Climate change, overlapping laws and the rights of indigenous and forest-dwelling people

By Johanna Leggatt

For MLS Associate Professor Maureen Tehan, winning the prestigious 2019 Certificate of Merit in a Specialised Area of International Law was satisfying for several reasons.

Firstly, there was the methodology that Tehan and co-authors Professor Lee Godden, Associate Professor Margaret Young and Professor Kirsty Gover used to write their work, The Impact of Climate Change Mitigation on Indigenous and Forest Communities (Cambridge University Press, 2017).

“We knew that we wanted it to be a jointly-written monograph, not an edited book, because we wanted to capture the different approaches that we each brought,” Tehan tells MLS News after returning from Washington, where she and her co-authors received the award.

It’s a really challenging process of jointly authoring a book, of reading and critiquing, so the award is a fantastic recognition of the methodology.

Equally rewarding was the recognition of the subject matter, in particular the judges’ positive comments on the way the authors shed light on how the United Nations scheme REDD+ (Reducing Emissions from Deforestation and Forest Degradation) affects indigenous and forest-dwelling communities.

REDD+ was designed to reduce emissions from deforestation by providing incentives, sometimes financial, to retain forests.

“We became concerned about the juxtaposition of the idea of how best to save forests in developing countries and the lack of regard for how it would affect indigenous communities who had customary law interests, or forest-dwelling communities who used the land for sustenance and so on.”

What the authors found was that overlapping laws — local, regional, national and international — made a consistent approach to indigenous and forest-dweller rights extremely difficult.

“There are a lot of elements of REDD+ that are positive, of course, but we found that once countries start using the scheme it becomes complex, as various countries have different local, regional and national systems of law and of governing forest management,” Tehan says.

“Our primary finding was that when you have such a complex set of legal regimes you will inevitably have inconsistencies and conflicts that are not necessarily going to protect people’s rights at a local level.”

A recent decision by the Indian Supreme Court, Wildlife First v the Ministry of Forest and Environment (2019), is a perfect example of these competing laws at work.

As Tehan points out, India has had a Forest Rights Act since 2006 and part of the Act decrees that indigenous people can stay in the forested area only once their tenure is recognised at a state level rather than a national level.

“More than a million indigenous people face being expelled by this decision under the Forest Rights Act because they had failed to establish their right to occupy, which is to be determined at a state or regional level,” Tehan says.

“This is the kind of complexity you get when you have competing local legal regimes.

So the main aim of the book was to make some general observations for those working with people on the ground as to how REDD+ works at a national, regional and international level.

Finally, the book has been a triumph of collaboration.

“We’re four researchers, we work in different areas, but we all work at Melbourne Law school,” Tehan says.

“And the fact that we could do this speaks to the strong research environment that exists and the importance of collaborative work that the Law School fosters.”