This presentation builds upon some of the themes discussed in “Legal Empowerment of the Poor and Environmental Justice in Latin America and the Caribbean: Issues and Challenges” written by Michael MacLennan and Leisa Perch.

1. Mini-Forum on Legal Empowerment and the
Environment
Legal Empowerment and the Poor and
Environmental Justice in Latin America and
the Caribbean: Issues and Challenges
Global South-South Expo
Hofburg Palace, Vienna
November 22nd, 2012
Presenter: Leisa Perch, Policy Specialist/Team Leader - Rural and
Sustainable Development
International Policy Centre for Inclusive Growth (IPC-IG)

2. INTRODUCTION TO IPC-IG
 IPC-IG is a partnership of the Government of Brazil and
UNDP based in Brasilia, Brazil.
 Focus of our research is international; specifically focused
on the South and on South-South Cooperation and
Learning.
 Themes for IPC’s applied policy research: Macro-Economic
Policy, Rural and Sustainable Development, Social
Protection, Development Innovations.
 In Rural and Sustainable Development, the focus in on 3
key areas:
• Inclusive Green Economies/Green Growth
• Sustainable Rural Growth
• Social and Political Innovations for Sustainable
Development
*See more on our webpage: www.ipc-undp.org

3. OUR WORK: SCALING UP FOR SOCIAL
SUSTAINABILITY
Targeted Strategies for: 300 million
Indigenous
Peoples
Rural Poor
Indigenous Peoples
Persons with Disabilities 600+ million
PLHIV Persons with
Disabilities
IDPs and refugees
1.4 billion Rural
Poor globally
30+ million
IDPs/refugees
All rights reserved
by UNDP Pakistan

4. OVERVIEW OF THE PAPER
- Introduction to the theme and the issues
- The Poverty-Inequality-Environment Nexus in LAC
- Evolving Notions of Justice and Entry points for Legal
Empowerment
- Collective and Individual Rights in LAC and the Role of the
Law
- Legal empowerment for greater natural resource benefit-
sharing and burden-sharing
- Appeals to law/legal reforms
- Increasing access to the law
- From increased access and specific rights to securing real
justice
- Addressing user rights and property rights in the context of
REDD_
- Key Takeaways

5. INTRODUCTION TO KEY THEMES
AND ISSUES
 harmful impacts of natural
resource exploitation fall
disproportionately on the
poor and indigenous peoples
 Policy solutions tend to be in
the form of:
 Effective governance
 progressive institutional
frameworks,
“Most indigenous peoples live on
 greater access to effective
the margins….their purses are not
remedies as strong as others when coping
 the legal empowerment of the with climate change.” Chief Charles
Williams of the Kalinago Territory in Dominica
poor - at the UN-affiliated Peoples’ Summit on
Global Climate Change in 2009.
 Legal Reform alone often
not enough

6. ENVIRONMENTAL JUSTICE
 Environmental justice has been described as “an
ideal of accountability and fairness in the protection
and vindication of rights and the prevention and
punishment of wrongs related to the impacts of
ecological change on the poor and vulnerable in
society.”*
 Notions of environmental justice are being shaped by
broader international policy, norms and principles,
often creating a dualistic evolution of justice where
pressures are exerted by social movements within
states and also are derived from global crises and
policy advances.
*Khoday, K and Perch, L. a. (2012). Green Equity: Environmental Justice for More Inclusive
Green Growth. IPC-IG. Brasilia: IPC-IG.

7. THE POVERTY-
INEQUALITY-
ENVIRONMENT NEXUS IN
THE LAC REGION

8. UNIQUENESS OF THE LAC REGION
 not the poorest region of the world, it is often
identified as the most unequal, particularly LA.
 Montserrat (5K) to Brazil (200MN)
 Traditions, rights and historical inequalities &
intensified debates about ownership of environmental
assets and endowments. Protests across LA in
particular.
 Regional correlation between the structure of
production, labour market participation and income
inequality (UNECLAC, 2012)
 Caribbean: Resource dependence = inter-
relationships between poverty, environmental
sustainability, the structure of the economy and the
sustainability of growth
 Caribbean: Multiplier effects from natural hazards +
poverty (Estimated 38 per cent poverty rate
paradoxical given high HDI)

9. UNIQUENESS OF THE LAC REGION
Figure 1. Variation in Inequality in Labour and Total Table 1.Change in HDI accounting for
Income,Gini Index, 2002-2010 inequality in select CARICOM States
Country HDI 2011 Inequality-
Adjusted HDI
Bahamas 0.771 0.655
Guyana 0.663 0.493
Haiti 0.454 0.278
Jamaica 0.727 0.610
Trinidad and 0.760 0.655
Tobago

10. MAJOR POVERTY-ENVT-
INEQUALITY ISSUES
 the social Injustice of environmental problems
 Caribbean still largely shaped by colonialism and discriminatory
patterns of wealth, social equity and resource control
 the disproportionate impact of climate change on low-lying SIDS
and States with potential for entire populations to be come the
climate-poor
 links between social equity, social justice, environmental protection
and ecological sustainability (CC)
 fair and equitable access to resources for development
 Indigenous population in the region - about 40 million people (LA
and C).
 In Mexico alone, there are 56 recognized indigenous groups and 62
languages. In Guatemala, 86.6 per cent of indigenous people are
considered poor, while in Mexico, 80.6 per cent are poor (World
Bank).
 Community protests concerning potential mining investments have
spiked, largely due to the negative environmental impacts on
health and livelihoods (e.g. Peru).

11. LONG TERM CLIMATE RISK & THE
DEVELOPING SOUTH
Table 2 – 2010 Risk Index
Harmeling, 2012

12. EVOLVING NOTIONS OF
JUSTICE AND THE ENTRY
POINTS FOR LEGAL
EMPOWERMENT EFFORTS

13. MAPPING THE EVOLUTION
 Development in LAC
 (colonial,post-colonial, nationalist or otherwise) have
involved the exploitation of natural resources for
economic growth.
 Economic structure of colonization = unlimited access to
land, labour, resources and minerals and the total
capture of resources.
 Lasting impact of these economic structures ( who
has access to what resource)
 Re-dress (top-down):
 Nationalization of resources at will (in Argentina, Bolivia
and Venezuela);
 the allocation of territorial rights (in Brazil and the
Commonwealth of Dominica);

14. MAPPING THE EVOLUTION (2)
 Land as economic empowerment:
 nationalized approaches have eliminated some of the
basic ethnic/racial biases in landownership e.g. the
Tenantry Freehold Act of 1980 in Barbados radically
shifted the distribution of land ownership
 Economy and social power:
 Economy as instrument for redistribution and green
growth - importance of continued social inclusion that
prioritizes rural areas, indigenous peoples and women
 State intervention and the implementation of public
policies to assume the costs of transition (SELA, 2012:18)
 Climate Finance:
 Expanse of justice/equity discourse to include access to
global finance and prioritization in fund allocation (esp.
Caribbean)

15. JUSTICE AND REAL JUSTICE?
 Ancestral Lands After landmark judgements in
 specific attention to the 2007 and 2010 in favour of the
Maya villages of Conejo and
needs of women and
Santa Cruz (of Belize) full
children (IACHR) legal ownership over their
 State obligation to give lands and its resources as well
special attention to as the remaining Mopan and
indigenous peoples, tribes Q’eqchi villages in Toledo
and their members District, In 2011 the Maya
(IACHR, 2009:18) in Conejo woke up to the
 Land Reform and Gender: sound of explosions right
outside their village. Without
 40 per cent of Haiti’s any warning, US Capital
rural households are Energy had cleared some four
FHH miles of forest. Additionally,
 Can own, buy, sell and seismic testing ignited a
inherit land and pass it to massive fire that destroyed
their heirs more than 400 acres of the
newly discovered ecosystem.
 But do not enjoy fully
equal inheritance rights.

16. poor infrastructure
Exposure to natural disaster
Social Susceptibility Social Resilience
Fem
ale
-he
ad ed ion
ho
use d u cat
ho vel e
ld t e le
Ad eq u a
Sub s
t anda
rd ho
using
ell-b
eing poor planning
Nation Health
w
(Individual,
s
Low health statu Strength of social
Household or capital
Community)
as Econo
mic w
e ar e ell
pron -being
ster ng
g in
disa - be i Adequ
Livin l ate le
ic we l v els of
housin
nom g
f e co
lev el o
Low
Measure of social vulnerability
Construct of Social Vulnerability developed by Asha Kambon, 2005

17. ENVT JUSTICE AND THE CREATION
OF NEW GROUPS
 “Club rights”: the rights of specific groups within society - most
significant advances in environmental justice emerging in the
expansion of indigenous rights and social justice avenues for
indigenous peoples.
 Indigenous Peoples: “social, cultural, economic and political
characteristics that are distinct from those of the dominant
societies in which they live,” (The United Nations
Permanent Forum on Indigenous Peoples)
 Citizens of SIDS: Environmental threats potentially
undermine the realization of individual rights by
threatening life, livelihoods and health in a way that
potentially affects entire states
 Coastal dwellers and those dependent on coastal livelihoods:
Climate change could displace specific groups of people**.
*(http://social.un.org/index/IndigenousPeoples/DeclarationontheRightsofIndigenousPeoples.as
px)

18. EVOLVING FACE OF WHO NEEDS
ACJ
Organic farmer, Roseau Market, Dominica

19. COLLECTIVE AND INDIVIDUAL
RIGHTS IN LATIN AMERICA
AND THE CARIBBEAN AND THE
ROLE OF THE LAW

20. RIGHTS OR ECONOMIC RIGHTS?
“It is not only the legal rights that the
poor need, it is the capacity to exercise
their economic rights effectively.”
(Mennen, 2010).
http://www.idlo.int/publications/LEW
P/Mystery_LEP.pdf

21. INCREASING OVERLAP/CONTESTATION
• adequate housing
• water
quantity and quality of • non-discrimination
environmental resources • equality between men and
women
users
 privacy and respect for the access to services
home
 peaceful enjoyment of
possessions
 freedom of movement
 protection from
displacement property owners
Mairi Beautyman

22. COLLECTIVE AND INDIVIDUAL
RIGHTS AND RESPONSIBILITIES
 Right to development both for people
and the state
 the International Covenant on Economic,
Social and Political Rights suggests the
following guarantee by the State for its
peoples: All peoples may, for their own ends,
freely dispose of their natural wealth and
resources without prejudice to any
obligations arising out of international
economic co-operation, based upon the
principle of mutual benefit, and
international law. In no case may a people
be deprived of its own means of subsistence.
(Part 1, Article 1: 2).
 Forest resources? individual and
collective rights can pit the rights to Figure 6: Vendors sell vegetable charcoal at La
Saline market in Port-au-Prince. Nearly all of the
development and livelihood directly 30 million trees planted in the 1980's with a
against the right to protection from US$22.8 million project by the U.S. Agency for
International Development, have been cut down to
displacement (e.g. Haiti). make charcoal for cooking. The resulting erosion
has made the island more vulnerable to
devastating floods each hurricane season.

23. LEGAL EMPOWERMENT FOR
GREATER NATURAL
RESOURCE BENEFIT-SHARING
AND BURDEN-SHARING IN LAC

24. APPEALS TO LAW/LEGAL
REFORMS IN THE PURSUIT OF
ENVIRONMENTAL JUSTICE
 National laws, legal reform etc
- Ecuador:
- Constitutional amendment in Ecuador to confer Rights of
Nature (2008): Right of Nature to exist and its value to
society.
- Mexico’s General Law on Climate Change
- One of the most direct statutes addressing the issue of
climate change (2012)*.
- Guarantees, inter alia, the right to a healthy
environment.
- Barbados:
- The CZMA confers the right to protect the environment
as well as coral reefs as well as the right to levy damages
for reef destruction.
- 1999 Ombudsman report noted “the sea” as one of most
precious natural assets for Barbadians*
- *http://www.idlo.int/Publications/MexicoClimateChangeLWB.pdf
- *http://pdf.usaid.gov/pdf_docs/PNADC135.pdf

25. INTER-AMERICAN
COMMISSION/COURT OF HUMAN
RIGHTS
 In October 2002, the IACHR recognized the connection between
environmental degradation and human rights, applying a rights-
based approach to environmental protection and justice.
 144th Session (March 2012), schedule of hearings included six cases
concerning indigenous rights + a hearing on the Human Rights
Situation of Persons Affected by the Extractive Industries in the
Americas.
Box 1. The Saramaka People v. Suriname
In The Saramaka People v. Suriname , the IACHR addressed logging and mining
concessions on Saramaka territory that were awarded by the Government of Suriname
without full and effective consultation. In its ruling for the Saramaka people, the Court
outlined three safeguards that the State must abide by to avoid inflicting future social and
environmental injustices on indigenous peoples and their lands:
1. effective consultations, as well as free, prior and informed consent in
connection with development and investment projects;
2. sharing of benefits from development plans; and
3. prior and independent environmental and social impact assessments.
These three safeguards serve as a good model for other states seeking to mitigate the risk
of committing or enabling environmental injustices. (Orellana, 2008, 841)

26. INTER-AMERICAN
COMMISSION/COURT OF HUMAN
RIGHTS
State/Country Date Incident Details
Panama February 7, 2012 (noted by IACHR) Members of the Ngöbe Buglé indigenous group blocked the Inter-
American highway for several days in a protest related to the
discussion in Congress of Bill No. 415, “which establishes a Special
Regime for the Protection of Mineral, Water, and Natural Resources in
the community of Ngöbe Buglé.”
Guatemala March 27, 2012 In 2011, five men were arrested and charged with taking part in the
Plan de Sánchez Massacre of 268 people, mostly members of the Maya
indigenous community. This case has since been reopened.
The IACHR notes that there is a protection deficit of indigenous
territorial rights in Guatemala, characterized by failures to recognize
indigenous lands; the lack of a property registry or cadastre
system that recognizes ancestral territories and enables the
protection of lands that belong to indigenous peoples; the
acquisition of lands by companies without the State's direct
supervision; and the execution of investment, development and
natural resource extraction projects in contradiction of
international norms in these matters.
Venezuela September 5, 2012 Illegal miners allegedly opened fire on the Irotatheri, where
approximately 80 members of the Yanomami Peoples were gathered.
(IACHR release) Individuals in a helicopter opened fire on the group, including children
and elders.
The IACHR asserts that states have an obligation to protect members
of the Yanomami Indigenous Peoples from third-party attacks and
from those interested in the natural resources that exist in Yanomami

27. FROM INCREASED ACCESS AND
SPECIFIC RIGHTS, TO SECURING
REAL JUSTICE
 In Trinidad and Tobago:
 Series of protests over an extended period seems to have halted the
establishment of one of two proposed smelters.
 Arguments for:
 Macro-economy - importance of these activities and their economic
benefits.
 Arguments against:
 Environment and health related externalities
 Plans for a second plant, proposed for LaBrea, were also scrapped,
despite local approval for the proposal.
 Interesting court ruling ( temporarily halting construction of the
LaBrea smelter)
 finding that environmental approval for the smelter was granted in an
“outrageous, irrational and procedurally irregular manner.”
 The judge cited the lack of consideration in granting a Certificate of
Environmental Clearance by the Environmental Management Agency of
the cumulative impact of the smelter and two other industrial projects,
namely a power plant and a new port facility.

28. USER AND PROPERTY RIGHTS IN
THE CONTEXT OF REDD+:
EMERGING CHALLENGES FOR EJ
 Arguments for:
 Reduction of emissions through avoided emissions and
sequestration
 Mobilize resources for the poor
 Recognizes ecosystem services
 Arguments against:
 Limits user rights
 Appropriately compensating for the loss of such rights?
 Given an economic value?
 Other Questions:
 who owns or has rights to carbon (Parkinson and Wardell
(2010: 6).
 Resolving conflicts………between agricultural communities
and indigenous peoples” (IDLO, 2010).

29. FORESTS: BEYOND CARBON SEQUESTRATION
http://blog.conservation.org/2010/12/indigenous-participation-is-critical-for-climate- http://www.treehugger.com/corporate-responsibility/redd-forest-protection-
change-success program-could-threaten-rights-of-350-million-people.html
• Co-benefits: biodiversity conservation, forest recuperation and sustainable harvesting
of forest resources at global, national and local levels
•Indigenous people’s role in forest and biodiversity conservation through their
livelihoods absent in policy initiatives.
•References to indigenous peoples are now increasingly common but in what context?

30. LOOKING FORWARD

31. KEY TAKE-AWAYS
 Strengthening marginalized groups’ trust in the institutions
and authorities.
 Indigenous autonomy regimes, increased corporate citizenship
and a rights based-approach to environmental protection have
also helped.
 Rights at the state, regional or international level are effective
only when a state enables their implementation.
 Legally empowered organizations must mobilize to ensure that
social and political conditions in each country allow policies to
be proposed and discussed.
 Legal decisions in favour of indigenous or marginalized groups
need to be applied to their daily lives.
 Non-legal mechanisms (social movements) can play a
significant complementary role, by enhancing societal roles in
the development process.
 Need to update the “socio-environmental compact”.
 Need to look at cumulative effects and not just individual cases.

32. THANK YOU FOR YOUR ATTENTION!
LEISA PERCH
LEISA.PERCH@IPC-UNDP.ORG