Environmental justice

Environmental restorative justice is relevant with respect to healing the earth, protecting the rights of indigenous peoples and dealing with various environmental harms, crimes and injustices.

It acknowledges the damage done to the environment and the communities dependent on them and allow culprits to take responsibility and necessary steps to do what is right.

Besides compensation and damages, the legal principle of restoring an aggrieved party to its previous rightful position is not new. The Permanent Court of International Justice in 1927 held in the Chorzow Factory case that any breach of an engagement under international law involves an obligation to make reparation.

The right to self-determination, especially of indigenous people, was marked with great challenges in the post-colonial world. The Criminal Tribes Act, 1871, 1911, and 1924 allowed the British to criminalize South Asian indigenous tribes, but the Indian government abolished them after becoming independent. 

It introduced the Tribal Forest Protection Act, 2004 and the Forest Rights Act, 2006, which recognizes the rights of forest-dwelling tribal communities and other traditional forest dwellers to forest resources, and protects them from unlawful evictions, because forests are ancestral lands for generations of forest dwellers.

The US recognizes the rights of Native American tribes to common ancestral land and entitlements to the benefits arising from the resources. Canada accepts the occupancy rights of the ‘first nations’ over their common lands. Australia acknowledges the native population’s rights to their ancestral land under the Australian Aboriginal Land Rights (Northern territory) Act, 1976, and Pitjantjatjara Land Rights Act, 1981.

In 1977 the International NGO Conference on Discrimination Against Indigenous Populations in the Americas recognized the rights of indigenous people for the first time. The International Labour Organization introduced the Indigenous and Tribal Populations Convention, 1957 and the Indigenous and Tribal Peoples Convention, 1989 to protect the rights of indigenous and tribal people.

The UNGA designated 1993 as the International Year of the World’s Indigenous People, and thereafter, it proclaimed the International Decade of the World’s Indigenous People (1995-2004). The UN Declaration on the Rights of Indigenous Peoples was adopted by the UNGA on September 13, 2007, backed by 144 states.

During the cold war – where balance of power, stability and state security, instead of human security, were prioritized – an anti-imperialism stance was taken by both sides to justify their political and economic systems. The US claimed that the Soviet Union was a totalitarian regime, while the latter blamed the former for exploiting the land and resources of developing nations through multinational corporations.

Restorative justice is instrumental in repairing the damage done by drawing the world map under colonialism. Under the principles of ‘uti possidetis’, colonial borders became permanent. This has not only violated the native population’s rights but also transformed their relationship with their land – which is evident from instability in the Middle East – due to being arbitrarily divided and distributed by colonial powers under the Sykes–Picot Agreement, 1916.

African nations are struggling to combat neocolonialism and the damage caused by uti possidetis by relying upon self-determination and restorative justice. But the rulers of these developing nations continue to rule like their colonial masters – by depriving their people of their rights, land and resources, and using the doctrines of non-intervention and territorial integrity to combat international law’s application and internal opposition.

Nations combating neocolonialism through environmental restorative justice, which recognizes the claim of indigenous people on their land and resources, ensures their survival and the protection of biodiversity since both are interlinked. Exploitation of the indigenous land, its natural resources, and the native population was seen as affordable labour under slavery or the indenture system.

Environmental restorative justice can, thus, save such nations by undoing colonial borders that are dividing people of the same tribes and families, and recognizing their claims on their land which can ensure the protection of biodiversity.

In November 2023, an Ecuadorian appeals court returned the Siekopai nation the biodiverse territory of Pekeya after more than 80 years. In 2023, however, the interim government of Sindh gave up 52,700 acres land, and the caretaker government of Punjab handed over at least 45,267 acres land for corporate farming.

But, the Balochistan High Court in the Sher Zaman case and the Peshawar High Court in the Noorani Gul case accepted the indigenous communities’ claims over their ancestral land.

There are several housing projects that were constructed over indigenous land in Sindh. If such companies go broke, declare bankruptcy or defaults, then the indigenous peoples of Sindh can reclaim them, and the government and the courts can restore them and undo the great injustice.

The writer is a lawyer and a faculty member at the Department of

International Relations, University of Karachi.