Human rights implications of the climate change regulatory framework on indigenous peoples’ lands in Africa

Abstract

There is increasing certainty about the global reality of climate change and its negative effects on society. In Africa, owing to a way of life that is culturally and collectively dependent on land and its natural resources, actual and projected evidence shows that indigenous peoples are affected than other populations by the adverse impact of climate change. Indigenous peoples will also be adversely affected by the impact of climate change response measures, particularly adaptation process in accessing funds and the REDD+ mitigation initiatives on their land. Consequently, this thesis examines the extent of protection accorded to indigenous peoples‟ land tenure and use against the backdrop of relevant global, national and regional climate change regulatory frameworks. Using Zambia, Tanzania and Nigeria as case studies, the thesis finds that there is a trend towards inadequate protection of indigenous peoples‟ land tenure and use in the domestic climate change regulatory framework for addressing the adverse effects of climate change and response measures in Africa. The inadequate protection of land use and tenure has negative implications for indigenous peoples‟ participation, carbon rights (a new form of property rights in the forests) and benefit-sharing, as well their access to grievance mechanism and remedies. In response to the inadequacy, the thesis demonstrates that it is incompatible with the obligations of states and a breach of crucial rights guaranteed to indigenous peoples under regional human rights instruments. The thesis then highlights the potential in the regional climate change regulatory framework and particularly, the promotional, protective, interpretive and assembly entrusted functions of the African Commission on Human and Peoples‟ Rights (the Commission) as specific channels by which the regional application of human rights can protect the land rights of indigenous peoples in the context of climate change in Africa. Notwithstanding these potentials, reforms are necessary at the international, national and regional levels for effective protection of indigenous peoples‟ land rights in the context of climate change impact in Africa. These reforms include the reconceptualization of principles of „sovereignty‟, „country-driven‟ and „national legislation‟ at the international level, and at the national level, the creation of a new stand-alone regulatory framework or harmonisation of national legislation relating to climate change to respect indigenous peoples‟ land rights. At the regional level, there is need for an improved interaction between climate change related institutions and initiatives with human rights mechanisms and an official regional policy statement on the protection of indigenous peoples‟ land rights in the light of climate change impact in Africa.