Precautionary principle and the protection of Indigenous Peoples’ Rights in the case of activities on their lands
Ojeda Zavala, Nicolas Alberto
This thesis focuses on how the Precautionary Principle, a general principle of international law, can strengthen the protection of Indigenous peoples’ rights, when States’ actions may affect their lands and territories. This brings into focus the importance of Indigenous peoples’ traditional knowledge, a system of knowledge tied to their lands, systematically developed by relying on observations, practices and experiences, which is able to predict outcomes. This knowledge represents an integral understanding of Indigenous peoples’ traditional way of life, providing the ‘best information available’ about customs, values, activities, their special relationship with their environment and even the existence of particular risks and uncertainties, making it vital when it comes to the adoption of informed decisions and the full understanding of the possible consequences of a determined action on their livelihood. This thesis shows that the precautionary principle has been influenced by a narrow understanding of one of its elements, ‘scientific uncertainty’, insufficient to effectively address potential threats that originate in human activities, like the extraction of natural resources, and seriously disturb the complex web of relationships and dynamics in determined ecosystem. This makes it necessary to embrace other sources of knowledge, in order to effectively avoid the materialisation of these potential impacts. It argues that traditional knowledge is recognised in international law as a source of scientific knowledge in a broad sense, and thus it should be integrated into the element of ‘scientific uncertainty’, providing a different understanding of risks, of ‘what is known/unknown, what is uncertain and what is controversial. Moreover, as a scientific basis for the adoption of precautionary action, the integration of traditional knowledge expands the application of the precautionary principle to deal with potential threats of non-negligible harm to Indigenous peoples’ traditional way of life. From a procedural point of view, the integration of this traditional knowledge requires the existence of participatory mechanisms of public participation. In this case, the two participatory mechanisms that are at the front and centre of this discussion are the States’ duty to consult Indigenous peoples, with the objective to obtain their free, prior and informed consent, when they may be affected by certain measures; and the implementation of impact assessments. In this sense, I argue that both mechanisms are precautionary measures, being triggered when there are ‘reasonable grounds for concern’ about possibly non-negligible harm to Indigenous peoples’ rights. This means that States must not only conduct consultations/impact assessments but are also under the duty to avoid the materialisation of potentially serious harm to Indigenous peoples, which implies the need to consider their traditional knowledge and accommodate their concerns, at the risk of failing to comply with the precautionary principle. In addition, following a precautionary logic of ‘the higher the risk the greater the need for precaution’, States must reach an agreement or obtain Indigenous peoples’ consent in situations where the potential impacts on their traditional way of life are of a more substantive nature. This shows that the precautionary principle strengthens the protection of Indigenous peoples’ rights.