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“Sadly, I think that the international community has largely left out the important role of indigenous peoples and forest dwellers from climate conversations”.

Aug 18, 2022
Dr. Kinnari Bhatt is founder of Surya Advisory, an ethical business and just transition legal advisory firm. Kinnari is a practicing solicitor, has a PhD and is widely published. She is the author of the book Concessionaires, Financiers and Communities: Implementing Indigenous Peoples Rights to Land in Transnational Development Projects published with Cambridge University Press and is a panel expert on land rights and indigenous rights with the Independent Redress Mechanism of the Green Climate Fund.

Praveen Gupta: Why are land rights so important? Particularly forest lands? What makes indigenous people a critical component of this?

Kinnari Bhatt: Simply put, because of the relationships that indigenous peoples, local communities and forest dwellers have to land. It is a non-monetary, reciprocal and respectful relationship of human tendering, stewarding and protection of intact forests. That is not something to be explored and exploited based on economic commodification of land.

We know that the successful human tendering, stewarding and protection of intact forests, nature and forest landscapes is now directly linked with secure, formal or customary community tenure over land, territory and resources.  And heavy hitting science publications tell us that securing indigenous peoples and forest dwellers rights to land, particularly in forested areas will go a long way in reducing carbon emissions, protecting our largest carbon sinks and keeping carbon in the places where it is meant to be.

Climate change generally tends to frighten people but nature strikes a different chord in the heart. It is valued and this is a very different narrative. If we value nature, we value intact forests, biodiversity in all its forms. Securing land rights, strengthening local indigenous led governance and sustaining those has to be our number one priority.  Sadly, I think that the international community has largely left out the important role of indigenous peoples and forest dwellers from climate conversations.

Lawyers also need to get on board but I think that this topic falls into the ‘too radical’ box for many of them. Actually I think it would be very helpful for lawyers to start to understand property rights in their relationship with indigenous rights as our legal frameworks are systemically rooted in dispossessing indigenous people. Many practising lawyers sitting in global legal centres like London do not see these connections or do see them and think of them as part of normal costs of doing business. This is an out of touch legal mentality and at its essence, quite colonial.

We need to understand these problems at the root and find solutions which go back to first principles of equity, inclusion and sustainable development. This means re-writing basic rules. So it’s radical but that sort of transformative change in legal thinking and practice is urgently needed. It cannot be ‘Business As Usual’ (BAU). Lawyers need to support this although for many that’s a controversial proposition.

PG: How effective is the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)?

KB: I think it’s been an effective law and development tool for two reasons. First, as it finally puts the rights of indigenous peoples to social justice, equality, non-discrimination, development and dignity into a legal document –  albeit one that is not binding on states.  Crucially, the UNDRIP places indigenous peoples’ rights into part of an historical set of rights based on land and a history in which indigenous peoples’ had rights forcibly removed. That includes the right to freely pursue ones economic, social and cultural development and the right not to be forcibly removed without consent or just compensation.

Second, I see the UNDRIP as a living document which has been valuable for articulating the special rights of indigenous peoples’ and placing them in both an historical and contemporary lens. These are as important today as they were in the past. Indigenous peoples’ face threats from governments and companies for scaling up projects for natural resource extraction, biodiversity preservation, energy and infrastructure needs and the critical minerals needed for our capital and technology heavy energy transition – think of all those batteries and components for solar, for instance.

Toady’s conflicts, even killings and criminalisation, are actually still based on the same historical problem – the lack of legal recognition of land rights at the local level. This lack of legal recognition creates a vacuum which can be framed by governments, politicians and companies as trumped up charges of indigenous peoples’ causing environmental or biodiversity destruction, being anti-development or anti-green.

The book is original as it traces the hybrid structuring of a global jurisprudence of indigenous rights, one which includes public forms of law and regulation, private contractual mechanisms, compliance and project finance arrangements. It is the first book which elaborates on the role of financial institutions in project finance lending regarding energy projects and includes helpful steps to adapt traditional legal approaches exacerbating these issues. It speaks of current debates on how we can implement sustainable finance and just transition outcomes for indigenous communities into our economic value chains.

In our pursuit of a sustainable future it is imperative that decisions around the land and resources needed for our global transition and to meet the Sustainable Development Goals (SDGs) include at the earliest stage of planning, local community and indigenous led participation. For that we need to build multi-level and multi-stakeholder capacity about the social, environmental and developmental value of indigenous rights and I think for this endeavour the UNDRIP is useful. Especially when it is discussed alongside things such as the IPCC report which makes the strong case for indigenous rights and stewardship as a natural solution.

That said, there is room for improvement in the implementation of the UNDRIP as part of the UN Guiding Principles on Business and Human Rights (UNGPs). This hasn’t been comprehensively looked at yet. As a starting point we need to conduct large scale private sector awareness raising and then go deeper into a number of practical issues such as the development of effective mechanisms at project and national level and free, prior and informed consent (FPIC) protocols for engagement.  The UNDRIP has not had a fruitful ‘implementation’ conversation with the UNGPs yet but hopefully this will change.  

PG: Local communities and indigenous people continue to live under several threats. Scaling-up efforts to secure community land rights represents the world’s single greatest opportunities to act?

We also now know that there is a link between protecting land rights, keeping forests intact and the prevention of future pandemics. So there is a multiplier effect and securing land rights is a completely viable option.

KB: Yes, I agree. We know that ensuring indigenous land rights leads to two to three times less deforestation, increased levels of biodiversity and reduced emissions – making this approach more effective than virtually any other strategy. We also now know that there is a link between protecting land rights, keeping forests intact and the prevention of future pandemics. So there is a multiplier effect and securing land rights is a completely viable option.

Many great organisations and people have been working in this area for years. I think the global community has to give them far more support so that they can continue this and double down on the work that has already been done. This entails not only using policy, law and legislation that recognise rights to land and biodiversity but also nail that through the lens of intergenerational guardianship. We now have to take and apply this to many different contexts of just transition, business and finance.

PG: How do the design and coherence problems within financial & commercial legal and regulatory frameworks work to routinely displace land rights?

KB: There are a number of design and coherence deficits. Corporates and financiers have developed a variety of tool and standards aimed at identifying, measuring and mitigating the risks of investing in sustainable development projects that have the potential to harm local communities and indigenous people (LCIPs). I think that these tools have the potential for empowering and including LCIPs in development projects but current market standard legal terms and ESG frameworks are focused on shifting ESG risk away or relegating risks from the responsibility of financiers and companies. Over 20 years of complaints to ombudsman mechanisms that while these instruments are good at identifying and mitigating risk to corporations, investors and financiers – they are not adequate for producing human rights or environmentally compliant outcomes for communities.

There are shortcomings in the content, timing, authenticity and a lack of understanding of the private financial architecture in which they are embedded. Here are three design and coherence problems:

1. Current tools and standards are embedded within the private financial legal architecture of a given project and its surrounding terms, practices and culture – all of which have the capacity to sideline LCIP considerations at key moments in the project life cycle.

2. Market practice around the design and implementation of action plans, performance standards and loan agreements, mean that the legal content fails to capture the full constitutional, national, regulatory and ombudsman legal ecosystem which applies to a project.

3. Action plans and lender performance standards enter the project ecosystem too late to make any meaningful impact. Project timeframes do not allow for developing preemptive and practical FPIC policies and protocols, land and benefit sharing agreements or for inserting a culture of do no harm at early design stage.

There are more. I am producing a policy paper on this issue (coming out soon) and what we can do to fix it.

PG: Why are communally held land rights or those under traditional and collective ownerships often not recognised? What in your view is the status of women?

KB: Many reasons but in my experience, most of them come down to economics – governments and investors want to exploit land and natural resources – and prejudice that indigenous people are not capable or able to govern their own territories. This has been the rationale since colonial times and it continues – those with power treated the indigenous people as dispensable and forests as commodities. Governments were and continue to be instrumental to dispossession and criminalisation of communities, and now more and more so along side with companies and financiers. Our economic and legal systems are weighted in favour of continuing this situation.

I think things are changing (slowly) due to societal pressures, litigation and investor concerns. And we also have growing attention to these issues within EU laws and the British government is taking indigenous rights seriously in its international climate finance agenda. We need to see if the commitments are honoured and how the money is disbursed.    

From what I understand, women face specific barriers to accessing their land rights so it is important to look at these issues. Experiences of indigenous women are different from indigenous men and women’s issues tend to be neglected or subsumed by male perspectives.

From what I understand, women face specific barriers to accessing their land rights so it is important to look at these issues. Experiences of indigenous women are different from indigenous men and women’s issues tend to be neglected or subsumed by male perspectives. I think that women’s land rights are being talked about more now. However more investment is needed to help NGOs on the ground address legal barriers and provide legal, institutional and empowerment support for reforming and implementing land frameworks to take women’s issues into account.

I mean we can all find commercial and constitutional laws of a country but is it that easy to find family , inheritance and succession laws – laws governing household and familial relations, if they even exist in the first place.  And this is a problem but a problem that lawyers can help to fix.

I would like to stress that I am not a women’s rights expert and for those that are interested in knowing more I encourage them to follow to the trailblazing work of Resource Equity.  

PG: What needs to be done to secure land rights as part of the ESG?

KB: Well we need to get to the heart of the matter – money and the economic incentives and supporting legal structures which cause dispossession and deforestation.

At the national and local state level there is a need for legal and institutional capacity building and then policies/subsidies that incentivise protection and sustenance of land and forest rights.  There is also the work that need to be done in empowering local communities to know and use their rights. This obviously comes with hazards for those communities and so this needs to be done and scaled very carefully. 

Another pathway would be for companies to first of all educate themselves on the ‘S’ in ESG and do risk assessments of whether there are human rights and land related exposures within their supply chains – not just tier one but further down. They need to allocate money and time to this process. They need to set up funds to assist suppliers further down the chain to do the due diligence and they need to think about their supply contracts. There needs to be a more than compliance ‘tick the box’ approach but I think the vast majority of companies and C-suite first need to educate themselves on this issue and take it seriously by devoting senior time and budget to the work and hiring of experts if those are not available in-house.

Beautiful corporate policy statements will no longer cut it and in fact, companies should be far more concerned about litigation, negative publicity and loss of customers if they are unable to back up their statements with action and implementation.  Or for banks that invest in these sorts of projects – worried about having to put more money into their prudential regulatory obligations for maintaining capital as that is coming, I think.

Picture of the ‘Kinnera’: “A rare stringed musical instrument that my mother named me after – with a slight spelling change. The origin of the ‘Kinnera’ can be traced back – to the 4th century AD – to the Chenchu tribe who were part
of the Nallamalla forest (and later to other forest tribes & forest dwellers in India).

PG: Why and how are land rights coming under pressure from greenwashing – say carbon credit projects?

KB: This is an area that we need to be really mindful of. There is so much to say. I’ll start with what we don’t want and then what we do want.

What we do not want at any cost are situations where any type of investment and finance to or with communities is done through traditional market based legal and compliance methods which can have disastrous impacts on communities.  We need to heed lessons from some of the awful outcomes of microfinancing in places like India where vulnerable people lost land and livelihoods and committed suicide because they could not repay loans. Any investment vehicle designed for sustaining long term stewardship and economic independence of communities must be structured and governed in new ways.

We need new finance norms and principles based on trust and crucially, rooted in legal norms found in the human rights and loss and damage fields. This is not unheard of as the mandate of the Green Climate Fund (GCF) – the funding mechanism for the UN Framework Convention on Climate Change (UNFCCC) is grounded in principles of equity and addressing vulnerabilities. And the GCF emphasises transformation and paradigm shift approaches to finance – not BAU.

We need to translate these broad legal principles into indigenous led structures and compliance mechanisms so that direct access to finance for communities becomes possible and scalable.  I think that this is going to be a challenge for our legal and economic structures and BAU mindsets –  we need more spaces for radical thinking. Large donors and funders must be prepared to give up space by re-thinking traditional modes of compliance and verification requirements, if they want to be part of this solution.

We will need to investigate what types and kinds of partnerships are possible with different players and whether they are open to being more flexible. We need to do things differently – that is a big responsibility and a challenge but an exciting one. I think that for too long they have overestimated risk and underestimated the benefit of giving direct funding to groups.

I am also quite concerned about the push towards conservation and biodiversity finance and the overall 30×30 agenda as this has the potential for new forms of encroachment and displacement. I am beginning to see human rights principles being developed but as with all things, the devil will be in the implementation. But with all of the instruments that will be put on the table soon – carbon credits, cooperatives, debt for nature swaps etc, the essential point is that they must be driven by indigenous communities and local intermediaries that hold trust with those communities. 

PG: Many thanks Dr. Bhatt for throwing light on some very critical and sensitive areas of your work. Also, appreciate insights into your book. I am sure it will prove to be a pathbreaking work.

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