Legal strategies to expand indigenous governance in climate change adaptation

Concerns about the impact of climate change are triggering adaptation and mitigation responses. These responses implement concepts of governance that, among other issues and interests, reflect world-views about the function of law in governance. Notably absent from these developing governance frameworks -and, thus, the responses to climate change - is respect for indigenous rights in spite of the affirmation of such rights in international and domestic law. Indigenous people are involved in climate change governance because of three distinct roles: they are citizens within the general population; many are vulnerable citizens; and their indigenous status gives them additional interests and rights. Indigenous rights can exist within the domestic legal order of nation-states or be independent of (and to some degree supervene) nation-state sovereignty. This chapter considers literature from a range of disciplines, identifying the opportunities and barriers to empowering indigenous governance in the context of climate change. It begins with a critique of the concepts of adaptation and resilience relating to climate variability and climate change and the implications for sustainability governance. These themes are further explored through an analysis of international indigenous rights-based approaches, and the evolving approaches to indigenous self-determination. The current climate regime development of REDD+ (reducing emissions from deforestation, degradation and enhanced conservation of forests in developing countries) provides an example of their implications for future sustainable management of climate change impacts and adaptation options. This aim of the chapter is to highlight the issue of indigenous rights as an important - and currently undermanaged - legal aspect to consider in climate change governance responses. New measures to adapt to climate change offer an opportunity to characterise contemporary natural resource governance with respect for indigenous rights in line with international law and strengthening legal principles. Should this opportunity be lost, it will represent a backward step for both environmental law and indigenous justice.