Access to water is a fundamental climate change issue. It is related to significant political, social, and ecological struggles that indigenous peoples face internationally and here in the United States, as recent protests at the Dakota Access Pipeline clearly illustrate. Yet, governments and courts have done little to address such climate change inequities. So argues Dr. Itzchak Kornfeld, the Giordano Research Fellow at the Faculty of Law of the Hebrew University of Jerusalem, in The Impact of Climate Change on American and Canadian Indigenous Peoples and Their Water Resources. Kornfeld’s article is featured in the March 2016 issue of ELR’s News & Analysis and is adapted from Chapter 10 in Climate Justice: Case Studies in Global and Regional Governance (ELI Press 2016), a book that offers in-depth analysis of climate justice issues broadly.
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Focusing on indigenous peoples in Canada and the United States who live on extra-rural reservations and in remote and climate-vulnerable locations, Kornfeld explains how climate change is impacting their natural resources and cultures. Numerous indigenous communities lack access to fresh and potable water and sanitation, and climate change will impact these peoples’ continued access to this resource. For example, the recent drought in California impacted the Bishop Paiute, California Valley Miwok, and the Fort Mojave Indians more than other Californians because these indigenous communities do not have the modern conveniences or resources that most other state residents enjoy.
Kornfeld examines case law and international law instruments that indigenous people could use in seeking to vindicate their rights, specifically the right to water, in light of climate change and the loss of their lands and way of life. These include the 1966 International Covenant on Economic, Social, and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the United Nations Convention on the Rights of the Child, the ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Inter-American Declaration of Human Rights.
Yet, Kornfeld strongly cautions that indigenous peoples face several challenges in seeking protection under these international law instruments. In the end, he believes efforts to use them will likely not be fruitful, especially in the near future. One significant hurdle is causation, i.e., the difficulty a litigant faces in proving that climate change impacted his or her access to water. Kornfeld thus offers proposals for policy reform, including decreasing fossil fuel consumption through government action, imposing responsibility on corporations to reduce their carbon footprint and impact on human rights, and utilizing environmental justice case law precedent.
Kornfeld doesn’t hold back on his view of the current inadequacy of our legal structures and the inequities they produce, urging action by the legal community:
For generations, Canada and the United States have ignored the human rights of [their] indigenous peoples. The law has withered in the face of these injustices. One would be foolish to believe that these nations will suddenly address such inequalities and wrongs in the face of climate change, particularly in the United States, where a large part of the populace and the government believes it is a hoax or a natural process that does not require regulation. Lawyers and advocates must therefore urge governments to address the universal human right to a healthy, clean, safe, and sustainable environment.
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