By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
The United Nations Declaration on the Rights of Indigenous Peoples was adopted against a background of indigenous peoples having suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests. It therefore came in to, inter alia, correct such situations through guaranteeing their right to self-determination. In addition, it reaffirms the indigenous peoples’ right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired; the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired; and States should give legal recognition and protection to these lands, territories and resources. Such right includes their right to use their customs, traditions and land tenure systems of the indigenous peoples concerned especially in relation to their right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States are therefore obligated to establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.
The Convention on Biological Diversity recognises the role of indigenous knowledge in in-situ conservation of biological diversity and requires contracting states to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity. 38 The Convention further advocates for promotion of wider application of indigenous knowledge with the approval and involvement of the holders of such knowledge who should equitably share in the benefits which arise from the use of their knowledge. Further, under article 10(c) of the Convention, each Contracting Party shall, as far as possible and as appropriate protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.
The Convention is the only international treaty that specifically acknowledges the role of traditional knowledge, innovations, and practices in biodiversity conservation and sustainable development and the need to guarantee their protection, whether through intellectual property rights or other means. In order to achieve the vision of the Convention and optimise the role of indigenous knowledge in sustainable development, there is need to ensure clarity with regards to ownership of traditional knowledge and traditionally used biological resources; a process and set of requirements governing free prior and informed consent and equitable sharing of benefits with respect to traditional knowledge and associated genetic resources.
Principle 22 of the 1992 Rio Declaration on Environment and Development acknowledges that indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. In light of this, States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development. The United Nations Educational, Scientific and Cultural Organization (UNESCO) asserts that ‘culture is who we are and what shapes our identity. No development can be sustainable without including culture.’
The Food and Agriculture Organization of the United Nations (FAO) opines that the promotion and protection of traditional and indigenous food and agricultural knowledge will require international, intercultural and interdisciplinary approaches, communication and cooperation. Coordination of indigenous and local communities’ sustainable use, conservation and management of food and agriculture within and across ecosystems, landscapes and seascapes will also require synergies that link food security, livelihood sustainability, poverty alleviation and food and agricultural productivity to rural development processes based on in and ex situ conservation of food and agricultural genetic resources. Traditional environmental knowledge from these communities thus becomes relevant in achieving the foregoing.
The 1994 Draft Declaration on Human Rights and Environment describes the procedural rights, such as the right to participation, necessary for realization of the substantive rights. Article 1 of the Aarhus Convention states that “in order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and wellbeing, each Party should guarantee the rights of access to information, public participation in decision-making and access to justice in environmental matters in accordance with the provisions of this Convention.” Environmental procedural rights such as the access to information, public participation and access to justice may be one of the ways and means to a realistic way for attaining the sustainable development. Recognition and active utilisation of communities’ traditional environmental knowledge can create a viable channel for communities to appreciate government’s efforts in effective environmental governance through promoting sustainable use of the environment and its resources.
Agenda 21 provides that Governments at the appropriate level, with the support of the relevant international and regional organizations, should, inter alia: promote a multidisciplinary and cross-sectoral approach in training and the dissemination of knowledge to local people on a wide range of issues which include various resources management. Further, Agenda 21 states that Coastal States should promote and facilitate the organization of education and training in integrated coastal and marine management and sustainable development for scientists, technologists, managers (including community-based managers) and users, leaders, indigenous peoples, fisherfolk, women and youth, among others. Management and development, as well as environmental protection concerns and local planning issues, should be incorporated in educational curricula and public awareness campaigns, with due regard to traditional ecological knowledge and socio-cultural values. This is useful in promoting sustainable and inclusive sustainable resources management through empowering the local people to participate meaningfully in the same.
The Bali Principles also affirm the fact that the impacts of climate change are disproportionately felt by small island states, women, youth, coastal peoples, local communities, indigenous peoples, fisherfolk, poor people and the elderly. Also noteworthy is the assertion that the local communities, affected people and indigenous peoples have been kept out of the global processes to address climate change. The Principles also acknowledge that unsustainable production and consumption practices are at the root of this and other global environmental problems. The impacts of climate change also threaten food sovereignty and the security of livelihoods of natural resource-based local economies. They can also threaten the health of communities around the world-especially those who are vulnerable and marginalized, in particular children and elderly people. More importantly, the Bali Principles acknowledge in the preamble that combating climate change must entail profound shifts from unsustainable production, consumption and lifestyles, with industrialized countries taking the lead.
African States and other stakeholders, in the Ngorongoro Declaration have acknowledged that Sustainable development can ensure that appropriate efforts are deployed to protect and conserve the cultural and natural resources of a region faced with the challenges of climate change, natural and human-made disasters, population growth, rapid urbanization, destruction of heritage, and environmental degradation for present and future generations. As such, they declared that on the one hand, African heritage is central to preserving and promoting African cultures thereby uplifting identity and dignity for present and future generations in an increasingly globalized world, and on the other hand, heritage, including World Heritage properties, is a driver of sustainable development and critical for achieving regional socio-economic benefits, environmental protection, sustainable urbanization, social cohesion and peace.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., Revisiting the Place of Indigenous Knowledge in the Sustainable Development Agenda, Available at: http://kmco.co.ke/wp-content/uploads/2020/09/Revisiting-the-Place-of-Indigenous-Knowledge-in-the-Sustainable-Development-Agenda-Kariuki-Muigua-September-2020.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021.
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