i ndigenous p eoples
4 Minamata Convention and the rights of indigenous peoples
The Minamata Convention contains two paragraphs in its preamble that recognize the particular impacts of mercury on indigenous peoples and vulnerable members of their communities:
Noting the particular vulnerabilities of Arctic ecosystems and Indigenous com-munities because of the biomagnification of mercury and contamination of tra-ditional foods and concerned about Indigenous communities more generally with respect to the effects of mercury.
Aware of the health concerns, especially in developing countries, resulting from exposure to mercury of vulnerable populations, especially women, children, and, through them, future generations.
Indeed, the contamination of water and food sources from releases of mercury to land and water is a critical concern for indigenous communities. It is of particular
43 Article 8(3).
44 Article 8(4).
45 Articles 9(3)-(4).
46 Article 10.
47 Article 11.
48 Article 12.
49 Selin, ‘Global Environmental Law’, supra note 3, at 16.
concern in relation to the consumption of traditional foods by children and expectant or nursing women, as studies have shown levels consistent with cognitive deficits.50 Inuit culture is very closely tied to the land, ice, flora, and fauna of the Arctic. The traditional Inuit diet predominantly includes meat and fat from a variety of hunted species, such as seals, whales, caribou, and fish.51 Marine mammals in particular contain high levels of mercury, and studies have shown that exposure to mercury in the womb is already having a significant impact on Inuit children.52
As a result of these profound health impacts, the Inuit Circumpolar Council (ICC)53 played a significant role in negotiations towards the Minamata Convention, both as part of the Canadian delegation (ICC Canada) and as an independent observer (mostly ICC Greenland).54 Indigenous peoples more broadly – including the ICC – also played a sizable role in the negotiations through the Global Indigenous Peoples’
Caucus.55 Their concerns were broadly captured in Article 16 of the Minamata Con-vention on health impacts, with some jurisdictions like Latin America mandating that health provisions be included in the negotiations and final agreement.56
The UN Declaration on the Rights of Indigenous Peoples contains several provisions that are relevant to the issue of mercury, its impacts on indigenous peoples, and the implementation of the Minamata Convention. Article 29 describes several interre-lated environmental human rights. First, it states that indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. Given the particular vulnerability of indigenous peoples to mercury due to their reliance on traditional foods, national implementation of the Minamata Convention must ensure that the needs of indig-enous peoples are taken into account, especially – but not exclusively – in relation to ASGM (Article 7), emissions (Article 8), and releases (Article 9). Second, Article 29 of UNDRIP proclaims that states shall take effective measures to ensure that no storage or disposal of hazardous materials takes place in the lands or territories of indigenous peoples without their free, prior and informed consent (FPIC). In implementing the Minamata Convention’s provisions on environmentally sound storage (Article 10) and mercury wastes (Article 11), this right to FPIC must be respected. Third, Article 29 of UNDRIP asserts that states shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and
50 Koutouki ‘Crimes against Future’ supra note 17, at 247.
51 The Inuit Way: A Guide to Inuit Culture (Pauktuutit Inuit Women of Canada, 2006) at 42.
52 Lindsey Konkel ‘How Brain-Damaging Mercury Puts Arctic Kids at Risk’, National Geographic, on-line (27 March 2015), available at <http://news.nationalgeographic.com/2015/03/150327-inuit-mercu-ry-beluga-iq-canada-nunavik-arctic-faroe-islands/> (visited 4 April 2019).
53 See <https://www.inuitcircumpolar.com/>.
54 Timo Koivurova, Paula Kankaanpaa and Adam Stepien, ‘Innovative Environmental Protection: Lessons from the Arctic’, 27 Journal of Environmental Law (2015) 285-311 at 299.
55 Ibid. at 300.
56 Eriksen and Perrez, ‘The Minamata Convention’, supra note 22, at 209.
its Implications for Indigenous Peoples
restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such hazardous materials, are duly implemented. Implementa-tion of the Minamata ConvenImplementa-tion’s provisions on contaminated sites (Article 12) and health aspects (Article 16) must therefore include actions to address the needs of indigenous peoples.
A further relevant provision pertains to traditional medicines, as mercury is also contaminating these important cultural and medical resources through atmospheric deposition and other means. UNDRIP Article 24 states that: ‘Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals.
Indigenous individuals also have the right to access, without any discrimination, to all social and health services.’ Environmental degradation, such as that caused by mercury pollution, can lead to the loss or diminution of traditional medicinal plants and the community’s spiritual and cultural life associated with the administration of traditional medicine.57 Pollution is also leading to the loss of traditional knowledge associated with these medicinal plants, animals and minerals,58 further violating Ar-ticle 31 of UNDRIP. In addition, UNDRIP ArAr-ticle 24(2) states that ‘Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.’ Given the heavy health burden placed on indigenous peoples by mercury pollution, it is critical that states ensure that this right to the highest attainable standard of health is achieved. Effec-tive implementation of the Minamata Convention will be important in this regard, particularly Article 16 on health aspects.
5 Conclusion
Given the significant impacts of mercury pollution on indigenous peoples and their ways of life, the adoption and entry into force of the Minamata Convention is an important step forward in addressing the harm caused by this widespread pollutant.
Indigenous peoples played an important role in the negotiations of the Convention through the Global Indigenous Peoples’ Caucus and Inuit Circumpolar Council,59 resulting in explicit recognition of their particular vulnerabilities in its preamble. In order to ensure that national implementation of the Minamata Convention has the best possible outcomes for indigenous peoples, alignment with the human rights of indigenous peoples expressed in the UNDRIP must be prioritized.
57 Koutouki, ‘Crimes against Future’, supra note 17, at 248.
58 Ibid. at 260.
59 Koivurova, Kankaanpaa and Stepien, ‘Innovative Environmental Protection’, supra note 54, at 300.