The need to include indigenous peoples as ‘expert’ consultants in India's Apex Committee for Implementation of the Paris Agreement

In addition to marking the fifth anniversary of the Paris Agreement, ¹ the year 2020 was momentous, because despite a supervening pandemic, concerted environmental activism across the globe, successfully sustained the momentum built for climate action. As we ushered into a new decade, State Parties’ Nationally Determined Contributions (NDCs) under the Agreement, came into force.

NDCs are a yardstick of a State Party's level of commitment to climate action for the next 5 years. ² Their realisation is pivotal to accomplishing the overall target set in Paris, which is to limit global temperature increase to well below 2^oC, preferably 1.5^oC, compared to pre-industrial levels. Cognizant of this, the Government of India has recently constituted a high-level ministerial committee for the implementation of the Paris Agreement, namely the Apex Committee for Implementation of Paris Agreement (AIPA). The committee was formed on 27 November 2020, and its creation was notified in a gazette by the Ministry of Forest, Environment and Climate Change. ³ The committee consists of seventeen officials from different ministries of the central government. ⁴ As such, the establishment of the committee is a laudable move and has been well-received in India.

Alongside its monitoring and reporting functions, the AIPA is expected to perform substantive functions, including, developing policies and programmes to make India's domestic climate actions compliant with its international obligations, ⁵ and provide recommendations to the central government on issues relating to climate change. ⁶ To effectively discharge these functions, it may invite experts for professional and technical advice. ⁷ Additionally, it may create groups of experts to carry out a detailed examination of climate change-related issues. ⁸

Given AIPA's potential to create and affect domestic climate policy, I argue here that indigenous peoples (IPs) should be included as a category of ‘expert’ consultants listed under clause 4(a) of the gazette notification. The argument is based on the understanding that, first, IPs share a special relationship with their ancestral land, and possess a deeper understanding of the ecosystem they live in. This allows them to practice a sustainable way of life, in harmony with Nature. ⁹ Therefore, their knowledge is key to sustainable ecosystem management. ¹⁰ Second, since land is key to their collective physical and spiritual identity, and their subsistence economies, IPs are disproportionately affected by environmental degradation. ¹¹ Indeed, the United Nations Environment Programme (UNEP) has recognized the importance of IPs’ participation at all levels of policy development, and implementation, for achieving sustainable development. ¹²

I begin with delineating IPs and indigenous knowledge, juxtaposing it against local and traditional knowledge. Subsequently, I rationalize my focus on IPs, as opposed to traditional communities, local communities and other vulnerable groups. Eventually, I problematize the narrow understanding of ‘experts’ reflected in the gazette notification, drawing upon the United Nations (UN) inclusion of IPs as experts in its organs and specialised agencies. In this context, I also reflect on the potential means of operationalizing the inclusion of IPs in AIPA.

Delineating IPs and indigenous knowledge

Several understandings exist regarding indigenous, traditional and local communities. Often used interchangeably, these communities and their concomitant knowledge systems are not synonymous, though they may be inextricably linked.

Albeit there is no official definition, IPs may be understood as, ‘distinct social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced’. ¹³ Emphasising their relationship with their ecosystem, the World Bank adds, ‘the land and natural resources on which they depend are inextricably linked to their identities, cultures, livelihoods, as well as their physical and spiritual well-being’. ¹⁴

Accordingly, IPs maintain distinct cultures, beliefs, knowledge systems, and social, economic and political systems. Identifying themselves as indigenous, they often form ‘non-dominant sectors’ of the society. Also known as aboriginal peoples, native peoples and first peoples, they are the original settlers of the land they occupy. ¹⁵ In India, they are known as Adivasis, ¹⁶ and constitute 8.6 percent of the country's population. ¹⁷

Indigenous knowledge, traditional knowledge and local knowledge, generally refer to the matured long-standing traditions and practices of certain regional, indigenous, or local communities. ¹⁸ As it flows from this definition, the main point of distinction between traditional knowledge, local knowledge and indigenous knowledge relates to the holders of the knowledge, rather than the knowledge per se. ¹⁹ Indigenous knowledge and traditional knowledge are held by particular groups or communities – while the former is held by indigenous communities, the latter is held by rural communities. Contrastingly, local knowledge is possessed by all communities, rural and urban, settled and nomadic, original inhabitants and migrants. ²⁰ Accordingly, one may conclude that local knowledge embraces a larger body of knowledge, including indigenous and traditional knowledge; ²¹ where a rural community qualifies as an indigenous community, its knowledge is indigenous knowledge. ²²

Including IPs in the AIPA

My argument centres on including IPs as ‘experts’ under clause 4(a) of the gazette notification. The rationale underlying my sole focus on IPs as opposed to traditional communities and other local communities, operates on two levels, first, IPs’ unique relationship with their ecosystems, and second, the pre-existing representation afforded to traditional communities and other local communities under the said provision of the gazette notification.

IPs foster a deeper understanding of their local ecosystems. This knowledge can, arguably, enable effective climate action and instil exemplary change. This can be seen, for example, in relation to the tree plantation project in Ambagad Chowki Forest Range. The teak plantation programme in the area is prima facie, a remarkable effort at fulfilling one of India's NDCs, ‘creating an additional carbon sink of 2.5-3 billion tonnes of CO₂ equivalent through additional forest and tree cover by 2030’. ²³ However, that said, IPs located in the region have voiced their concern that the teak tree plantation does not suit the local ecology as once these trees grow, the land will not support any other form of a plantation. ²⁴ Therefore, it is important that conservation strategies take into account the knowledge of indigenous communities.

At the same time, their subsistence economies, ²⁵ and their spiritual relationship with their local ecosystems, including their ancestral lands, are imminent to their collective physical and spiritual survival. ²⁶ They perceive the land as their ‘Mother’, and themselves as its protectors and custodians. ²⁷ This co-dependent relationship makes them disproportionately vulnerable to climate change, and environmental degradation.

Indeed, traditional and other local communities also consist of vulnerable populations, like women, farmers, fishing communities etc. However, the impact of climate change and environmental degradation is, arguably, more severe on IPs, in so far as it threatens their identity and survival. To illustrate, the construction of the Sardar Sarovar Dam in India adversely affected both the IPs, and the fishing communities located in the region. Loss of aquatic life due to dam, caused the fishing communities to seek alternate employment, often menial labour jobs. ²⁸ On the other hand, IPs had been residing on the land for over twelve generations. In addition to the land being the primary source for subsistence agriculture, it held their burial grounds, their sacred sites, and their medicinal plants. Due to the submergence of the land caused by the construction of the dam, IPs were relocated to other sites. On resettlement, their socio-cultural identity and uniqueness was transformed, and their social networks were disrupted, exacerbating their dismal situation. ²⁹ Therefore, arguably, unlike other vulnerable groups, adverse changes in the ecosystem does not only affect IPs’ economic survival, but also their collective physical and spiritual identity. Indeed, cognizant of this, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), obliges State Parties to obtain free, prior and informed consent of IPs, through IPs’ own representatives, before adopting or implementing any legislative or administrative decisions that may affect them. ³⁰

Second, traditional communities and other local communities, including the vulnerable sections of their population, may be adequately represented through non-governmental organizations (NGOs), which are an existing category of ‘experts’ listed in the gazette notification. However, NGOs may not be appropriate forums to enable the participation of IPs as their participation must be enabled through their own representatives. Cognizant of this actuality, the UN has enabled the participation of IPs in its agencies and organs through IPs’ own organizations, i.e., IPOs. As discussed in the next section, IPOs are structurally and functionally different from NGOs, and enable effective participation of IPs, in accordance with the abovementioned obligation under UNDRIP. Accordingly, currently, while other vulnerable communities have an opportunity to be represented in the AIPA through NGOs, IPs have not been afforded a similar opportunity.

Revisiting our understanding of ‘experts’

Albeit the gazette notification does not provide a clear definition of ‘experts’, it provides an illustrative list, including, ‘experts from the Government, financial institutions, universities, academic institutions, consultancy organisations, non-Governmental organisations, civil society, legal profession, industry and commerce’. ³¹ Evidently, it limits its understanding of ‘expert’ consultants to epistemic experts. ³² In our context, this narrow construction of ‘experts’ excludes the knowledge and expertise that IPs may bring through their own representatives. It limits the scope of their participation only to being potential stakeholders, who, as per clause 4(b) of the gazette notification, may be invited for ‘interaction’, as opposed to experts, who may be invited for ‘professional and technical advice’. Given the potential of IPs to enable sustainable ecosystem management, my argument is to effectuate their direct participation as ‘experts’, i.e., alongside epistemic experts, not through them.

Indeed, there is sufficient international practice supporting this. Notably, direct participation of IPs as ‘experts’ in the UN has been exemplary. In 2004, founding Chairperson & Special Rapporteur, UN Working Group on Indigenous Populations, Erica-Irene A. Daes, suggested recruitment of IPs into the UN Secretariat system, and ‘as experts at international technical meetings, and conferences particularly in the fields of environment and development’ [emphasis mine]. ³³ Different organs of the UN have devised mechanisms for enabling the same. For example, in 2008, the UN Permanent Forum on Indigenous Issues (UNPFII) was established. It is a high-level advisory body to the Economic and Social Council on indigenous issues related to economic and social development, culture, environment, education, health and human rights. Of its sixteen members, eight are appointed based on the selection processes undertaken by IPs themselves, in the seven indigenous-identified social and cultural regions of the world. ³⁴ All members serve as experts on indigenous issues, providing expert advice and recommendations on indigenous issues to the ECOSOC [emphasis mine]. ³⁵

Similarly, in the UNEP, IPs participate in the environmental policy processes through UNEP's Major Groups and Stakeholders branch. As one of the Major Groups, accredited IPOs participate alongside the UNEP in its meetings and plenary sessions. ³⁶ They provide their inputs into each newly developed Programme of Work. ³⁷ It is pertinent to highlight that IPOs are qualitatively and functionally different from NGOs, in purpose, design and constituency. ³⁸ These organizations represent indigenous individuals, families, extended families and collectives, who often share ancestry. Membership is hereditary and based on indigenous legal and customary norms. Unlike NGOs, their purpose may include governance of their people and/or territory. In some cases, their functioning may be provided by oral traditions rather than written expression. Their participation as a Major Group is crucial for policy expertise, and for adapting UNEP's global work to local realities and implementing it accordingly. ³⁹

Another notable initiative is the UN Expert Mechanism on Rights of IPs, an expert advisory body to the Human Rights Council. The Council makes a strong recommendation for the inclusion of experts of indigenous origin within the seven experts-members of the Mechanism. ⁴⁰ Additionally, the Mechanism's annual meetings are open to participation by indigenous organizations, irrespective of their accreditation status. ⁴¹ In 2012, taking cognizance of the actuality that IPs may not always be organized into organizations, and the difficulties of accreditation, the UN Secretary-General submitted a report on the means of promoting the participation of IPs’ representatives in the UN. ⁴² The report suggested that the process of accreditation be made easier, for example, by relaxing documentation requirements. Furthermore, it suggested facilitating meaningful and effective participation of IPs’ representatives by organizing training sessions and extending technical support to them through NGOs.

Therefore, the UN has opened its doors to IPs, their representatives and organizations, not as stakeholders, but as experts. Inter alia, provisions have been made for their appointment in advisory roles, and for their participation in environmental policy-making process. A system has been devised to enable their direct participation, reflecting a wider understanding of ‘experts’, moving beyond epistemic experts.

In lieu of a conclusion

Despite the enormity of the task, the UN has devised a system to enable the direct participation of IPs, alongside epistemic experts, not through them. Albeit a herculean task, a similar system could be devised for the participation of IPs’ representatives and organizations as experts in the AIPA.

While there are regional NGOs working for the rights of IPs, there exist only a few IPOs in India. ⁴³ However, at the 2011 census, India had 705 tribal groups, consisting of 104 million people. ⁴⁴ Therefore, a first step would be engaging with the self-elected representatives/heads of these communities. Fortunately, India's effective decentralized governance mechanisms extending up to its rural communities, i.e., the Panchayati Raj system, provide sufficient logistical support to undertake this task.

The participation of IPs in the AIPA will, it is argued, facilitate a more efficient and inclusive climate action, and help with mitigating climate change, thus reinforcing India's commitments under the Paris Agreement. ⁴⁵ Notably, it could diversify our understanding of ‘experts’ involved in different areas of environmental regulation and different levels of environmental governance. Accordingly, it reinforces our commitment to ‘building back better’ and creating a more sustainable, resilient and inclusive society going forward.