Indigenous Rights And Environmental Justice - Legal Framework And Advocacy

Author: LawSphereX

Category: Environmental Law

Published: 2026-08-23T20:20:14.713161+00:00

Updated: 2026-08-26T17:11:07.683+00:00

INDIGENOUS RIGHTS AND ENVIRONMENTAL JUSTICE:

LEGAL FRAMEWORK AND ADVOCACY

Rudrakshi Sharma & Irasha Tripathi, BA LLB, Banasthali Vidyapith

ABSTRACT

Indigenous communities are all around the world, they are the communities which are deeply connected to their land, nature, environment and culture etc. the communities have their own histories and own challenges to face in the society to face, when it comes to protecting their rights, especially in the current developing phase, mining and other environmental threats. The paper concerns with the legislations, statutes and other provisions which are meant to protect the rights of indigenous people to their land, environment, etc, and focuses on both national (i. e. , Indian) and international frameworks which offer support for their rights and environmental justice. The paper basically explores about the working of the legal frameworks, where they fall short and the ongoing struggle faced by them in securing their rights.

It also concerns with the role of advocacy and movements in raising the awareness and fighting the justice, etc.

Introduction to the topic: The topic, indigenous rights and environmental justice is comprised of two separate headings, indigenous rights and environmental justice, which conceptually can be understood as in the following heads: Background on Indigenous Rights: • Indigenous people: Indigenous Peoples are inheritors and practitioners of unique cultures and ways of relating to people and the environment. They have retained social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live. 1 They as in general are referred to the original inhabitants of a specific concerned geographical area. The people and their communities are known for their historical, cultural and spiritual connection to their lands. The communities maintain a distinct language and cultural aspects.

• Indigenous rights: The evolution of these rights has been shaped by the combination of various historical, political and social factors and events. Its evolution is rooted in the struggle to address the injustices faced by them in their day to day life. Well as for defining the indigenous rights are concerned, they are the collective and individual rights that recognize the distinct cultures, languages, traditions, etc of indigenous community and their relationships with their ancestral lands territories and natural resources. Concept of Environmental Justice As per U. S. commission on civil rights; Environmental justice is the fair treatment of people of all races, income, and cultures with respect to the development, implementation and enforcement of environmental laws, regulations, and policies, and their meaningful involvement in the decisionmaking processes of the government.

2 It is the concept that all people regardless of their race, income, ethnicity or geographical location, etc, should have the right to healthy environment and should be equally protected 1 United nations, (Jan 29, 2025,10:04 AM) Indigenous Peoples at the United Nations | Division for Inclusive Social Development (DISD) 2 Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice: Chapter 2: What Is Environmental Justice?

from any sort of environmental harms, risks or dangers. The core principle of environmental justice basically focuses on both; fair distribution of resources (environmental benefits, such as clean air water and land) and prevention and safeguarding from any sort of environmental harm ( such as pollution, hazardous industry placements, etc. ) that might affect certain communities due to any other factor involved. So in this context, indigenous rights and environmental justice are the topics which are eventually intertwined to each other in a way or other. The indigenous communities are not only facing various challenges all along but are also fighting with them for their cultural survival and political autonomy, but also for the protection of lands, nature and resources that sustain them all along.

The loss of these lands and resources due to rapid development, exploitation and changing climate threatens both their way of living as well as the global environment, so eventually the topic concerns not only their communities but all other communities and people worldwide. Legal frameworks; Indian legislation: international legislations There are a variety of legal frameworks which are designed to protect indigenous communities and to serve environmental justice for all. There are many frameworks which have evolved significantly over the last centuries, providing a mechanism for safeguarding their rights to land, nature, culture, etc. the span of these frameworks spread not only to international levels but to the domestic levels as well, as a response to the struggles faced by the communities and rapid climate changes, following are some of the frameworks to refer.

Domestic laws: As for the reference of indigenous rights, the traces of the same can be traced in a various Indian statutes, which are specifically framed so as to protect and safeguard indigenous communities. Very starting from the constitution of India to various other statutes, some of which are referred below.

1. Constitutional provisions:

The constitution of India provides for special safeguards for indigenous communities to protect their cultural identities, land, etc. There are various reasons behind the emergence of these

provisions emerged due to historical injustices, land alienation, social exclusion, and many other such reasons. Following are some of the provisions listed under the Indian constitution: Article 15(4) – Special Provisions for STs: which allows the State to make special provisions for the advancement of Scheduled Tribes. Article 46 – Promotion of ST Education and Economic Interests: which provides for the directions to the government to promote the educational and economic interests of STs and protect them from social injustice and exploitation. Article 338A – National Commission for Scheduled Tribes (NCST): which provides for the establishment of NCST to monitor and safeguard tribal rights and advise the government on policies.

Article 330 & 332 – Reservation of Seats in Legislatures Article 334 – Duration of Reservation Article 19(5) – Protection of Tribal Land Rights: which allows states to restrict land transfers in tribal areas to prevent exploitation by outsiders. Article 16(4) – Reservation in Government Jobs: which provides reservation for STs in government jobs and promotions. Article 335 – Relaxation in Job Qualifications: which allows the government to relax job qualification criteria for STs in certain cases, etc.

2. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

The act was initially enacted to prevent crimes, atrocities, and discrimination against Scheduled Tribes (STs) and Scheduled Castes (SCs). It provides protection, remedies, and special rights for STs facing various problems in their day to day life such as; social injustice, violence, exploitation, etc. As per the preamble of the act, it is ‘an Act to prevent the commission of offenses of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or

incidental thereto.’3 Key Provisions for Indigenous Communities (STs) A. Protection from various key offenses listed under the Act:

a) Land Alienation & Displacement (Section 3(1)(g)-(h)) b) Social and Economic Exploitation (Section 3(1)(b), (c), (e)) c) Physical and Sexual Violence (Section 3(1)(w)-(x)) d) Destruction of Tribal Identity & Culture (Section 3(1)(r)) e) Denial of Basic Rights (Section 3(1)(a)-(c)) B. Special Courts and Legal Protections:

a) Exclusive Special Courts (Section 14 & 15): which provides for Fast-track trials/ speedy trials to ensure quick justice for ST victims. b) No Anticipatory Bail for Offenders (Section 18) c) Rehabilitation and Compensation for Victims (Section 15A): which further provides for free legal aid, medical care, and financial compensation for affected STs. d) Protection of Witnesses & Victims (Section 15A(6))

3. The Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA):

The act was initially enacted to empower indigenous communities in Scheduled Areas by granting them various self-governance rights through Gram Sabhas (village councils). It is so enacted so as to ensure tribal autonomy, their land rights, and resource control, so as to align them together with their traditional self-governance systems. In other words the objective of the act can be understood as; ‘The main rationale behind the Act is to preserve the tribal population from exploitation with an active involvement of the Gram Sabha. The Panchayats 3 Delhi Government Site, (Jan 29, 2025, 11:30 AM) https://scstwelfare.delhi.gov.in/scstwelfare/scheduledcastesand-scheduled-tribes

Extension to Scheduled Areas (PESA) Act, 1996, gives special powers to the Gram Sabhas in Scheduled Areas especially for the management of natural resources.’4 The Act provides some of the key provisions such as the following: A. Empowerment of Gram Sabhas (Village Councils)

a) Gram Sabha as the Decision-Making Authority (Section 4(a)): which authorizes the Gram Sabha as the fundamental unit of self-governance, and further gives control over local resources, customary practices, and development planning. b) Consent for Land Acquisition (Section 4(i)): which provides for the provision that no land in Scheduled Areas can be acquired or transferred without Gram Sabha approval. c) Control Over Local Economy (Section 4(d)) d) Power to Prevent Land Alienation (Section 4(m)(iii)): which prohibits sale or lease of tribal land to non-tribals, and provides the Gram Sabha with the right to restore unlawfully acquired tribal land. B. Resource and Livelihood Protection

a) Ownership of Minor Forest Produce (Section 4(m)(ii)) b) Management of Water Bodies (Section 4(m)(iv)) c) Regulation of Moneylenders and Traders (Section 4(m)(v)) C. Administrative and Developmental Autonomy

a) Right to Plan and Manage Village Development (Section 4(e)): that is to approve development projects and monitor their implementation.

4 Ministry of Home Affairs Site, (Jan 30, 2025, 6:30 PM),

https://www.mha.gov.in/sites/default/files/PESAAct1996_0.pdf

b) Control Over Social Sectors (Section 4(m)(vi)) c) Customary Laws and Traditions (Section 4(a)): it recognizes and preserves tribal customs, traditions, and dispute resolution systems.

4. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest

Rights) Act, 2006 (FRA): The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, was also known as The Forest Rights Act (FRA), 2006, was initially enacted to recognize and protect the rights of indigenous communities (Scheduled Tribes - STs) and forest dwellers over land and forest resources. It is to correct the historical injustices caused by colonial and postindependence forest laws which denied the access of indigenous communities to their traditional lands. The objective of the act can also be understood in other words as; ‘The Forest Rights Act (FRA), 2006 recognizes the rights of the forest dwelling tribal communities and other traditional forest dwellers to forest resources, on which these communities were dependent for a variety of needs, including livelihood, habitation and other socio-cultural needs.

The forest management policies, including the Acts, Rules and Forest Policies of Participatory Forest Management policies in both colonial and post-colonial India, did not, till the enactment of this Act, recognize the symbiotic relationship of the STs with the forests, reflected in their dependence on the forest as well as in their traditional wisdom regarding conservation of the forests. ’ 5 The Act provides some of the key provisions such as the following: A. Recognition of Land and Resource Rights

a) Individual Forest Rights (IFR) (Section 3(1)(a)): which includes the recognition of ownership rights over land traditionally cultivated by tribal families. b) Community Forest Rights (CFR) (Section 3(1)(b), (c)): which collectively grants the tribal communities collective rights over forest resources and includes rights to gather, use, and sell minor forest produce.

5 Ministry of Tribal Affairs, (Jan 30, 2025, 08:15 PM) https://tribal.nic.in/FRA.aspx

c) Habitat Rights for Particularly Vulnerable Tribal Groups (PVTGs) (Section 3(1)(e)): which provides for special recognition for PVTGs (like Baigas, Chenchus, and Great Andamanese). B. Protection from Eviction and Land Alienation

a) Protection from Forced Evictions (Section 4(5)): which eventually prohibits the eviction of forest dwellers unless all rights are settled. And also provides for the provision of no eviction without free, prior, and informed consent. b) Restoration of Alienated Lands (Section 3(1)(m)): which provides for the restoration of unlawfully taken tribal lands to rightful owners. C. Governance and Community Control Over Forests

a) Right to Protect and Manage Forests (Section 3(1)(i)): which empowers the Gram Sabhas to protect forests, wildlife, and biodiversity and eventually prevents illegal commercial exploitation of forests. b) Consent for Development Projects (Section 5): it provides for the provision of no displacement for projects (e.g., mining, dams) without the approval of Gram Sabha. c) Authority of Gram Sabha (Section 6(1)): which grants the Gram Sabha the authority of primary decision-making body for forest rights claims.

5. The Protection of Civil Rights Act, 1955:

The Act was initially enacted to abolish untouchability as well as to protect the civil rights of marginalized groups, including Scheduled Castes (SCs), Scheduled Tribes (STs), and other historically oppressed communities. The Act basically and primarily focuses on elimination of practices related to untouchability, which often affect tribal communities, especially those living in rural or remote areas. The Act provides some of the key provisions such as the following: A. Abolition of Untouchability:

a) Punishment for Untouchability Practices (Section 3): which is to provide punishment for various acts listed down in the section such as the prohibition of untouchability in any form, including denial of access to public places, temples, shops, and education. The provision also provides for the Discrimination against Scheduled Tribes (STs) on the basis of their social status or caste is punishable by law, etc. b) Rights to Access Public Places (Section 4): which is to ensure that tribals are not denied access to public places such as temples, roads, restaurants, or water sources, etc. B. Prohibition of Discrimination in Education, Employment, and Public Facilities

a) Access to Education (Section 4): it prevents discrimination in schools and ensures they have access to education without prejudice based on their identity or caste. b) Prohibition in Employment and Occupation (Section 5): which prohibits discrimination in employment opportunities based on tribal identity. It applies to both government and private sector employment, etc. C. Protection from Exploitation

a) Prevention of Forced Labor (Section 5) b) Special Provisions for the Protection of Tribal Women (Section 6): where particularly women, are safeguarded from practices like sexual exploitation or being forced into bonded labor, etc. Apart form the provided statutes there are various other statutes which provides various provisions for the rights and protection of the indigenous communities such as ), the Bonded Labor System (Abolition) Act, 1976, the Inner Line Regulation Act, 1873, the Forest Conservation Act, 1980, and various state-specific tribal acts depending on the region, etc. International laws There are a variety of international legislations formulated so as for the protection of the interest of the indigenous community at the global level. These rights are vital to ensure the protection and empowerment of indigenous people globally. They basically aim to safeguard

their cultural, economic, and social rights, and provide frameworks for addressing the challenges they face due to various external factors such as colonialism, displacement, marginalization, etc. Below are some of the key international legislations and frameworks related to indigenous rights:

1. The Universal Declaration of Human Rights (UDHR) – 1948

As for the provisions of UDHR, they don’t specifically focuses on indigenous communities but does establishes fundamental human rights that apply to all people, including indigenous populations. Articles 1 and 2 emphasize the right to equality and freedom, which as well applies to the community and ensures they are not discriminated against based on their origin or culture.

2. The International Labour Organization (ILO) Convention No. 169 – 1989

ILO Convention No. 169 is a legally binding international instrument specifically focused on indigenous and tribal peoples, which includes provisions on land rights, cultural preservation, participation in decision-making, education, and health for indigenous communities, etc. It provides for the protection of indigenous languages and customary law, and guarantees the right to maintain their social institutions.

3. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – 2007

UNDRIP is one of the landmark document that defines and protects the rights of indigenous communities all around the world. While it is not legally binding, it is a strong moral and political framework for the recognition and protection of indigenous rights. Its key provisions include: o Right to self-determination (Article 3) o Right to land, territories, and resources (Articles 25-30)

o Right to practice and revitalize their cultures (Article 11) o Right to free, prior, and informed consent for any development projects affecting their lands or communities (Article 19). o Protection from displacement, discrimination, and forced assimilation (Articles 8 and 9).

4. The Convention on the Elimination of All Forms of Racial Discrimination (CERD) –

The CERD basically aims to eliminate racial discrimination in all its forms, including discrimination against indigenous peoples. Article 2 obliges state parties to condemn and eliminate racial discrimination, ensuring that indigenous peoples enjoy the same human rights and freedoms as other populations, including equality before the law, employment, education, and healthcare. These were some of the international conventions and legislations listed, which eventually provides for the protection and interest of the indigenous community. Advocacy for indigenous rights environmental justice The realm of environmental justice and indigenous rights is a delicate field, characterized by its dynamic nature, addressing the interconnected challenges faced by indigenous communities and the environment.

It is the high time to recognize the inherent rights of indegenious rights of indegenious people, who are the most disadvangated to environmental degradation. There is a need to protect htier lands, cultures, and livelihoods. To grasp the significance of advocacy and the rationale behind its implementation, let's explore the importance of this aspect. • Indigenous Peoples as Environmental Stewards: The practices possessed by the indigenous communities have invaluable ancient knowledge which helped sustain the environment for many generations. These practices involved a deep understanding of how to live in harmony with nature and supporting their rights is very essential for sustainable resource management and environmental conservation.. • Addressing Historical Injustices: Advocacy strives to redress the injustices that were

faced by Indigenous peoples as they were victims of colonization, displacement, and discrimination, often resulting in the loss of their lands and resources. It helps in straightening out the control of the indigenous communities over their land and territories. • Protecting Biodiversity and Ecosystems: Biodiversity is a vital element which has immense ecological significance and sometimes the territories of Indigenous communities overlap with areas of high biodiversity. Hence, protecting indigenous rights is very important protecting forests, wildlife and other resources, which benefits all of humanity. • Promoting Cultural Preservation: Culture holds significant importance in India, and safeguarding and promoting it is very crucial. Similarly, Indigenous communities share a deep connection with their environment and land.

Consequently, preserving their culture, traditions, spiritual practices, and languages is essential, as it forms an integral part of the world’s heritage. • Ensuring Environmental Justice: Indigenous communities are severely affected by various issues which involve pollution, climate change, and resource extraction. Environmental justice has an important role in protecting those rights, ensuring justice o the communities by recognizing their right to live in a healthy environment. This is where the role of advocacy comes into light as it addresses these disparities and ensures that every indigenous person should have a voice in the decisions that affect their rights and environment.

How advocacy works: • Legal Empowerment: Shifting the focus to the organization which works for indigenous communities will help in asserting their rights and they can participate in the decision-making process to avoid any capricious decision. Organizations like the Indigenous Rights Advocacy Centre (IRAC) provide legal support to indigenous communities and give them a chance to participate in the whole process. • Policy Advocacy: Advocacy also focuses on policymakers and even the government so that efforts should be made towards the recognition of indigenous land rights with

the involvement of indigenous knowledge in environmental policies, and the implementation of sustainable development practices. • Community Mobilization: It is crucial to support initiatives led by indigenous communities and empower them to advocate for their rights. This involves offering resources, training, and opportunities for their voices to be amplified and advocacy helps in achieving these. • Public Awareness: Increasing public awareness about the significance of indigenous rights and environmental justice is vital for fostering support and driving change. This will include educational campaigns, media engagement, and cultural events for spreading awareness of indegenious rights.

• International Collaboration: Collaborating with international organizations and human rights bodies can strengthen the voices of indigenous peoples and ensure governments are held accountable for their responsibilities. Examples of advocacy in action: • Giving support to indigenous-led conservation initiatives. • Opposing extractive industries and infrastructure projects that endanger indigenous lands and resources. • Encouraging the acknowledgment of indigenous customary laws and traditional governance structures. • Supporting the integration of indigenous viewpoints in climate change mitigation and adaptation efforts. • Supporting indigenous communities in their efforts to revitalize their languages and cultures You can be part of the movement: • There need to support an organization which can work on indigenous rights and environmental justice.

By educating yourself and others about the concerns facing by the indigenous communities. • Formulation of policies to fortify indigenous rights and the environment. Landmark Cases: • Mabo v Queensland (No 2) (1992) (Australia)6 This historic decision by the High Court of Australia rejected the legal myth of "terra nullius" (land belonging to no one) and affirmed native title, recognizing Indigenous peoples' enduring connection to their ancestral lands. • Delgamuukw v British Columbia (1997) (Canada):7 The Supreme Court of Canada acknowledged Aboriginal title, granting Indigenous peoples the right to own and govern their traditional lands. This ruling set out criteria for establishing Aboriginal title and emphasized the significance of oral history and traditional knowledge.

• Nicaragua v United States (1986) (International Court of Justice):8 While not directly related to indigenous rights, this case affirmed the principle of selfdetermination, which is fundamental to indigenous rights. It established that states have a duty to respect the right of peoples to selfdetermination and not to intervene in their internal affairs. Cases Highlighting Specific Issues: • Saramaaka v. Suriname (2007) (Inter-American Court of Human Rights):9 This case acknowledged the collective property rights of the Saramaka people, an indigenous and tribal group in Suriname, to their ancestral lands and resources. It also emphasized the need for consultation and involvement of indigenous communities in decisions impacting their lands and resources.

6 (1992) 175 CLR 1

7 [1997] 3 SCR 1010

8 101986 I.C.J. 14

9 IACHR Series C No. 172

Maya Indigenous Communities of Toledo v. Belize (2010) (Caribbean Court of Justice):10 This case affirmed the land rights of the Maya people in Belize, recognizing their customary land tenure system and their right to self-governance. • M. A. v. Denmark (2016) (European Court of Human Rights): This case concerned a group of Greenlandic reindeer herders who claimed that Denmark's decision to issue an oil exploration license in their traditional grazing areas infringed upon their right to maintain their cultural practices. The Court ruled that the government had not sufficiently consulted with the herders or evaluated the potential effects of the oil exploration on their reindeer herding way of life. Cases Related to Environmental Justice: • Standing Rock Sioux Tribe v. U. S.

Army Corps of Engineers (2016) (USA): Key Legal Principles Emerging from these Cases:11 This case involved a legal challenge to the Dakota Access Pipeline, which was planned to pass beneath the Missouri River, a crucial water source for the Standing Rock Sioux Tribe. The tribe contended that the pipeline would infringe upon their treaty rights and pose a risk to their water supply. Although the pipeline was ultimately constructed, the case drew widespread attention to the issues of indigenous rights and environmental justice. Amazon communities: Multiple legal actions have been taken in Brazilian courts to contest deforestation, illegal mining, and other activities that threaten the Amazon rainforest and the rights of its indigenous inhabitants.

These cases typically present intricate legal arguments regarding land rights, environmental conservation, and the safeguarding of cultural heritage. • Free, Prior, and Informed Consent (FPIC): Indigenous peoples have the right to approve or reject any project or activity that could impact their lands, resources, or cultural heritage.

10 BZ Civil Appeal No. 27 od 2010

11 205 F.Supp.3d 4, 2016 WL 4734356 (D.D.C. Sept. 9, 2016)

Self-determination: Indigenous peoples have the right to self-determination, encompassing the authority to manage their lands and resources, govern themselves according to their own systems, and preserve their cultural identities. • Cultural Rights: Indigenous peoples have the right to follow their own cultures and traditions, which are often deeply linked to their lands and resources. • Environmental Protection: Indigenous peoples have the right to live in healthy environments and to protect their lands and resources from environmental degradation.

CONCLUSION:

Environmental justice must consider indigenous rights since indigenous peoples, in most instances, are the frontline protectors of natural ecosystems. Besides being an issue of justice, the recognition and protection of indigenous rights are critical to sustain environmental management. Important Highlights for a Conclusion Self-Determination and Sovereignty - Indigenous powers to govern themselves in terms of land, resources, and politics play a critical role touching on human rights or environmental protection. Traditional Knowledge - The knowledge systems of Indigenous people provide valuable perspectives on sustainable resource management and biodiversity conservation. Implementing these systems into legislation creates a win-win scenario for people and the environment.

Legal and policy reform - Legal guarantees on Indigenous land- rights need to be strengthened in order to avert exploitation and degradation, and meaningful involvement in environmental decision making needs to be ensured. Indigenous Communities and Climate Change and Extractive Industries - Climate change and the induced industries hurt indigenous communities manifestly and worse. To establish a just environmental movement, their stand and knowledge must be placed on the front burner.

Global Responsibility - Governments, corporations, and international organizations must partner with Indigenous communities in the pursuit of environmental justice, respect for treaties, and preventing fresh marginalization. Then together, speaking on indigenous rights and environmental justice creates a more just and sustainable world. Preserving Indigenous sovereignty is helpful for the continuation of different cultures and protecting Indigenous sovereignty supports both the survival of various cultures and the preservation of ecosystems critical to global well-being.