, including Panama. ILOLEX, Convention No. 107, available at http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?(C107); Convention No. 169 has 20 members, ILOLEX, Convention No. 169, available at http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?(C169); the Biodiversity Convention has 191 members, of which 168 have ratified it (including Gabon and Panama), Convention on Biological Diversity, List of Parties, available at http://www.cbd.int/information/parties.shtml; and the Convention on Access to Information has 40 participants, United Nations Economic Commission for Europe, Multilateral Treaties deposited with the Secretary General, Convention on Access to Information, Participants, available at http://www.unece.org/env/pp/ctreaty.htm.
[177] Indigenous Rights Declaration, supra note 10, at art. 19.
[178] Convention No. 107, supra note 96, at art. 5.
[179] ILO Convention No. 169 Manual, supra note 167, at 15.
[180] Biodiversity Convention, supra note 2, at art. 8(j).
[181] Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Oct. 10, 2001, 38 I.L.M 517, available at http://www.unece.org/env/pp/documents/cep43e.pdf.
[182] Permanent Forum on Indigenous Issues, Analysis and state of implementation of recommendations of the Permanent Forum on Indigenous Issues at its first three sessions, Mar. 31, 2006, E/C.19/2006/9, at 5, available at http://www.un.org/Docs/journal/asp/ws.asp?m=E/C.19/2006/9.
[183] Programme of Activities for the International Decade of the World's Indigenous Peoples, U.N. Doc. A/RES/50/157 (1995), available at http://www1.umn.edu/humanrts/resolutions/50/157GA1995.html.
[184] Programme of Activities for the International Decade of the World's Indigenous Peoples (1995-2004) (para.4), Fact Sheet No. 9 (Rev. 1), The Rights of Indigenous Peoples (Office of the High Commissioner for Human Rights 1995), available at http://www.unhchr.ch/html/menu6/2/fs9.htm. "An objective of the Decade is the promotion and protection of the rights of indigenous people and their empowerment to make choices which enable them to retain their cultural identity while participating in political, economic and social life, with full respect for their cultural values, languages, traditions and forms of social organization." Id.
[185] Anaya, supra note 89, at 155.
[186] Id; see also World Bank, Operational Directive O.D. 4.20 on Indigenous Peoples, para. 8 (Sept. 1991), available at http://www.ifc.org/ifcext/enviro.nsf/AttachmentsByTitle/pol_IndigPeoples/$FILE/OD420_IndigenousPeoples.pdf; but see Country Evaluation and Regional Relations Operations Evaluation Department Report No. 25754 Implementation of Operational Directive 4.20 on Indigenous Peoples: An Evaluation of Results 2 (World Bank 2003) (finding that only thirty-eight percent of the forty-seven projects evaluated had satisfactory results for indigenous peoples), available at http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2003/05/01/000160016_20030501182633/Rendered/PDF/257541OD04.20.pdf.
[187] Anaya, supra note 89, at 154. "This requires governments to fully engage indigenous peoples in the discussions about what the outcomes of those decisions should be before they are taken." Id.
[188] Stavenhagen report, supra note 174, at 22.
[189] See also Xanthaki, supra note 95; Lutz, supra note 89.
[190] Indigenous Rights Declaration, supra note 10, at art. 19.
[191] In 2003, at the Vth World Parks Congress in Durbin, South Africa, participants from around the world understood that "successful implementation of conservation programs can only be guaranteed on a long term basis when there is consent for and approval by indigenous peoples among others," and recognized "the rights of the indigenous peoples concerned to participate effectively in the management of protected areas" and "to be consulted on any decision which affects their rights." World Parks Congress Recommendation 5.24 on Indigenous Peoples and Protected Areas 1-2 (IUCN Vth World Parks Congress in Durban, South Africa 2003), available at http://www.earthlore.ca/clients/WPC/English/grfx/recommendations/PDFs/r24.pdf [hereinafter "Vth World Parks Congress"].
[192] See WCPA No. 11, supra note 92, at 41.
[193] Id. (discussing technical management activities such as zoning and the recommendation to consult relevant communities).
[194] IUCN PARKS Vol. 12, supra note 7, at 1. See also WCPA No. 11, supra note 92, at 12 (noting the importance of indigenous participation for "management effectiveness").
[195] Gabon Forestry Code, supra note 38, at art. 2.
[196] The Conseil National des Parcs Nationaux (CNPN) was created in 2002. Devers et al., supra note 16, at 146. More recently, the CNPN has evolved into a National Parks Agency, or the ANPN. E-mail from Augustin Mihindou Mbina, Conservateur du Parc National de Loango Sette Cama, Agence Nationale des Parcs Nationaux to Jason Gray (Aug. 6, 2008) (on file with author) (explaining that the CNPN has worked under a new National Parks law to create the Agence Nationale des Parcs Nationaux with financial assistance from the World Bank and the European Union).
[197] Gabonese Republic, Investing in Gabon, at http://www.legabon.org/uk/invest.php?Id=6&Sousrub=3 (last visited Feb. 27, 2009).
[198] See Plan de Gestion du Parc National de Loango, Conseil National des Parcs Nationaux (Jan. 2007) (on file with author) [hereinafter"Loango Management Plan"]. This plan was developed collaboratively by local communities, international and national conservation organizations, and government officials; Telephone Interview with Bas Huijbregts, Principal Technical Advisor, WWF Gabon, in Gamba, Gabon (Nov. 11, 2008) [hereinafter "Huijbregts Interview"].
[199] In fact, President El Hadj Omar Bongo Ondimba had barely consulted his own government, let alone the indigenous communities living near the newly designated thirteen national parks in Gabon. See generally David Quammen, Saving Africa's Eden, National Geographic, Sept. 2003.
[200] Michael M. Cernea and Kai Schmidt-Soltau, Biodiversity Conservation versus Population Resettlement: Risks to Nature and Risks to People 9 (Paper presented at The International Conference on Rural Livelihoods, Forests, and Biodiversity at Bonn, Germany, May 19-23, 2003) (study concerning potentials impact of national parks on local populations, including Loango National Park in Gabon), available at http://www.cifor.cgiar.org/publications/corporate/cd-roms/bonn-proc/pdfs/papers/T4_FINAL_Cernea.pdf. While the study effectively highlights potential risks to communities living in and around national parks, it overemphasizes the risk of forced displacement, at least for Gabon. See World Wide Fund for Nature, Community Development, at http://www.panda.org/about_wwf/where_we_work/africa/where/gabon/wwf_gabon_our_solutions/gamba/our_solutions/community_development/index.cfm (last visited Feb. 12, 2009) [hereinafter "WWF Gabon Community Development website"].
[201] In fact, the Loango Management Plan holds as a high priority theme the active participation of local communities in the Park's management. Loango Management Plan, supra note 198, at 63, 68, 82. Moreover, the Plan requires management authorities to ensure that "Loango National Park contributes to the development of local communities" and to continue "promoting collaboration between park administration and local communities." Id. at 33, 35. WWF writes that the management plan seeks to "ensure that local people are aware of the changes taking place, and have an active part in affecting and participating in these changes." WWF Gabon Community Development website, supra note 200; see also Huijbregts Interview, supra note 198 (explaining that WWF continues working closely with the local communities living on the border of Loango National Park).
[202] See generally Hans van de Veen, National Parks and Powerful Interests: Preparing Gabon's Gamba Complex for an Uncertain Future 6, 18 (DGIS-WWF Tropical Forest Porfolio Nov. 2003), available at http://assets.panda.org/downloads/gamba2de.pdf.
[203] WWF Gabon Community Development website, supra note 200.
[204] Id. See also Huijbregts Interview, supra note 198.
[205] Gabonese Republic, Investing in Gabon, at http://www.legabon.org/uk/invest.php?Id=6&Sousrub=3 (discussing the Congo Basin Forest Partnership in which the United States pledged to invest $53 million for natural reserves in Central Africa between 2002 and 2005) (last visited Feb. 27, 2009).
[206] Mike Chaveas, et al., Mission d'Assistance Technique au Gabon par l'USDA Forest Service: Appui au Conseil National des Parques Nationaux (CNPN), Date de mission: du 16 au 30 juin 2005 18 (USDA Forest Service June 2005), available at http://carpe.umd.edu/resources/Documents/USFS_Gabon_Loango_June2005_FR.pdf.
[207] Id. at 10 (draft zoning map). See also Huijbregts Interview, supra note 198.
[208] Loango Management Plan, supra note 198, at 55. See also Huijbregts Interview, supra note 198.
[209] Xanthaki, supra note 94, at 60.
[210] Panama Government website, supra note 57.
[211] La Amistad World Heritage Petition, supra note 67, at 18, 20.
[212] In 1994, all protected areas were managed by the Instituto Nacional de Recursos Naturales Renovables (INRENARE), which later became the Autoridad Nacional del Ambiente (ANAM). Ley 1 de 3 de Febrero de 1994, Legislación Forestal de la Republica de Panamá, available at http://www.anam.gob.pa/normasambientales/ley1de3defebrerode1994.htm. Currently, protected areas are managed by the Dirección de Áreas Protegidas y Vida Silvestre of ANAM. Autoridad Nacional del Ambiente, Dirección de Áreas Protegidas y Vida Silvestre, at http://www.anam.gob.pa/areas%20protegidas/sinap.htm (last visited Mar. 1, 2009). Panama designated La Amistad National Park in 1988. Resolución de JD-021-88 de 2 de septiembre de 1988, published in the Gaceta Oficial No. 21,129 de 6 septiembre de 1988 (establishing the Park), available at http://www.anam.gob.pa/Biodiversidad/documentos%20legales_archivos/legal/2pn011.pdf. La Amistad National Park became part of La Amistad International Park when the World Heritage Committee combined protected areas in Panama and Costa Rica to form one World Heritage site in 1990. United Nations Environment Program-World Heritage Monitoring Centre, World Heritage Sites Description, Talamanca Range-La Amistad Reserves/La Amistad National Park of Costa Rica & Panama 1, available at http://www.unep-wcmc.org/sites/wh/pdf/Talamanca%20-%20La%20Amistad.pdf.
[213] Paiement, supra note 16, at 125 (explaining that the Naso "played only a marginal role" in the development of a management plan for La Amistad International Park). However, the management plan does state that indigenous values should be respected. Plan de Manejo Parque Internacional La Amistad, Autoridad Nacional del Ambiente de Panamá 13 (2004), available at http://www.inbio.ac.cr/pila/pdf/plan_manejo_pila_panama.pdf.
[214] AES Changuinola, a subsidiary of the U.S.-based AES Corporation, has plans to build up to three dams on the Rio Changuinola, within Ngöbe territory, and the Colombian Empresas Publicas de Medillin has plans to build one dam on the Rio Bonyic, within Naso Territory. See Press Release, Center for Biological Diversity, International Coalition Demands Cancellation of Virginia-based AES Corporation Dams in Panama That Will Flood Villages and Drive Species Extinct (Aug. 23, 2007), available at http://www.biologicaldiversity.org/news/press_%20releases/la-amistad-08-23-2007.html [hereinafter "CBD Press Release"].
[215] The Ente Regulador de los Servios Públicos granted concession and operation rights to construct the four dams through the following Resolutions: Resolución N° JD-3986, del 9 de junio de 2003, grants concession rights to construct and operate the Central Hidroeléctrica CHAN-75 (EL GAVILÁN) on the Changuinola River; Resolución N° JD-3987 del 9 de junio de 2003 grants concession rights to construct and operate the Central Hidroeléctrica CAUCHERO II (CHAN 140) on the Changuinola River; Resolución N° JD-3698 del 14 de enero de 2003 grants concession rights to construct and operate the Central Hidroeléctrica CHAN-220 on the Changuinola River; and Resolución N° JD-1497 del 12 de agosto de 1999 grants the concession rights to the Proyecto Hidroeléctrico Bonyic on the Bonyic River. See also Jose Arcia, Bosque, en peligro, La Prensa, Nov. 19, 2007, available at http://burica.wordpress.com/2007/11/19/el-adios-de-un-bosque-protegido-en-bocas-del-toro/.
[216] Corporacion de Abogadas Indigenas de Panama, Proceso Contensioso Administrativo de Nulidad Demanda, Apr. 16, 2007 (administrative action on behalf of the Naso against ANAM's approval of the Bonyic Hydroelectric Dam explaining the violation of indigenous Naso rights to adequate participation and consultation) (on file with author) [hereinafter "Naso Lawsuit"]; Letter from Ngöbe Peoples to the Ombudsman of Panama (June 5, 2007) (complaining about the government and company's failure to adequately consult the Ngöbe Peoples concerning the construction of a dam on the Changuinola River) (on file with author). See also Ellen Lutz, Panama Dam Construction Steps Up the Pace, Cultural Survival Quarterly, Spring 2008, available at http://www.culturalsurvival.org/ourpublications/csq/article/panama-dam-construction-steps-up-pace.
[217] World Heritage Committee, 32nd Session, July 2-10, 2008, at 47, WHC-08/32.COM/7B.Add, available at http://whc.unesco.org/download.cfm?id_document=100723.
[218] See Naso Lawsuit, supra note 214. A constitutional action (amparo in Spanish) was submitted in late 2007 to the Panamanian Supreme Court regarding inadequate consultation of the Ngöbe peoples. Telephone interview with Lucia Lasso, Executive Director, Alianza para la Conservación y el Desarrollo, in Panama City, Panamá (Nov. 21, 2007) [hereinafter "Lasso Interview"]. See also Ellen Lutz, Human Rights Violations by the Government of Panama Directed against Ngöbe Indigenous Communities and Individuals in the Changuinola River Valley, Bocas del Toro, Panama, Petition to the Inter-American Commission on Human Rights 3 (Cultural Survival and Alianza para la Conservacion y el Desarrollo 2008) (on file with author) [hereinafter "Human Rights Petition"].
[219] Naso Lawsuit, supra note 216; Lasso Interview, supra note 218. See also Human Rights Petition, supra note 218, at 19-26.
[220] See Ley No. 41, supra note 174, at art. 103; see also Indigenous Rights Declaration, supra note 10, at art. 19;Vth World Parks Congress, supra note 191.
[221] Jose Arcia, Gobierno comparece ante la CIDH, La Prensa, Oct. 28, 2008, available at http://mensual.prensa.com/mensual/contenido/2008/10/28/hoy/panorama/1571674.html; see also Betty Brannan Jaén Corresponsal, Indigenas piden protección de la CIDH, La Prensa, Oct. 29, 2008, available at http://mensual.prensa.com/mensual/contenido/2008/10/29/hoy/panorama/1573766.html.
[222] CBD Press Release, supra note 214.
[223] Anaya, supra note 89, at 154-155. See also Indigenous Rights Declaration, supra note 10, at art. 19; and Vienna Convention, supra note 150, at Preamble para. 3, art. 26 (treaties must be performed in good faith).
[224] IUCN PARKS Vol. 12, supra note 7, at 1.
[225] Id.
[226] World Commission on Protected Areas, Indigenous and Traditional Peoples and Protected Areas: Principles, Guidelines, and Case Studies, Best Practice Protected Area Guidelines Series No. 4 9-10 (World Conservation Union 2004), available at http://www.iucn.org/dbtw-wpd/edocs/PAG-004.pdf; see also WWF International, Indigenous Peoples and Conservation: WWF Statement of Principles 5-7 (A WWF Position Paper 2008), available at http://www.worldwildlife.org/what/whowehelp/community/partneringwith/WWFBinaryitem8943.pdf.
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