A joint opinion piece by Blue Ocean Law and PANG
The UN Oceans Conference in New York representing the first time in modern history that government representatives and civil society had gathered to focus their attention on the health and well-being of the world’s oceans and all those who depend upon them. The significance of the meeting, coming at a time of rapid technological and environmental change as well as a shifting geopolitical climate, should not be understated. The Conference itself, along with Sustainable Development Goal (“SDG”) 14, symbolise recognition of the ocean’s vital importance to human life, and have highlighted major areas of concern, such as ocean acidification due to climate change and other causes, overfishing and fisheries management, and marine pollution.
While we applaud the convening of the Oceans Conference and are optimistic regarding its outcomes, certain oversights and exclusions threaten to undermine the substantial progress that could be made towards reversing the destruction of marine environments and mitigating those impacts on peoples and cultures. Foremost among these is the absence of not just indigenous voices, but the concept of the special rights possessed by indigenous peoples and communities, many of whom are particularly dependent upon ocean resources, and thus particularly vulnerable. Indigenous voices have historically been marginalised or ignored in the context of multilateral state negotiations, and have only recently been incorporated into discussions related to climate change or specific instruments devoted to the codification of indigenous people’s rights under international law. This exclusion of the historical stewards of lands and seas is not just a mere oversight, but one that is partly responsible for the rapid rate at which our ecosystems have degenerated in the 20th and 21st centuries, as well as the substantial harms endured by indigenous communities worldwide as a result.
The international community must realise that failing to incorporate the rights of indigenous peoples into these fora leads to a failure to translate goals into reality. Indigenous communities, with their vast array of traditional knowledge and sustainable practices, are a largely untapped resource when it comes to responsible stewardship of shared commons such as the ocean. Their voices must be heard, and their rights respected – not merely because indigenous practices are tried and true strategies for effective ocean governance – but because international law requires it.
Under international law, the principle of free, prior, and informed consent (“FPIC”) with respect to indigenous communities is triggered whenever major activities which threaten to impact indigenous territory are formulated. FPIC should be sought in the case of any large-scale development or extractive activity, including phenomena such as experimental seabed mining, other onshore or offshore extractive activity, fishing regimes, and other major construction projects. Unfortunately, in the Pacific Islands, a largely indigenous region, numerous large-scale projects have gone ahead without the consent, free or otherwise, of indigenous communities. Difficulty enforcing regulations and oversight at the government level due to issues of capacity and corruption has further exacerbated physical, social, and environmental harms throughout the regions.
To give just a few examples, there are numerous mines scattered throughout the Pacific Islands that not only fail to make money, but have led to significant contamination of both marine and terrestrial environments (e.g. Gold Ridge mine in the Solomon Islands, the Ramu Nickel mine in Papua New Guinea). In addition, exploratory seabed mining in PNG’s Bismarck Sea and Tonga’s waters has reportedly already impacted local fishermen and indigenous communities. In many cases, agreements have been formed directly between governments and multinational companies, bypassing the interests and consent of local and indigenous communities.
Such old ways of doing business do not belong in a 21st century model which aims to avoid the scorched earth approaches of the past when it comes to development and resource management. Rather, responsible businesses and governments should form coalitions and encourage dialogue with local and indigenous communities. Again, there are multiple reasons to do so. First, because it is a best practice and an emerging norm of international law; second, because such approaches have historically proven more successful for all stakeholders than exclusionary methods, which have often led to conflict, human rights violations, and liability claims lodged against both government and private actors; and third, because we can no longer afford to pollute and destroy our environment at the rate we have been going, especially for the extraction of non-renewable resources.
As the Oceans Conference comes to a close, states and civil society will move forward with numerous projects based on outcomes from the conference. It is not too late to incorporate indigenous voices into these newly envisioned initiatives – particularly in the Pacific region – and ensure that a novel, 21st century regime of ocean governance pays full respect to the sustainable traditions and cultural practices of our ancestors.
First published by PACNEWS