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CISDL Arctic Climate Law Project
   



Arctic Climate Law Project – Guiding Principles

Arctic Climate Law Project – Analytical Framework

Arctic Climate Law Project – Five  Principal Research Themes

  
   
   


Five Key Legal Research Topics

This research, taking into account the agreed principles and analytical framework, will focus on the current dynamics in these areas, under the following themes:

  
   

RESEARCH THEME ONE:  Human Rights Approaches to Climate Change in the North

Lead Researcher: Jessie Hohmann

Collaborators: Prof. Dayna Scott, Dr. Maya Prabhu, Gonda Lamberink

During the COP-11/MOP-1, a petition on behalf of all Inuit of the arctic regions of the US and Canada was submitted to the Inter-American Commission on Human Rights (IACHR).  This petition mainly draws upon the findings of the Intergovernmental Panel on Climate Change, and of the 2004 Arctic Climate Impact Assessment.  Don Goldberg of the Center for International Environmental Law (CIEL) indicates that the current petition to the IACHR is about developing a human right to maintain cultural traditions.  The Inuit argue that their ability to maintain their cultural traditions (which are dependent on snow and ice) is threatened; that their ability to sustain communities through traditional practices is undermined; and that their ability to maintain their homes and shelter is compromised.


Legally, the claim is novel.  First, human rights violations have traditionally been considered in local contexts; this petition makes an explicitly global claim - that the actions of one nation, even at home, can violate the rights of people far beyond its own borders.  Second, it is based on the idea of cultural extinction - the very cultural practices that are jeopardized by climate change, such as the act of going out onto the land, and the skills that develop in this context, it is argued, are required to resist the pressures and the stresses that currently lead Inuit young people into the spiral of addiction and suicide.

One way in which to examine the Inuit claim to a right to maintain cultural traditions is through the currently recognized right to housing.  This right, as expressed in the International Covenant on Economic, Social and Cultural Rights, contains seven elements, all of which must be fulfilled in order for the right to be met.  Among the seven elements are: that housing must be culturally adequate; that its location must allow access to employment, services and social facilities; and that certain services, materials, facilities and infrastructure be available to the dwellers.  These elements take on special significance for the Inuit because of the unique nature of their homes and building materials, and the location and climate-specific nature of their ways of life.

The rights-based approach to climate change might serve to re-frame the climate change debate in human terms - as a moral, social and cultural issue.   As Sheila Watt-Cloutier of the Inuit Circumpolar Conference has noted, however, making a human rights claim in conventional legal arenas is an adversarial approach that may not mesh well with an Inuit emphasis on dialogue. 

Three topics are of particular interest with regards to this theme:

First, how does international human rights law support and influence adaptation efforts? What rights and claims are particularly important, and how do recent developments in international courts and tribunals, as well as international human rights compliance mechanisms, affect human rights obligations relating to adaptation to climate change? More specifically, can a claim be advanced that climate change violates the Inuit right to housing, on the grounds of cultural adequacy?

Second, can the Inuit mobilize human rights law ‘on their own terms’? Neida Gonzalez, Policy Analyst, NTI, explains that Inuit peoples can and should characterize the impacts of climate change as a human rights issue in order to educate the rest of the world on what is occurring in the North. How can international human rights claims best be mobilized and harnessed as part of political and awareness-raising strategies? In and of itself, will advocating the human rights impacts from climate change be sufficient to help the local Inuit people adapt to climate change, and if not, how can such claims form part of a broader local, national and international strategy?  Investigation of this topic would necessarily include a review of perspectives critical of a rights-based approach.

Third, what remedies might be sought in such claims, and how can emerging concepts of compensation and collective responsibility, developed`

in other areas of law, inform the arguments of indigenous peoples and Northern communities in these cases?  Can ‘mitigation by other nations’ provide funds for adaptation, and if so, how could a legal claim be made for such support?

  
   

RESEARCH THEME TWO:  International Climate Change Instruments and the North

Lead Researcher: Marie-Claire Cordonier Segger / Dr. Markus Gehring

Collaborators: Prof. Lavanya Rajamani, Dr. Charlotte Streck, Prof. Dayna Scott

Worldwide efforts to address climate change have culminated into a multilateral treaty regime: the 1992 United Nations Framework Convention on Climate Change (UNFCCC), and its 1997 Kyoto Protocol (KP). Terri Fenge of the Inuit Circumpolar Conference, who served on the Arctic Climate Impact Assessment Steering Committee, argues that Inuit people have only just begun to play a central role in shaping such agreements, and that more engagement is essential. Prof. Gordon McBean of the University of Western Ontario, who serves as a scientist on the IPCC, has noted the serious dangers posed by rising emission levels for the Arctic ecosystems, and the pressing need for the global regime to better address the needs of Northern communities, as this region is already facing significant impacts.

The norms and institutions of the international climate change regime are important to Canada’s north. In particular, three topics will be researched and analysed:

First, how could existing norms and institutions of the global climate change regime (including the UNFCCC and the KP) contribute to the development of strategies for adaptation to climate change in the North? What mechanisms might address the specific needs of Northern communities, especially Northern indigenous peoples, within the context of the global climate change regime? How could Northern communities access cooperation and funding, in spite of their location within Annex 1 (developed) nations? How to adapt this regime in order to take into account the special needs and claims of arctic communities? Should the UNFCCC be amended, is a new Protocol necessary? If so, are there common interests between Northern communities and certain developing nations, such as those negotiating under the Alliance of Small Island States (AOSIS), particularly with respect to “vulnerability” to climate change?  

Second, how is the goal of preventing "dangerous" anthropogenic interference with the climate system, as articulated in Article 2 of the UNFCCC, specifically relevant to the needs and interests of Northern communities? What obligations does this place on different levels of government, on States signatories to the UNFCCC, and on international organizations with designated roles within the international climate change regime, with respect to indigenous peoples and Northern communities? What are the scientific and international legal debates on risk, how do these related to adaptation strategies for the North, and how to ensure strengthened compliance with this objective?

Third, what participation mechanisms and strategies are practical and effective for indigenous peoples and Northern communities to gain access to global climate change negotiations and national climate change policy-making, in order to have greater influence on the policy-making process? How do current conceptions of sovereignty and States affect the voices of indigenous peoples in climate negotiations, and what emerging forms of participation and representation offer increased opportunities for intervention in national and international debates on adaptation? What are the most strategic intervention points for Northern indigenous peoples, and what arguments would support their claims for participation and representation?

  
   

RESEARCH THEME THREE:  Economic Issues and Approaches to Climate Change

Lead Researcher: Prof. Andrew Newcombe

Collaborators: Marie-Claire Cordonier Segger, Dr. Markus Gehring, Prof. Dayna Scott

This research examines the contribution of international economic norms, rules and institutions to the laws and policies governing adaptation to climate change in the North. In particular, it provides an overview and assessment of opportunities and constraints posed by current international economic agreements, national economic policy and rules, and the regulations governing individual and local economic relationships. Three main topics of research have been identified:

First, what are the dynamics between the international trade and investment law regime and local adaptation strategies? How does the international economic law framework, including local, national and international regulations governing trade in services and investment, both constrain and provide flexibility for local adaptation strategies? Are there strategic opportunities for arctic communities to engage international economic law processes, and if so, which intervention points are of greatest relevance?

Second, what international economic law mechanisms might be used to support the claims and adaptation strategies of Northern communities and indigenous peoples? In particular, could the NAFTA Commission for Environmental Cooperation (CEC) be used as a way for arctic communities to ensure the enforcement of Canadian, US and Mexican environmental laws (i.e. making a complaint if environmental assessment laws relating to oil sands projects are not being enforced)?

A third topic might also be worthy of investigation, depending on the results of further consultations. It concerns the availability of property and other forms of insurance in arctic communities in light of climate change.  Is insurance available to persons in arctic communities as an economic instrument to address risks relating to climate change? For example, the “Inuit Perspectives on Climate Change Adaptation Challenges in Nunavut – Summary Workshop Report 2005”, published by Nunavut Tunngavik Incorporated (NTI) identifies the need for harvester’s insurance and/or emergency compensation funds.  Thus, one of the facets of the insurance question that might be explored is: what mechanisms exist to deal with the drastic disruption of household and livelihood when harvesting equipment is lost because of variability in sea ice conditions?   Also of interest is how the problem of a changing Arctic is being approached by the insurance industry?  If climate change is affecting the security of Northern communities, what changes might be needed in law relating to accident and property insurance to ensure that increased risks and burdens do not fall disproportionately on the most vulnerable?  Are there lessons to be learned from the experiences of the victims of Hurricane Katrina to be learned in this regard?

Finally, a cross-cutting paper might be written that identifies sources of funding available to support the development and implementation of adaptation strategies.  This research invokes several themes, including: (1) a human rights/constitutional rights question of whether a rights based approach be used to argue that there is a duty to provide compensation for adaptation to climate change (i.e. climate change as a violation of security of the person); (2)  questions related to land claims agreements, and an investigation of recent innovative mechanisms for funding adapation (i.e. sharing of benefits from the McKenzie pipeline); and (3) questions of access to national and international funding mechanisms (though it is likely that the international community would expect Canada to be the primary funder and so there may be little traction here).  This research would also investigate links between funding and accountability.  If there is legal liability or arguments for political accountability, then these can be used to support the argument for funding mechanisms. The research may need to recognise that the strongest accountability arguments may be based on human rights to culture and livelihoods, the right to food, indigenous traditional resource rights, and transboundary harm (rather than a meta-theory of responsibility based on the inequalities in the international economic system).

Local Laws and Customs

Northern communities are often stated to derive force from their attachment to particular places, landscapes, and livelihoods, and from an ethic of communal living.  These qualities are thought to enhance those communities’ capacity to sustain stable, long-term regimes for the protection of shared resources, including perhaps cultural integrity or a way of life.  From one perspective, climate change adaptation by northern communities may seem to boil down to a string of tactics taken by residents to very small-scale local problems, such as a closed ice bridge, or an evolving hunting schedule and route.  But attention to the dynamic between the international legal order examined in the first three research themes and the local adaptation strategies adopted by particular communities may offer lessons that can be translated into other contexts, and that can be of broad relevance as well.  For example, what we seek to examine is how vulnerable, disproportionately affected communities with little political voice engage with, and resist, a truly global phenomenon. At the same time, we observe how those communities interact with powerful global interests, institutions and ways of knowing. 

One of the obvious tensions within local communities in the Arctic is between the need to demonstrate support for mitigation strategies popular in the South and the desire to exploit the very limited options for northern economic development. On the one hand, aboriginal communities in the Arctic want to raise awareness regarding the impact of climate change on their way of life and cultural survival. On the other hand, the primary means on which these communities depend in order to assert their sovereignty over and use of lands is primarily through economic development which exploits natural resources, such as hydro electricity and natural gas. Deep divisions persist within communities with respect to the question of natural resource exploitation as an emancipatory tool.   As it becomes increasing difficult to survive on the traditional economy, for reasons related to climate change among many others, there is an attendant shift toward a wage economy and gradual loss of traditional and land-related skills. 

The research into local laws and customs pertinent to the question of climate change adaptation in the North will focus on the proliferation of multiple and interacting institutions of governance; the centrality of land claims agreements to local adaptive capacity; and the implications of contested arctic sovereignty, not in a strictly international law or international relations sense, but in situated study of local social dynamics and political economy.  The research falls into the following three themes:

  
   

RESEARCH THEME FOUR:  Inuit Governance Structures and Climate Change Adaptation

Lead Researcher: Prof. Richard Janda

Collaborators: Jennifer Ross-Jones, Lainy Destin, Adrian Smith

This project explores Inuit forms of governance in Nunavut and Nunavik as they relate to adaptation to climate change. The challenge for Inuit governance is to find ways to have local decision-making be in dialogue with and influence decisively national, regional, and global governance networks. We begin with an exploration of the geographic, demographic, cultural, political and economic contexts within which Inuit governance of adaptation to climate change is unfolding. Some key features can be summarized as follows. First, both Nunavut and Nunavik, with some 30,000 and 10,000 inhabitants respectively, are regions with populations that are over 80% Inuit living in collections of small, remote villages and towns. Historically, these communities have been and continue to be isolated from the rest of Canadian society. Second, the Inuit have been gaining increasing political autonomy with the emergence of Nunavut and the ongoing negotiations to create public government for Nunavik. Inuit society is still in the process of transforming into a cash economy and spawning enterprises. At the same time, compensation payments from land claims agreements have given rise to sophisticated investment corporations: Nunavut Tunngavik Incorporated (NTI) in Nunavut and Makivik Corporation in Nunavik. These may be in a position to participate in business opportunities that may come from the opening of the Northwest Passage or the exploitation of wind power  This project explores how these overlapping institutions contribute to the elaboration of Inuit governance of adaptation to climate change. The goal is neither simply to describe what is under way nor to propose a full-fledged action plan; but rather to discern trends and possibilities that might favour and reinforce Inuit adaptive capacity, bearing in mind that it is for the Inuit themselves to engage in the process of governance. The research under this theme will address the following topics:First, how is legitimacy negotiated and established?  How do the different institutions claiming to represent the needs of the population, the public institutions, the land claims organizations and the pan-Inuit organizations (both ITK nationally and ICC internationally) interact with each other with respect to problem solving?  To what extent is the behavior of federal and provincial governments viewed as legitimate to Inuit populations?  How much legitimacy is given to Traditional Environmental Knowledge (TEK) and how is that knowledge communicated?Second, how do Inuit governance institutions negotiate their own “hybrid” nature?  For example, how does the Makivik Corporation balance its private, profit-maximization goals with a decision-making hierarchy that harbours more public, democratic elements (and where the shareholders are the Inuit themselves).  Or, how does it balance its support for the maintenance of Inuit traditions (such as the inclusion of a board of elders as part of the organization’s decision making structure) with the inclusion of “southern” perspectives, namely the marketization of cultural goods? Third, what do we mean by “adaptation”, that is, adaptation to what?  How do we measure the  adaptive capacity of Inuit people and the capacity of their institutions of governance?  To what extent does adaptation to climate change represent a new challenge to be faced by Inuit communities, different from demands for adaptation (social, economic, etc.) of the past? To what extent should adaptation strategies be linked to broader sustainable development goals? And fourth, how should Inuit governance mechanisms approach the tension between individual and collective interests in response to the challenge of adaptation to climate change? We are anxious to avoid the reification of Inuit culture that may result from presuming a unified Inuit vision of adaptation. Yet, we are also conscious of the fact that different Inuit leaders have called for the creation of a unified front to address policy formulation regarding adaptation to climate change. How does the presence of multiple seats of legitimacy impact the formulation of adaptation strategies?  What will be the impact of a more unified Inuit strategy on the current geographic and cultural reality of small isolated communities?  How are the many differences in culture and language currently being addressed within established Arctic aboriginal organizations? And  what would be the impact of an expanded unification effort on relations between arctic aboriginal communities and Canadian public government structures?

 

 
   

RESEARCH THEME FIVE:  Adapting Land Claim Agreements to Climate Change in the North

Lead Researcher: Prof. Konstantia Koutouki

Collaborators: Patricia Ochman, William David (ITK), others from University of Montreal.

William David and Scot Nickel from the Inuit Tapiriit Kanatami (ITK) have noted that in recent decades Inuit have concluded detailed Land Claims Agreements; the James Bay and Northern Quebec Final Agreement, the Inuvialuit Final Agreement, the Nunavut Final Agreement, and the Labrador Inuit Land Claims Agreement. A concern, however, is that with the current pace of climate change, these agreements may not be flexible enough. Four sets of questions are particularly relevant with regards to this area of research:

First, what are the relevant terms of existing land claim agreements, and how might these agreements need to be adapted to address the challenges posed by climate change?

Second, how might existing land claim agreements be used by Inuit people to help address the impacts of climate change, particularly with regards to liability and compensation provisions of these treaties and agreements?

Third, how do these agreements regulate authority over natural resources that are affected by the changing climate and the benefits derived from these resources, and how best to defend the interests of Northern communities and indigenous peoples with regards to these resources? 

Fourth, are the legal structures and processes currently in place in legislation and land claims agreements achieving the desired goals and objectives of the aboriginal people concerned? If not what are the legal modifications necessary for success?

General Comment No. 4 (1991) The Right to Adequate Housing (Art. 11(1) of the Covenant) UN Committee on Economic, Social and Cultural Rights (12 Dec 1991).