The world is connected by parks. Migratory species make their way across vast territories from North America and Europe to Central and South America, Africa, and Asia to habitats spared development to create refuges of biodiversity. Parks also serve as sites where cultural, archaeological, and paleontological resources are preserved and information disseminated. Parks are economic drivers, bringing in billions of dollars globally for heritage and ecotourism. Nearly 15 percent of the earth’s land and 10 percent of its territorial waters are covered by national parks and other protected areas. (Marine-protected areas increased by almost 300 percent in the last decade.) U.N. Env’t Programme-World Conservation Monitoring Ctr. and Int’l Union for Conservation of Nature, Protected Planet Report 2016, at 43 (2016). These benefits have unfortunately come at a significant cost. Parks, wilderness areas, natural monuments, and game management areas (regardless of titles), despite their conservation mandate, often mirror the issues of development. These places have been associated with encroaching into community or indigenous lands, displacing many tens of thousands of poor residents. They have restricted people’s ability to use and subsist on their traditional territory and denied the same individuals a role in the management and conservation of the land.
The threat to indigenous lands from mining, logging, dam construction, or other infrastructure projects is well known. The negative impacts of the creation of national parks and other protected areas are considered less often. From Yellowstone to the Serengeti, the world’s most famous wildernesses were originally the ancestral homelands of indigenous people who cared for and subsisted on them for generations prior to their being “discovered.” At the fifth World Parks Congress (WPC) in Durban, South Africa, issues of justice and human rights associated with the ethics behind these conservation areas were raised. It was determined that “[a] new deal is needed for protected areas, local communities and indigenous peoples,” that ensures better consultation, more effective involvement in the management of protected areas, and that the rights of indigenous peoples be fully respected. David Shepherd, Editorial, Durban World Parks Congress, 14.2 PARKS Journal (June 2004), at 1. Since that 2003 meeting of the WPC, 144 governments have voted for, and the United Nations General Assembly has adopted, the United Nations Declaration on the Rights of Indigenous Peoples (with four governments voting against: Australia, Canada, New Zealand, and the United States). In addition to self-determination and cultural identity, the Declaration made a clear statement that “indigenous peoples shall not be forcibly removed from their lands or territories . . . without free, prior, and informed consent . . . and after agreement on just and fair compensation.” G.A. Res. A/61/295 (Oct. 2, 2007). This is not limited solely to the physical relocation of individuals from their homes; the term “displaced people” also refers to those living in and near protected areas that are uncompensated for restricted access to traditional resources such as hunting and gathering. World Bank, Involuntary Resettlement Sourcebook: Planning and Implementation in Development Projects (2004). Another resolution was adopted at the Seventh Conference of the Parties (COP7) to the Convention on Biological Diversity (CBD) establishing the goal of full and effective participation of indigenous and local communities in the management of existing protected areas and establishment of new conservation areas in compliance with indigenous rights. Conf. on the Parties to the Convention on Biological Diversity, UNEP/CBD/COP/7/21, at 177 (Apr. 14, 2004).
Despite an increasing recognition of the concept of conservation displacement and attempts to clarify, implement, and uphold indigenous rights, much work needs to be done to address the disproportionate burdens faced by indigenous peoples in the name of protecting biodiversity. Recognizing the history of exclusionary conservation, the large-scale displacement from ancestral territories, and the failure to create meaningful partnerships between governments and stakeholders in the name of havens of biodiversity is critical to addressing what is a global issue of environmental justice. As redress for past and continuing injustices is sought, conservation pursuits continue to damage vulnerable cultures and communities. This article addresses the burdens associated with the creation and expansion of the conservation idea, particularly in relation to parks, monuments, and conservation and wildlife areas, as well as the threats on the horizon to this conflicted notion of conservation.
Problem 1: Discriminatory Land Tenure Policy and Exclusion from Decision-Making Process
The most significant threats to indigenous populations are displacement, deprivation of resources, and a lack of equitable protections for land tenure. The failure to recognize that traditional lands are central to indigenous cultural identity, combined with the deliberate exclusion of indigenous populations from decision-making and policy creation in the nation-states where they reside points to colonialism, domination, and discrimination. This displacement in the name of biodiversity (as opposed to empire) has been ongoing in the United States and abroad for more than a century.
In the recent history of the United States, the creation of parks has sometimes resulted from laws Congress tailored to work with impacted communities, with boundaries drawn around private holdings. Joseph L. Sax, Buying Scenery: Land Acquisitions for the National Park Service, 1980 Duke L.J. 709, 714 (1980). If a seller is willing, the National Park Service (NPS) also has used the federal Land and Water Conservation Fund to purchase available land at market rates. The Fund had been used to purchase millions of acres in the United States in all 50 states, and in almost every county. Wilderness Society, Mapping the Land and Water Conservation Fund (LWCF) (2014). National monuments, such as Bears Ears and Grand Staircase-Escalante, generally are created from existing federal lands. Since the creation of the first national park in Yellowstone and the first monuments established by the Antiquities Act, the reception of conservation areas has always been mixed—frequently the result of opposition from politicians in western states. From Theodore Roosevelt’s eleventh-hour designation of Mt. Olympus National Monument to Jimmy Carter’s massive Alaskan withdrawals during the 1970s, issues have been raised with the size and significance of the resources, the degree of actual threat to these areas, the impacts on land uses, the managing agency, and even the constitutionality of the law. Monuments in particular have been referred to as a “special interest boondoggle that sacrificed local populations and the American taxpayers to appease the demands of quasi-religious special interest groups that the land be cleansed of humanity.” Rainer Huck, Clinton Monument Designations Must Not Be Allowed to Stand, Salt Lake Trib., Mar. 23, 2001, at A15. The first subject to this removal of humanity from the vast swaths of land set aside for the conservation of the environment were those Native American tribes removed from their traditional territory. Mark David Spence, Dispossessing the Wilderness: Indian Removal and the Making of the National Parks (2000).
Kantor asserts that “uninhabited nature is a recent construction . . . Native Americans have a history in our national parks measured in millennia.” Issac Kantor, Ethnic Cleansing and America’s Creation of National Parks, 28 Pub. Land & Resources L. Rev. 41, 42 (2007). Governments have removed tribes forcibly without compensation and ignored treaties promising subsistence rights to create parks and monuments. Despite a long history of occupation, places like Yosemite, the Grand Canyon, and Glacier National Park were painted as untouched. Yosemite, 15,000 square miles set aside by Congress in 1890 to protect massive granite cliffs and cascading waterfalls for the public, was once home to the Ahwahnechee. The Mariposa Battalion ruthlessly removed the Native Americans from their homeland to a reservation on the flat plains of the San Joaquin River. Spence, at 107. Congress enacted the Antiquities Act, the law first used to establish the Grand Canyon as a national monument, in response to large-scale looting operations that removed hundreds of thousands of Native American archaeological resources from what had become federal land. At Glacier, commissioners were dispatched by the U.S. government in 1895 to the Blackfeet territory with a proposal to “purchase” tribal land. The Blackfeet resisted the sale outright. However, after a forced negotiation, the Blackfeet agreed to a payment of $1.5 million subject to reserving their hunting and fishing rights in the mountains, securing an anti-allotment clause preventing subdivision into individual parcels, and expressing their unwillingness to sell any more land in the future. Despite recognition of the one-sided nature of the negotiation, a federal district court in Montana nevertheless ruled that the Blackfeet have no treaty right to hunt in Glacier Park. United States v. Peterson, 121 F. Supp. 2d 1309 (D. Mont. 2000). As it currently stands, the Blackfeet may enter the park at no cost but have no further special rights.
Despite the claim that national parks are America’s best idea, this type of displacement at parks is by no means unique to the United States. Questionable interpretations of land rights (often rooted in racist, colonial policies) have resulted in hundreds of thousands of indigenous people being displaced globally, with similar failures to recognize title forcing people to leave the land that is historically, culturally, and economically tied to their communities—sometimes for conservation.
Consider for example, the Peruvian Amazon. On May 11, 2018, the United Nation’s Committee on the Elimination of Racial Discrimination (UN-CERD) issued a report raising concerns over the Peruvian government’s failure to establish effective mechanisms to protect indigenous people’s rights over their lands, territories, and resources. Federation of Native Communities of Ucayali et al., Shadow Report on Peru for the 95th Session (2018). https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/PER/INT_CERD_NGO_PER_30812_E.pdf. A coalition of organizations including the Federation of Native Communities of Ucayali, the Ethnic Council of the Kichwa People of the Amazon, the Institute of Legal Defense, and the National Coordinator of Human Rights submitted concerns in a shadow report to UN-CERD. Peru, a signatory of the UN Declaration on Indigenous Rights, was accused of systematic violations of indigenous people’s rights in the region. Their complaints targeted the San Martin government’s creation of the Cordillera Escalera Protected Area on the traditional lands of the Kichwa people. They further raised issues with the lack of informed consent as well as restrictions placed on Kichwa rights to own, use, and access natural resources. UN-CERD, Observaciones Finales Sobre los Informes Periódicos 22o y 23o Combinados del Perú, U.N. Doc. CERD/C/PER/CO/22-23 (2018). The report found this was a result, in part, of the inadequate procedures for recognition and titling of lands. Id.
In 2016, the Nuevo Lamas Kichwa community, whose homes were overlapped by the protected area, received title for 31 hectares of the 1,650 hectares of the land. For the remainder of the territory, a leasehold agreement was put in place that retained the area under state ownership, granting use and access rights to the community. The titled land is not only insufficient to support the people, but the nature of the contractual agreement means that Nuevo Lamas can lose even these limited rights. Miluska Elguera, ‘Our Children Will Know the Forest’: The Loss of Kichwa Identity through the Creation of the Cordillera Escalera Protected Area, Forest Peoples Programme, Nov. 14, 2017. UN-CERD has called on the Peruvian government to create a process to address land claims, for restitution of ancestral lands, and to guarantee indigenous rights to possess, use, develop, and control their lands through legal recognition in accordance with international standards.
The Nuevo Lamas have filed a legal action against the Regional Directorate of Agriculture of the Regional Government of San Martin seeking to secure recognition of their rights to land overlapped by the protected area. Complaint, Comunidad Nativa de Nuevo Lamas v. Minister of the Environment, SERNANP, Regional Government of San Martín, No. 00649-2-17-0-2208-JR-Cl-01 (2017). Opponents have alleged the claim seeks to eliminate the conservation area; however, the plaintiffs have asserted their desire for the government to continue to protect the forests and the environment as mandated by the constitution, but also to recognize their ownership rights and guarantee access to the natural resources that guarantee their subsistence. Press Statement, Forest Peoples Programme, The Appeal of the Kichwa Community of Nuevo Lamas for the Respect of their Right to Ancestral Territory, Nov. 26, 2017.
Similar problems have arisen elsewhere. For example, set asides in the traditional lands of the Maasai that once stretched from northern Kenya to the Serengeti plains of northern Tanzania are illustrative. See Peter G. Veit, When Parks and People Collide, Carnegie Council for Ethics in International Affairs, Apr. 23, 2004. In the last half-century governments, other ethnic groups, businesses, and wealthy people have set aside a considerable portion of this land as “protected areas,” like Amboseli and Maasai Mara in Kenya and Serengeti and Ngorongoro in Tanzania. Although these lands have attracted tourism and protected wildlife by providing opportunity for game viewing and trophy hunting, more than 100,000 Maasai have been displaced as a result of their creation. Similarly, the San people have been evicted from Botswana’s Central Kalahari Game Reserve. Why the Native People of the Kalahari are Struggling to Stay, Public Broadcasting Service (July 4, 2017). Further, for decades, the Zambian government has created Game Management Areas by displacing and discriminating against the Gwembe Tonga. Lisa Cliggett, Access, Alienation, and the Production of Chronic Liminality: Sixty Years of Frontier Settlement in a Zambian Park Buffer Zone, 73 Human Org. 128, 140 (2014).
In India, human displacement for the protection of specific species has resulted in the removal of countless groups of indigenous people from parks and their buffer zones. The country passed a Forest Rights Act (FRA) in 2006 to give Adivasi and forest dwellers an avenue for claiming rights to land, forest use, and participation in management. Recognition of Forest Rights Act, No. 2 of 2007, India Code (2006), vol. 2. As recently as March 2018, in response to the illegal evictions of the Baiga, indigenous people from India’s Kanha National Park, the National Commission for Scheduled Tribes wrote to the Ministry of Environment and Forests (MoEF) stating that their evictions breached the FRA, demanding that the letter requiring the removal be withdrawn. See Chris Lang, Illegal Evictions of Baiga Indigenous People from India’s Kanha National Park, Conservation Watch, Mar. 16, 2018. Unfortunately, India’s Ministry of Environment, Forest and Climate Change (MoEF&CC) has consistently blocked the implementation of the FRA. For example, an order issued in 2017 by the National Tiger Conservation Authority (a division of the MoEF&CC) has prevented any claims under the FRA in tiger reserves. Memorandum from Vaibhav Mathur, Assistant Inspector General of Forests, to Chief Wildlife Wardens, All Tiger Range States, (March 28, 2017) (on file with author).
Land-rights claims brought by Native American Nations in the United States and those brought by other indigenous nations abroad have been largely unsuccessful. However, a broader recognition of this displacement, particularly in the name of conservation, is a necessary step in advancing environmental justice.
Problem 2: Health Impacts of Conservation Displacement
The adverse health impacts of distributional disparities resulting from siting certain land uses that are often the focus of environmental justice extend beyond typical locally unwanted land uses like toxic waste sites. Research shows that displacement leads to mental and physical health problems, loss of livelihood and resource access, food and water insecurity, loss of culture and identity, and compromised family and social network functioning. Jeffrey Snodgrass et al., The Mental Health Costs of Human Displacement: A Natural Experiment Involving Indigenous Indian Conservation Refugees, World Development Perspectives (2016). One 2016 study examining the mental health costs of the displacement of indigenous Indian conservation refugees found that forced relocation from their traditional territory led the Sahariya people to suffer such results from dislocation relating to environmental protection policies that created a wildlife sanctuary.
The Kuno-Palpur Wildlife Sanctuary in central India was created to protect Asiatic lions in 1981 under the country’s Wildlife Protection Act (WLPA). Act No. 53 of 1972, India Code (2006). The WLPA, which establishes a schedule of protected plants and animals and regulations for their protection, has been attributed to continuing a legacy of targeting indigenous people; removing them from their traditional territories; and banning them from such practices as agriculture, hunting, livestock grazing, and collection of other forest products. Nitin D. Rai & C. Madegowda, The Social and Ecological Impacts of Conservation Policy: The Case of Biligiri Rangaswamy Temple Tiger Reserve, India (2018).
Conservation efforts at Kuno-Palpur didn’t begin until the 1990s. From 1998 through 2002, 24 villages and more than 8,000 people were moved to denotified Forest Department land that was degraded, deforested, and removed from protected status. Snodgrass, at 26. Three villages remained in the park buffer zone, but with restricted access to their traditional resources. The government provided compensation for relocation in the form of goods and services worth $2,100, 2 hectares of agricultural land, a plot for home construction, animal fodder, a cash incentive, and access to public services. Id. at 27. This compensation did not prevent the Sahariya from having to rebuild their economy in their new location completely. In addition to the economic hardships, the villagers’ loss of social support systems, increased depression, higher levels of health stress, and food and water insecurity demonstrate an often unaccounted-for cost of establishing environmental protection areas. Id. at 31.
Problem 3: Resources for Residents Exhausted by Tourists
Conservation areas are justified for purposes of environmental protection and economic development. Evidence shows that the creation of these areas does serve these purposes, but there is also proof that they result in overexploitation of already limited resources, increased wealth disparity, and lost cultural identity. Consider the negative impacts of the “successful” creation of the Annapurna Conservation Area (ACA). Nepal, like the United States, has used eminent domain in the past to create national parks. However, the country took up more participatory models for parks in the 1980s, protecting environmental concerns while still recognizing the needs of local people. See Lawrence S. Hamilton, Daniel P. Bauer, and Helen F. Takeuchi, eds., et al., Parks, Peaks, and People (1993). One such example is the ACA, the largest undertaking of National Trust for Nature Conservation. This is the first conservation area and largest protected area in Nepal, and is home to over 100,000 residents of different cultural and linguistic groups. National Trust for Nature Conservation (NTNC), Annapurna Conservation Area Project (2015) [hereinafter Annapurna Conservation Area Project]. Annapurna’s natural and cultural features have made it the most popular trekking destination in Nepal, and tourism has become one of the most important and competitive sectors of the economy.
Nepal has adopted an integrated, community-based conservation and development approach that has allowed local residents to live within the boundaries, own private property, and maintain their traditional rights and access to the use of natural resources. Villagers are also intended to be included in resource management decisions and share the benefits from tourism. The Nepal government amended the country’s National Parks and Wildlife Conservation Act of 1973 to support this management structure. Robert B. Keiter, Preserving Nepal’s National Parks: Law and Conservation in the Developing World, 22 Ecology L. Q. 591, 598 (1995). Unfortunately, increasing numbers of visitors consume fuel wood at twice the rate of the local people, which has added pressure on already stressed resources. Further, the community is forced to deal with large quantities of solid waste produced by trekkers and hoteliers. See Annapurna Conservation Area Project.
A similar fate met Los Flamencos National Reserve, located in the plateaued region of northern Chile. See Marine Gauthier & Riccardo Pravettoni, Tourism Starting to Bleed the Lickan Antay People of the Atacama Desert Dry, Guardian, Aug. 31, 2016. Formerly dominated by copper mines, this site has been reshaped by tourists, who are drawn to the natural vistas. The indigenous Lickan Antay that live in villages in and around the reserve have survived in the most arid desert in the world based on their ability to manage water in this dry, salt-flat covered region. When the Chilean government created Los Flamencos in 1990, the Lickan Antay negotiated to create the country’s first protected area comanaged by the state and indigenous people. The National Forest Corporation (CONAF), which coordinates the management of protected areas for the government, has found that the collaboration has helped in the park’s management. The framework has allowed for employment and training opportunities for the Lickan Antay, who have created a nonprofit association to collect and redistribute money earned at the reserve. Contracts between the government and communities allow them to benefit from ecotourism while the government concentrates on biodiversity. Unfortunately, the resulting tourist companies ignore the Lickan Antay’s customs and negatively impact the already limited natural resources. The hundreds of hotels, which have been of economic benefit, have overtaxed the already limited water supply. This has left residents with limited access to drinking water, forcing them to turn to more salinated sources for agriculture.
Problem 4: Proposed Size Reductions of Protected Areas
It is egregious that after centuries of discriminatory land tenure laws and policies and the large-scale displacement of indigenous people (sometimes for conservation), the protections for these parks is being eroded by industry-friendly administrations. These monuments to environment and biodiversity often fail to protect their charge. National parks not only are severely underfunded, but they are under threat from reductions in size and protections.
For example, in the United States, the Trump administration has dramatically reduced national monuments such as Bears Ears and Grand Staircase-Escalante. In addition, information and communications are being inhibited as representatives from NPS are prevented from commenting on issues such as proposed legislation related to hunting and fishing, projects directly outside of park boundaries impacting the parks, and climate change. See Dana Hunter, The Trump Administration’s Effect on National Parks, Scientific American, Aug. 28, 2017. Department of the Interior employees received orders in 2017 not to send out news releases or create social media posts, blog entries, or official website content, and to consult with senior officials prior to speaking with the news media. Coral Davenport, Federal Agencies Told to Halt External Communications, N.Y. Times, Jan. 25, 2017, www.nytimes.com/2017/01/25/us/politics/some-agencies-told-to-halt- communications-as-trump-administration-moves-in.html.
Further, regulatory rollbacks have reduced NPS authority to regulate the sale of bottled water on public lands and impacted these environments. The NPS estimated that the original ban (enforced in 23 participating parks) prevented between 1.32 and 2.01 million disposable plastic water bottles from being purchased, used, and discarded in the parks. National Park Service, U.S. Dep’t of Interior, Disposable Plastic Water Bottle Recycling and Reduction Program Evaluation Report 8 (2017). The reduction would have saved between 276 and 419 cubic yards of landfill space per year and prevented between 93 and 141 metric tons of carbon dioxide emissions. Id.
Actions in and on the periphery of conservation areas also negatively impact these environments in a significant way. For example, in the United States, a recent report from the Center for Biological Diversity estimated that 490,000 pounds of pesticides were dumped on commodity crops like corn, soybeans, and sorghum grown in national wildlife refuges in 2016. The 562 national wildlife refuges in the United States include forests, wetlands, and waterways vital to thousands of species, many of which are protected under the Endangered Species Act. Intensive commercial farming, which is increasingly common on refuge lands, has been accompanied by escalating use of toxic pesticides that threaten these sensitive habitats. Refuges like Klamath Basin National Wildlife Refuge Complex and Chesapeake Marshlands National Wildlife Refuge Complex—in total more than 270,000 acres of refuge land––were doused with agricultural pesticides in 2016. Hannah Connor, Center for Biological Diversity, No Refuge: How America’s National Wildlife Refuges are Needlessly Sprayed with Nearly Half a Million Pounds of Pesticides Each Year (2018), 5.
The United States has not been alone in its shrinking away from environmental protections. New Zealand’s park service hit the century mark in 2016. The country’s 14 protected areas are administered by its Department of Conservation. In 2010, the New Zealand government proposed removing some national parks and conservation areas from the protection of the Crown Minerals Act, which prohibits mining in those areas. Geologists in 2008 released a report estimating the potential value of seven minerals in these protected areas at $140 billion, and an additional $100 billion in the Southland lignite field. A large number of submissions opposing mining prevented this action from being taken. However, less than a decade later, the New Zealand government again suggested, in its West Coast Economic Development Action Plan, an openness to disposing of conservation land by identifying “low value” conservation land that could be disposed of, streamlining mining consent processes, and preparing a strategy for a road through Kahurangi National Park. See West Coast Regional Council, Tai Poutini West Coast Economic Development Action Plan (2017).
In the United States, courts seem to be willing to protect these places from environmental decline, though the outlook for indigenous rights is less promising. Despite an administration that has pushed hard for extractive industries, there have been some victories in U.S. courts recently regarding resource exploitation. A Montana district court, for example, ruled that the state’s Department of Environmental Quality (MT DEQ) must complete a more extensive environmental review of Lucky Minerals’ drilling plan in the Emigrant Gulch area just north of Yellowstone National Park. Plaintiffs argued that MT DEQ had failed to sufficiently consider the impact of a full-scale mine development on Park County’s environment and economy, the risks posed to grizzly bear and wolverine populations, or water quality impacts to Yellowstone River tributaries. Park County Envtl. Council and Greater Yellowstone Coalition v. Montana DEQ and Lucky Minerals, Inc. No. DV 17-126 (D. Mont. 2018). The court held that the DEQ had given “unwarranted deference” to the mining company’s proposal and ordered a more extensive review. Id.
The Court of Appeals for the Ninth Circuit also upheld a 20-year ban on new uranium mining claims throughout the million acres adjacent to the Grand Canyon National Park––keeping mine-waste pollution from the streams and aquifers of the Colorado River and recognizing the claims of the Havasupai to that place. See National Mining Assoc. v. Zinke, No. 14-17350 (9th Cir. 2017). Despite these rulings, the future of parks and other conservation areas is unclear. Decreasing U.S. regulations and shrinking borders have the potential to destroy lands already taken from indigenous people.
Environmental Justice Considerations
Globally, indigenous peoples and local communities have customary rights to more than 50 percent of the world’s land; however, they possess legal rights to only 10 percent. Victoria Tauli-Corpuz, et al., Cornered by Protection (2018). Increasing conservation areas threaten to strip away more of these rights, creating conservation refugees.
Environmental justice requires a more thorough consideration of the impacts of conservation areas on indigenous people––both at the point of creation and in management practices. Such action will benefit the human and natural world. For example, studies show indigenous peoples and local communities invest up to $1.71 billion in the conservation of forest land in the developing world, a fraction of the budget of designated protected areas, with at least equal results. Tauli-Corpuz, at 8. Further, the rate of tree cover loss is less than half on these lands than elsewhere. Where that land is owned by indigenous people and local communities, the protection is even greater, sequestering at least 24 percent of the total carbon stored aboveground in tropical forests. Alain Frechette, Katie Reytar, Sonia Saini, and Wayne Walker, Toward a Global Baseline of Carbon Storage on Collective Lands (Nov. 2016). This clearly demonstrates the need to and benefit of creating a rights-based approach to conservation that considers and includes indigenous peoples in establishing equitable land tenure policies, just park creation and management strategies, and more responsible conservation practice.