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Environmental Damage in International and Comparative LawProblems of Definition and Valuation$

Michael Bowman and Alan Boyle

Print publication date: 2002

Print ISBN-13: 9780199255733

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780199255733.001.0001

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Indigenous Peoples' Subsistence Lifestyle as an Environmental Valuation Problem

Indigenous Peoples' Subsistence Lifestyle as an Environmental Valuation Problem

Chapter:
(p.85) 6 Indigenous Peoples' Subsistence Lifestyle as an Environmental Valuation Problem
Source:
Environmental Damage in International and Comparative Law
Author(s):

Günther Handl

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199255733.003.0006

Abstract and Keywords

This chapter considers the extent to which the impact of development activities upon subsistence lifestyles can be considered as an environmental valuation problem. It argues that the twin objectives of respecting the cultural identity of indigenous communities and conserving the natural environment require the ‘internalization’ of the costs of development as reflected in the impact of environmental degradation upon the lifestyles of indigenous populations. In the absence of directly relevant international practice, the experience of domestic courts assumes considerable significance.

Keywords:   subsistence lifestyle, indigenous communities, environmental valuation problem, indigenous peoples, domestic courts

I. Introduction

In a recent case arising out of the Exxon Valdez oil spill, Alaska Native Class v. Exxon Corporation, the United States Court of Appeals for the Ninth Circuit affirmed a US District Court's holding that Alaska natives had failed to prove a recognizable ‘special injury’ to communal life warranting recovery of non-economic damages.1 The basic issue before the Court was whether cultural damage, in the form of impairment of plaintiffs’ ‘subsistence way of life’, could constitute compensable injury.2 In the key section of its holding, the Court did acknowledge that Alaska natives might have been more severely affected by the oil spill than members of the general public. It went on to observe, however, that ‘[t]he right to obtain and share wild food, enjoy uncontammated nature, and cultivate traditional, cultural, spiritual and psychological benefits in pristine natural surroundings is shared by all Alaskans’.3 Thus, by concluding that the plaintiffs had failed to state an injury different in kind, rather than in degree (a requirement under Alaskan law for private plaintiffs being allowed to bring a public nuisance action) the Court held that the alleged diminution of Alaska natives’ subsistence lifestyle was not compensable at law.

This rejection of impairment of ‘subsistence lifestyle’ or ‘cultural injury’ as the basis for damages4 is disappointing. The Court could have struck a blow for the cause of both human rights and environmental protection, either by carving out a novel exception to the ‘special injury rule’ or by simply recognizing that Alaska natives’ injuries were indeed qualitatively different from those sustained (p.86) by the general public. Other jurisdictions have recognized cultural damage claims of indigenous peoples as representing a special category of damages even though the damage also implicated the cultural rights and interests of the public at large.5 By refusing to do so, the Court failed to lend its support to a valuation of natural resources that is arguably more in line with the paradigm of sustainable development.6 After all, non-internalization of ‘cultural damage costs’ implies an under-valuation, and hence often leads to the degradation of the environmental resources concerned.7 Moreover, the decision runs counter to a clear trend in both domestic and international law towards protecting the ‘cultural’ identity of traditional indigenous communities8 by protecting subsistence uses of natural resources.9

This Chapter seeks to outline the international normative context in which compensation, and the valuation of subsistence lifestyle damage, must be recognized as being located. When viewed against these parameters of international public policy and law, the Ninth Circuit Court's decision will clearly be found wanting.10 This will be true even though allowance is being made for (p.87) the domestic constitutional problematique of equal access to natural resources versus differential treatment of native plaintiffs,11 the complexity of valuing environmental harm in general,12 and the inherent difficulties of putting a monetary value on subsistence lifestyle damage claims in particular.13

II. Valuing the Diminution of Subsistence Lifestyle from a Policy Perspective

It should be self-evident that a valuation of natural resources that specifically allows for the inclusion of non-economic injury does not, in and of itself, ensure the adoption and execution, of appropriate environmental (or human rights) policies. By the same token, however, if subsistence lifestyle values that are environment-dependent are not taken into account, it is most likely that, in the long run, natural resource decisions will lead to inefficient outcomes. Consider, for example, deforestation and forest damage, which by general agreement exemplify the problem of economic activities whose environmental and social costs are not fully reflected in the price of forest-related goods and services.’14 Virtually every authoritative international forum, including both the Intergovernmental Panel on Forests15 and the Intergovernmental Forum on Forests (IFF),16 has concluded that under-valuation of forest products and services represents a significant contributing cause of deforestation and forest decline. In explaining the specific reasons for such under-valuation, experts have consistently pointed to the ‘inadequate recognition of the rights and needs of forest-dependent indigenous and local communities within national laws and jurisdiction’17 and ‘a lack of understanding of the holistic worldviews and ways of life of Indigenous Peoples (p.88) and other forest dependent peoples…’18 The IFF observes that forests, particularly in developing countries, ‘provide a variety of goods and services, including the basis for subsistence livelihood’.19 They are the homes of many indigenous and other forest-dependent peoples and ‘are fundamental to their survival as distinct peoples, forming the basis for their livelihoods, cultures and spirituality’.20 It is therefore not surprising that the IFF should recommend that valuation, be extended to ‘reflect the social, cultural, economic and ecological context and consider values that are important to local and/or indigenous communities…’21

In short, an assessment of forest damage would be seriously deficient if it included economic loss from a decline of the forest's function, say as providing food, fuel and shelter, habitat for biodiversity, watershed or sink for greenhouse gases, but excluded non-economic damage related to the impairment of indigenous peoples’ forest-based subsistence lifestyle and cultural identity. What is true specifically of the protection and proper management of forests applies also mutatis mutandis to wise husbandry and responsible stewardship of natural resources generally. These objectives can be realized only if decisions on natural resource use are based on a comprehensive valuation of environmental damage. Thus, whenever traditional indigenous peoples or communities are involved in, or affected by, environmental management decisions, the decision-making process must be informed by the special relationship that tends to exist between these groups and their physical environment.

Valuing harm to the subsistence lifestyle of traditional indigenous peoples and communities must be viewed also from a human rights perspective, namely as an essential element in any national or international strategy to ensure the long-term survival of these communities in their culturally distinct form. Erica-Irene Daes, the UN Commission on Human Rights’ Special Rapporteur on Human Rights of Indigenous Peoples, describes ‘[t]he relationship with the land and all living things…[as being] at the core of indigenous societies’.22 It is a (p.89) relationship that is captured in the adage: ‘the land does not belong to us; we belong to the land’. The key to appreciating this relationship fully is thus to understand indigenous peoples’ holistic cosmology. Consider, for example, Aboriginal culture in Australia which is based on the concept of ‘dreaming’, a system of beliefs about earth's creation, in which ancestral worship, tribal membership, and religious and cultural tenets are all tied to particular landscapes. These landscapes in turn are interconnected in a series of ‘dreaming tracks’, the ‘songlines’, that criss-cross the Australian continent.23 In a similar vein, when discussing Maori fishing rights,24 the New Zealand District Court in Wanganui, in Taranaki Fish and Game Council v.McRitchie,25 observed that:

[t]he fisheries’ taonga [natural resources] includes connections between die individual and the tribe, and fish and fishing grounds in the sense not just of tenure or ‘belonging’ but also of a personal or tribal identify, blood genealogy, and of spirit. This means that a ‘hurt’ to the environment or to the fisheries may be felt personally by a Maori person or tribe, and may hurt not only the physical being, but also prestige, the emotions and the mana.26

Given the close functional interrelationship between preservation and protection of the environment and indigenous peoples’ cultural integrity,27 comprehensive (p.90) environmental valuation is also a fundamental human rights imperative,28 In sum, two compelling public policy reasons militate in favour of including non-economic cultural impairment in natural resource valuation: the need to strive towards maximizing long-term efficiency in natural resource allocation, and society's interest (as an expression of both a selfish and an altruistic goal) in cultural diversity generally, and the protection of indigenous peoples’ traditional lifestyles, their existence as culturally distinct groups in particular.29

This postulation of cultural damage valuation as a matter of international public policy is, however, subject to two caveats. First, the interrelationship between tribal identity, cultural tradition, and environmental integrity may not always be as strong or as straightforward as, for example, it appears to be in the Maori conception of life and life's forces.30 Therefore, a valuation approach that is sensitive to indigenous peoples’ traditional lifestyles can be a two-edged sword insofar as environmental protection objectives are concerned. When we emphasize the need to protect an indigenous community's traditional access to and use of natural resources as a defining aspect of its spiritual and cultural identity, we do not necessarily also promote the preservation or conservation of the resources concerned. Consider, for example, the resumption of ceremonial whaling by the Makah Indians in Washington State, which illustrates how cultural uses of natural resources can be at odds with conservation efforts. The Makah themselves describe the renewed hunt for grey whales in ‘mystical terms, citing a powerful reconnection with the whaling practice that had helped define their culture and that was the source of numerous legends, songs, traditions and tribal ceremonies’.31 Given such sentiments it would be difficult to dismiss the relevance of subsistence whaling to traditional cultural tribal identity.32 In (p.91) consequence, if preservation of tribal cultural identity is a legitimate public policy objective, a conflict with equally legitimate environmental objectives may sometimes be well nigh unavoidable.33 Moreover, as recent developments seem to confirm, any exemption, however worthy or narrow, from a general ban on the harvesting of endangered whales tends to undermine existing international legal restrictions on commercial whaling.34

Subsistence whaling by tribal communities is a fairly dramatic example of the potential clash between traditional cultural practices and environmental protection concerns,35 and as such it needs to be kept in perspective: the risk of such conflicts can easily be exaggerated. In reality, conflicts of this kind tend to be the exception rather than the rule. The prototypical situation will be one in which indigenous peoples’ cultural interests dovetail with those of environmentalists.36 Therefore, while it would admittedly be naïve not to recognize that the ‘savage’ might sometimes be less than noble,37 it would be equally wrong not to appreciate that, in general, the functional interdependence of cultural and environmental integrity is a hallmark of traditional indigenous peoples’ and local communities’ lifestyles.

The second caveat relates to the postulated preservation of traditional indigenous culture. A policy endorsement of this kind does not, of course, imply a policy pieference also for locking in or ‘freezing in time’ the traditional lifestyle or the developmental status quo of the communities concerned. Cultural traditions are not immutable: they evolve. Moreover, the very policy decision to support their preservation may have to be balanced against other (p.92) legitimate public policy objectives.38 Therefore, rather than preserving the cultural identity of a group at all costs, the policy advocated here simply aims to ensure that indigenous peoples are in a position to decide for themselves whether, and when, at what rate, and in respect to which aspects of their traditional lifestyle, they will accept change. Or, when change is unavoidably forced upon the communities concerned, to ensure that the full range of its impact, including in particular the cultural consequences, is properly taken into account in a decision-making process in which members of these communities can fully participate.39

III. International Legal Recognition of Indigenous Peoples’ Rights to Cultural Integrity

1. Instruments whose principal objective is the protection of human rights

The notion that protection of indigenous peoples’ cultural identity is closely related to preservation of their physical environment is deeply embedded in the normative structure of human rights instruments in general and of existing or emerging international legal documents on indigenous peoples in particular. For example, Article 27 of the International Covenant of Civil and Political Rights (ICCPR) provides: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’.

In a general comment on the import of Article 27, the UN Human Rights Committee specifically emphasizes that ‘[C]ulture manifests itself in many forms, including in a particular way of life associated with the use of land and resources, especially in the case of indigenous peoples’.40 Earlier on, in reporting (p.93) on the communication by the Lubieon Lake Band, the Committee had agreed that the Canadian federal and provincial governments’ permission for oil, gas, and timber development of Cree lands impermissibly interfered with the tribe's traditional lifestyle. It noted that the ‘developments threaten [ed] the way of life and culture of the Lubieon Lake Band, and constitute[d] a violation of Article 27 so long as they continue[d]’.41 Similarly, in its report on the complaint regarding the Yanomami Indians of Brazil42 and the situation of the Miskito Indians of Nicaragua,43 the Inter-American Commission on Human Rights (IACHR) noted that Article 27 recognizes the right of ethnic groups to special legal protection in relation to all those characteristics necessary for the preservation of their cultural identity.44 Finally, the jurisprudence of the organs of the European Convention on Human Rights signals acceptance in principle of the argument that impairment of the traditional lifestyle of indigenous communities might be recognizable as a violation of the European Convention.45

Among international human rights instruments that specifically address the rights of indigenous peoples, ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries is of primary interest here, as much of its normative content may now have come to reflect customary international law.46 In one of its key provisions, the Convention stipulates that ‘the social, cultural, religious and spiritual values and practices of these peoples shall (p.94) be recognized and protected’.47 The Convention also commits national governments ‘to assess the social, spiritual, cultural and environmental impact…of planned development activities’ and to use the results of these studies as ‘fundamental criteria for the implementation of these activities’.48 Article 13 calls upon governments to respect ‘the special importance for the cultures and spiritual values of the peoples…of their relationship with the lands which they occupy, or otherwise use’. Finally, Article 15 provides that ‘the right of the [indigenous] peoples…to the natural resources pertaining to their lands shall be specially safeguarded’. Significantly, the term ‘lands’ in this article includes the concept of ‘territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use’.49

Similarly strong and unequivocal support for the right of indigenous peoples to the protection of their natural environment and the subsistence use of natural resources that is intrinsic to their cultural identity emerges also from a number of draft legal instruments and resolutions of international human rights conferences. Thus Part VI of the UN Draft Declaration on the Rights of Indigenous Peoples50 acknowledges indigenous peoples’ distinctive spiritual and material relationship to lands and waters which they have traditionally owned, used, or occupied as a basis for a special entitlement. An almost identical formulation can be found in Article XVIII of the proposed American Declaration on the Rights of Indigenous Peoples.51 Specifically, the American Declaration emphasizes the ‘respect for the environment accorded by the cultures of indigenous peoples of the Americas’, and refers to the ‘special relationship between the indigenous peoples and the environment, lands, resources and territories on which they live and their natural resources’.52 Article II, paragraph 2 of the proposed Declaration goes on to say that states recognize ‘the right of indigenous peoples to…their cultures, [and] to profess and to practice their spiritual belief’.53 Article VII, which specifically addresses the right to cultural integrity, also stipulates that ‘[t]he states shall recognize and respect indigenous ways of life, customs, traditions…practices, beliefs and values’.54 By the same token, the Vienna Declaration and Programme of Action, the final documents of the 1993 World Conference on Human Rights,55 ‘strongly reaffirm the commitment of the international community to…[indigenous peoples’] economic, social and cultural well-being and their enjoyment of the fruits of sustainable development’.

In sum, there can be little room for doubt that there exists today a general consensus among states that the cultural identity of traditional indigenous peoples (p.95) and local communities warrants affirmative protective measures by states,56 and that such measures be extended to all those elements of the natural environment whose preservation or protection is essential for the groups’ survival as culturally distinct peoples and communities.57

2. Instruments whose principal objective is environmental protection

Recognition of the link between the preservation of cultural and of environmental integrity also informs key provisions of several international environmental law instruments. In other words, both human rights and environmental legal or policy instruments endorse the preservation and protection of cultural practices and customary usage of natural resources as being critical to achieving their respective objectives. In the case of human rights documents, protection of indigenous peoples’ and communities’ cultural identity is the principal end, and preservation of the environmental resources concerned is the means. Conversely, the primary objective of a ‘typical’ environmental instrument will be to protect environmental resources, whereas protection of indigenous peoples’ subsistence lifestyles tends to be a mere means to this end.

This instrumentalist call for respect for, and protection of, traditional indigenous lifestyles is a basic theme in many of the instruments adopted at the 1992 Rio Conference on Environment and Development. For example, Principle 22 of the Rio Declaration acknowledges that as ‘indigenous people and their communities…have a vital role to play in environmental management and development because of their knowledge and traditional practices[,] States should duly recognize and duly support their identity, culture and interests’. Chapter 26 of Agenda 21 calls upon governments to recognize indigenous peoples’ ‘values, traditional knowledge and resource management practices with a view to promoting environmentally sound and sustainable development’.58 The (p.96) Biodiversity Convention provides a particularly good illustration of the instrumentalist approach.59 Article 8, paragraph (j) of the Convention calls upon each Contracting Party ‘as far as possible, and as appropriate’ as well as ‘subject to its national legislation’, to ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity’. At the same time. Article 10, paragraph (c) of the Convention links cultural to environmental protection objectives, but subordinates the former to the latter by requiring Contracting Parties to ‘protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable development’.60

Since the Rio Conference, various international conferences or diplomatic meetings have adopted resolutions or declarations that evince a similar approach. Examples include the Nuuk Declaration on Environment and Development in the Arctic,61 the Declaration of Santa Camz, de la Sierra adopted at the 1996 Summit of the Americas,62 as well as, most recently, the Malmö Ministerial Declaration.63 Mention must be made here also of multilateral development banks’ operational policies on indigenous peoples specifically, or policies that bear upon them incidentally, such as on forestry development. These policy documents invariably emphasize the need for bank-financed development projects to respect fully indigenous peoples’ ‘dignity, human rights, and cultural uniqueness’.64 In this sense, multilateral development banks’ operational policies (p.97) by and large reflect both environmental-instrumentalist support for indigenous peoples’ cultural traditions as well as a strong human rights orientation.65

What emerges from these various legal instruments,66 be they formally binding or in the nature of ‘soft law’ documents, is a clear international consensus that today indigenous peoples and their communities are the beneficiaries of a number of international environmental legal stipulations. These provide inter alia for the right to participate in decision-making on natural resources that directly affects or bears on indigenous peoples’ interests; the right to have land tenure and ownership issues clarified; the right to share in benefits from the utilization of indigenous peoples’ knowledge about nature and natural resources; and priority access to and subsistence harvesting of natural resources.67 The common conceptual underpinning of these specific entitlements is recognition of the inherent value to society of cultural diversity and a corresponding acknowledgement that indigenous peoples have the collective and individual right to maintain and develop their distinct cultural identity.68

While recognition and protection of indigenous peoples’ traditional practices and subsistence forms of lifestyles thus appears to be an undeniable facet of today's international public order, the question of whether, and if so to what extent, an impairment of the protected subsistence lifestyle of indigenous peoples due to environmental degradation would be compensable at law remains to be answered. The central underlying issue of how a diminution of this right would be amenable to valuation, assuming the answer to the first question is affirmative, will have to be examined thereafter.

(p.98) IV. The Compensability of the Effects of Environmental Degradation on Subsistence Lifestyles

While in some countries compensation for loss of cultural value has been the subject of often vigorous debate, albeit primarily carried on in domestic legal terms,69 the issue has received much less attention at the international legal level. For example, there has been disappointingly little, if any, discussion of the topic in the relevant literature.70 Nevertheless, international practice as reflected in the few existing legal instruments that focus on indigenous peoples’ rights reveals a basic recognition of the problem and, encouragingly, provides some indication of the direction in which international community expectations are evolving.

ILO Convention No. 169, the only pertinent multilateral instrument presently either in force as a treaty or adopted as a formally non-binding exposition of an existing international consensus on the matter, provides some guidance on the present issue. The Convention addresses compensation in relation to mineral resource developments on, and removal of indigenous peoples from, their lands71 without expressly referring to the compensability of cultural or spiritual damage. However, the provision on mineral resource developments stipulates that indigenous peoples ‘shall receive fair compensation for any damages which they may sustain’,72 whereas the term used in connection with loss or injury as a result of relocation is ‘full compensation’.73 The underlying notion of ‘lands’ in these two Articles specifically includes ‘the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use’.74 Therefore, ‘compensation for any damages’ might well be interpreted as including cultural damages. Conceivably, the same might be true of the standard of ‘full compensation’.

A clearer picture emerges from the two draft declarations on the rights of indigenous peoples. Article 27 of the UN Draft Declaration is of particular interest (p.99) here. It emphasizes a right of restitution in the event of confiscation, occupation, use, or damage of lands, territories, and resources that indigenous peoples have ‘traditionally owned or otherwise occupied or used’. When such redress, i.e. restitution, is not possible, indigenous peoples are said to ‘have the right to just and fair compensation’.75 The concept of ‘just and fair compensation’ is also the standard applicable to any loss associated with the resettlement of indigenous peoples,76 as well as to the loss or deprivation ‘of…[indigenous peoples’] own means of subsistence and development’.77 Most importantly, Article 30 of the UN Draft Declaration requires that ‘just and fair compensation’ be paid in the event that development activities affect their lands, territories, or other resources, in order to mitigate any ‘adverse environmental, economic, social, cultural or spiritual impact’.78 The proposed American Declaration is somewhat less specific. As regards the standard of compensation applicable to situations in which restitution is not possible, it merely calls for compensation ‘on a basis not less favorable than the standard of international law’.79 Under the heading of ‘right to development’ the Declaration calls for application of the same formula to compensate indigenous peoples for any loss from development activities and to mitigate any ‘adverse environmental, economic, social, cultural or spiritual impact’.80

As regards the practice of multilateral development banks, the Asian Development Bank's policy on indigenous peoples notes that the ‘ADB's strategies and approaches are designed to avoid negatively affecting indigenous peoples in its operations, and to provide adequate and appropriate compensation when a negative impact is unavoidable’.81By contrast, the World Bank's policy on indigenous peoples does not directly address the issue of compensation but instead speaks of the need for ‘adequate mitigation’ in the event of unavoidable adverse impact from development activities.82 However, the Bank is presently in the process of revising its policy and under a new proposed standard the Bank would not, for example, ‘support the commercial exploitation of the natural, mineral, hydro-carbon and/or cultural resources contained in the areas traditionally used or occupied by indigenous peoples unless they participate in the benefits of such activities and receive fair compensation for any barm or damage that might result from such activities’.83

In conclusion, existing normative instruments do suggest a trend towards specific recognition in international law of the compensability of cultural damage (p.100) claims associated with environmental degradation broadly defined. It must be admitted, however, that this evidence does not of itself settle the issue beyond reasonable doubt. ILO Convention No. 169, to which at present a mere fourteen states are parties,84 can be interpreted as supporting the notion of compensation. The UN Draft Declaration unambiguously calls for compensation. So do the banks’ existing or evolving operational policies on indigenous peoples which recognize the need for ‘fair compensation’ for harm from development activities and as such clearly represent evidence of ‘international practice’ relevant to assessing the state of general international law on the matter.85 On the other hand, both the UN Draft Declaration and the proposed American Declaration, which offers only a generic reference to the applicable international legal standard, have yet to be adopted, and in any event would, formally speaking, represent legally non-binding instruments.

Having acknowledged this relative weakness in the chain of evidence, one should nevertheless remember that the notion that cultural diversity in general, and traditional cultural practices and beliefs of indigenous peoples in particular, are worthy of protection is an avowed tenet of international public law and policy.86 Moreover, if and when traditional lifestyle impairment is the result of an internationally wrongful act of a state,87 compensation for such harm would already appear to be due under the Chorzów Factory formula.88 The environment-sensitive right to cultural identity thus cannot be assumed to be a (p.101) ius nudum, a right without a remedy. On the contrary! If the internationally guaranteed right to cultural identity is to he taken seriously, impairment of the subsistence lifestyle intrinsic to indigenous culture would necessarily call for ‘compensation’. Of course, ‘the life of law has not been logic, it has been experience’.89 And, admittedly, any deductive postulation of norms of international law—-from accepted principles of general applicability to rules specific in content yet uncorroborated in the practice of states—would rightly be frowned upon.90 However, taken together, the relevant international legal instruments, whatever their individual normative shortcomings may be, undeniably point towards the compensability of subsistence lifestyle impairment. Given this convergence of logic and incipient international piactice, it does not appear impermissible to conclude that a claim for damages would lie for such impairment as a matter of present-day international law.

V. Valuing Traditional Lifestyle Impairment

Before examining the specifics of valuing lifestyle impairment, it should be noted that from an international law viewpoint most issues of interest here present problems of first impression.91 To stake out the parameters of this international legal position is, however, an important undertaking in the present context, as the liquidation of compensation claims arising under international law must be deemed to be governed by international legal standards rather than by the laws of the respective national state.92 Given the dearth of relevant international precedents or guidelines, much of the following discussion hence draws necessarily on domestic legal cases and policy arguments. The resulting findings therefore do not, of course, purport to reflect directly applicable law, but rather indicate how the existing international entitlement to compensation for subsistence lifestyle impairment could and should be given effect.

(p.102) Having concluded that cultural impairment claims are compensable under international law, it might be useful first to reconsider the ‘why’ of valuation before approaching the ‘how’, or the method by which to assess the cultural value of the affected natural resource. ‘Compensability’ of traditional lifestyle impairment is, of course, a shorthand reference to the need to value such diminution as part and parcel of a comprehensive analysis of the costs and benefits of development activities or projects. Thus, a comprehensive environmental and social impact assessment that would bring into the equation cultural beliefs and preferences of indigenous peoples is, as intimated at the outset,93 a fundamental prerequisite for any proposed economic development to be sustainable. In other words, the valuation, or the attempt to ‘monetize’ cultural impairment, while imperfect in many ways, represents an indispensable technical step in the search for a proper balance between competing societal interests.94 Conversely, in cases of unplanned or accidental impairment of indigenous peoples’ subsistence lifestyle—whether of a temporary or permanent nature—such as in the wake of accidental pollution, valuation has a similarly important guidance function. For example, consideration of cultural damage costs may tip the balance towards restoration of the affected environment whenever the costs of returning to the status quo ante would otherwise be legally deemed prohibitive, because ‘unreasonable’ or ‘grossly disproportionate’.95 On the other hand, even if restoration is infeasible or from an indigenous cultural perspective intrinsically meaningless, ‘compensation’—whether in the form of monetary damages or alternative remedies96—might still fulfil an important symbolic function. For, however incomplete or unsatisfactory such compensation might be from an indigenous people's cultural integrity viewpoint, it would represent an act of reaffirmation on the part of society at large of the importance of cultural diversity and a societal commitment to protecting the cultural integrity of its indigenous peoples.

While in most situations the valuation of cultural damage would clearly be recognizable as an indispensable step towards effecting compensation of such damage, there are admittedly some circumstances in which the need for a valuation might be less obvious. For example, in relation to cultural impairment (p.103) associated with loss or diminution of title to native lands in Australia and New Zealand, the question has been posed whether compensation ought to take a form other than an award of money. Thus, in The Lereki Magafaoa of Fifineboua, Folikimua and Ikimau of Nine v. The Cabinet Ministers of the Government of Niue,97 a case before the Court of Appeal of Niue, the Court took note of the ‘developing view that the form of compensation should be changed to permit indigenous people to retain title to their land [sic] but yet yield it for public purpose by way of lease, licence, easement etc.’.98 The Court, however, went on to emphasize that it was required to assess a monetary sum since the question of whether ‘proper compensation’ could be interpreted to imply ‘alternative forms of acquisition other than acquisition of the freehold’ was ‘a policy decision which would need to be legislated’.99 Similarly, in the debates over what constitute ‘just terms’ of compensation under Australia's Native Title Act (NTA),100 it has been emphatically stated that instead of monetary damages, compensation ought to take the form of agreements to ensure continued aboriginal access to or cultural use of the land concerned.101

Undoubtedly, one of the key purposes of ‘compensation’ is to hold the injured party harmless. ‘Just and fair compensation’102 therefore might indeed imply a remedy that first and foremost minimizes the cultural value deprivation by enabling indigenous peoples to maintain their culture through, for example, continued access to and use of the land or natural resource concerned.103 Still, in this case, the ascription of a monetary value to the land or resource in issue is clearly more than merely marginally relevant. For, although the remedy ultimately granted might be in the nature of a non-monetary award, the very process by which the decision on such a remedy is reached is likely to involve a (p.104) balancing of competing value objectives, and hence by necessity also a valuation of the cultural damage concerned. In sum, whatever form ‘compensation’ of traditional lifestyle impairment ultimately takes, putting a monetary value on the injury inflicted is likely to be an inevitable aspect of any just and fair settlement of such damage claims.

As regards the ‘how’ of valuation, the experience of decision-makers, particularly in Australia and New Zealand, documents forcefully the conceptual difficulties involved in monetizing cultural impairment. The problem, of course, lies in the absence of a market for the cultural value of the affected land or natural resource. Unfortunately, non-market valuation techniques, such as the travel cost, random utility, or hedomic pricing methods, are intrinsically urisuited to valuing cultural damage.104 The contingent valuation (CV) method, which involves setting up a hypothetical market and the direct polling of individuals as to their willingness-to-pay for the protection/conservation of the natural resource concerned, is equally problematic,105 at least to the extent that CV is used as an exclusive tool to determine the amount of compensation. For CV is premised on the assumption that considerations which inspire one's view of a given resource value are reasonably sharable by other members of the general public, the audience to be polled. However, this assumption is plainly unwarranted, given the very special, highly idiosyncratic cultural or spiritual value that the indigenous community is likely to ascribe to the natural resource involved. For the same reason, a willingness-to-accept-compensation (WTAC) approach, would be similarly useless in producing any meaningful valuation figures. For, whether or not the interviewees, i.e. the members of the indigenous community, could be expected to ‘overstate’ the value of the resource concerned,106 there would be no reliable ‘reference value’ reflecting the views of members of the general public, against which the WTAC-based value could be assessed and, if necessary, adjusted. Of course, it can be argued that these valuation difficulties might be overcome by using CV to poll members of the general public about the cultural value of the affected natural resource, not directly, but indirectly, i.e. about the value of preserving the cultural identity of the indigenous community affected. However, given the complexity of such an undertaking, (p.105) quite apart from intrinsic problems of bias,107 such an approach would be extremely controversial, and would justifiably give rise to serious doubts about the reliability of its findings.

Given the shortcomings of these valuation techniques, it is not surprising that the valuation practice in Australia and New Zealand tends to confirm the unsuitability of traditional economic valuation approaches to cultural damage assessment. Instead of relying on any particular economic valuation technique, decision-makers have opted for an individual case-by-case approach, a practice that does not point towards the emergence of a single theoretical valuation model for cultural damage claims.’108

Specifically, this practice reveals a growing consensus as to the inappropri-ateness of viewing cultural damage claims through the prism of modern property laws, without making express allowance for the special social, cultural, and spiritual values at stake. Thus, in his 1994 report on the operation of the Native Title Act (NTA), the Aboriginal and Torres Strait Islander Social Justice Commissioner, speaking of compensation for loss or impairment of native title under the NTA, noted that ‘it would be a mistake to place undue emphasis on western concepts of land values as determined by economic factors. Such reliance is unlikely to be sufficient to deal with the spiritual attachment to land that indigenous peoples have.’109 In line with this position, some commentators have called for a ‘scheme for compensation [that] provides for a significant component over and above the market value of the land reflecting the intangible aspects of native title, such as its spiritual significance, and specifies how the component is to be calculated’.110

Courts, in assessing the ‘cultural value’ of native title lands, have tended to heed these calls by adding a cultural value premium to the market value of the resource concerned. For example, in The Leveki Magafaoa of Fifinehoua, Folikimua and Ikimau of Niue,111 the Court of Appeal rejected the appellants’ (p.106) argument that the lower court had ‘failed to take into account non-economic cultural and spiritual values which should have been valued[,| though foreign to Western compensation concepts’.112 First, it agreed with appellants that ‘customary values and customary rights of indigenous people are interests of a nature different [sic] to [W]estern concepts but must be recognised and compensated upon extinguishment’.113 After carefully reviewing the lower court's decision and the process by which the amount of compensation had been determined, the Court then concluded that compensation was proper and fair. T he lower court, it noted, had indeed been aware of and appreciated the special cultural value that attached to the land and, presumably in response thereto, had allowed an additional 40 per cent above the independent valuer's assessment of the land's market value.114 Conversely, in the Aurora Gold case115 the Australian National Native Title Tribunal rejected the argument of the State of Western Australia that the quantum of compensation payable to native title holders could not exceed the compulsory acquisition value of the relevant land, and that the land's special cultural and spiritual value to the aboriginal community was ‘wholly irrelevant to the question of assessment of damages’.116 In construing the relevant section of the Mining Act, the Tribunal found that far from excluding consideration of special or unique aspects of native title holders’ links to the land, ‘all loss or damage’ compensable under the Act included damage peculiar to native title holders, such as loss of surface land for ceremonial or sustenance purposes.117 It went on to say:

It does not inevitably follow…that the maximum amount of compensation payable must be the fee simple of the land. Furthermore, in our opinion, the determination of compensation for loss and damage by reference to the market value of land does not involve comparing like with like…Nor, as a matter of clear construction of the Act, are any special or unique aspects of the links which native title holders to an area of land irrelevant to the assessment of compensation. Rather, for the reasons given above, such considerations may be relevant. The amount ot compensation may, in some situations, amount to more than the monetary value which the land might be assessed to have at the date of compulsory acquisition by the State.118

As regards the method of establishing the cultural value component of compensation, courts seem to have been unwilling or unable to develop a specific theoretical model for the calculation of cultural damage. For example, in the Niue case119 the lower court had not provided any details on how it had arrived at the 40 per cent cultural value premium. The Court of Appeal, however, did not challenge this lack of specificity. Instead, it limited itself to observing that the amount of compensation above the land's assessed market value necessarily implied that the lower court had made allowance for the cultural value that the (p.107) plaintiffs attached to the land. Significantly more revealing is the decision in the Aurora Gold case in which the Tribunal commented specifically on the methodology of its cultural value determination.120 While noting the paucity of published materials on the method or methods which a court or tribunal might use to determine the appropriate amount of compensation payable in cultural damage cases, it refused to rely upon economic valuation methodologies, such as contingent valuation, and, indeed, expressed reservations as to their relevance in general to assessing the value of native title land.121 On the other hand, the Tribunal was not troubled by possible suggestions that its own approach—a matter, as it saw, of simply construing the meaning of the relevant provisions of the NTA and Mining Act—might be deemed arbitrary in the sense that there were no universal and objective criteria against which to make the determination.122 Instead, it defended its case-by-case approach to cultural damage claims as the type of decision-making of which courts had ample experience and had performed well at in the past.

Although this is a relatively novel aspect of the emerging law of native title, it will have to be addressed by tribunals and courts when ruling on applications for compensation…Decisions on those applications will constitute a growing body of law and practice which will develop just as the law has done in relation to such things as damages for pain and suffering in personal injuries litigation.123

It might, of course, be objected that assessing damages for pain and suffering in personal injury cases differs from valuing cultural damage. Pain and suffering, while admittedly a subjective experience as regards intensity, is nevertheless a generally accessible experience. By contrast, indigenous peoples’ cultural damage represents a value deprivation that may not be generally accessible. It stands to reason, therefore, that in assuming responsibility for putting a monetary value on cultural damage, courts are specifically called upon to demonstrate appreciation of and openness to indigenous peoples’ special cultural damage arguments, a point that was duly conceded by the Aurora Gold Tribunal.124

Once it has acknowledged this issue of ‘cultural competence’125 the Tribunal's willingness to embark upon the gradual, case-by-case development of a law of cultural damages makes eminent sense. For the problems inherent in (p.108) the use of economic valuation techniques on one hand, and the highly idiosyncratic cultural damage claims that would have to be assessed on the other, leave no real alternative to judicial intervention. Admittedly, the adoption of a general schedule of compensation through legislation or administrative regulation might offer the prospect of lower transaction costs: but it would come at the risk of diminished fairness to the individual claimant. For judicial case-by-case assessment is clearly superior in terms of its sensitivity to variations in individual cultural damage claims.

In sum, the valuation approach that emerges from the jurisprudence of national courts and tribunals reflects an inescapable logic: compensation awards for lifestyle impairment demand an individualized, context-sensitive approach. Assessment of cultural value, therefore, is subject to a not insubstantial margin of discretion on the part of the valuing agent. In this sense, domestic practice—limited though it may be to date—persuasively points the way in which cultural damage claims ought to be approached by international decision-makers, whether those of an environmental or those of a human rights orientation.126 As a matter of fact, this specialized domestic practice mirrors general practice already established in international tribunals in analogous claims contexts.127 In the final analysis, claims for damages for subsistence lifestyle impairment are likely to be treated much like any other claim for moral damage.128

(p.109) VI. Conclusions

This Chapter has attempted to show that, as a matter of international public policy and law, the notion that the costs of economic development activities be ‘internalized’ must extend to the impact of environmental degradation on the subsistence lifestyles of traditional indigenous populations. Full cost-inrernalization is essential from the twin perspectives of respecting the cultural identity of affected communities and protecting and conserving the natural environment. Present international law, as reflected in relevant human rights norms as well as international environmental law, requires that indigenous peoples’ cultural damage be compensated. Compensation, whatever form it ultimately takes, is in turn premised on the valuation, i.e. the monetizing, of the cultural and spiritual significance of the affected natural resource. Given the virtual absence, thus far, of any directly relevant international practice, the experience of domestic courts in assessing indigenous peoples’ claims for cultural damages acquires special significance in showing how such claims should be handled in international fora. While declining to employ economic valuation, techniques, courts have shown themselves perfectly capable of calculating non-economic cultural damages by reference to the latent cultural competence issue and relying on equitable principles as well as a substantial margin of discretion in making the award. In short, lifestyle impairment is not only theoretically compensable under international law; it is also amenable to liquidation, much like any other claim for moral damage.

It should also now be evident why the Ninth Circuit case ought to be recognized as having been decided incorrectly as a matter of construing applicable US law.129 It should be equally evident why the decision, is unlikely to be viewed as a persuasive authority for decision-makers elsewhere. It may be true that in some key countries national law bearing on indigenous peoples or traditional communities continues to be driven primarily by domestic political considerations.130 Some legal developments may even temporarily widen the gap between applicable international normative standards and domestic practices.131 There is, moreover, no denying that any attempts to narrow this gap will be fraught with political and economic difficulties.132 However, few governments will be (p.110) able consistently to ignore applicable international law and policy.133 In the long run, compensation, and thus valuation of the impairment of indigenous peoples’ subsistence lifestyles due to environmental degradation, should be expected to become a routine feature of domestic environmental damage assessment.

Notes:

(1) 104 F. 3rd 1196, 17 January 1997.

(2) Ibid., at 1198.

(3) Ibid.

(4) The judgment does not, of course, call into doubt that a diminution of a ‘subsistence use’ of natural resources might constitute a compensable injury. See ibid., at 1197–8. Note also that the (US) Oil Pollution Act 1990 specifically provides for recovery for diminished subsistence use resulting from the discharge or substantial threat of a discharge of oil into or upon the navigable waters or adjoining shorelines or the exclusive economic zone. See 33 U.S.C.A. §2702(a) and (b)(2)(C).

(5) For example, in the Tasmanian Dam case, the High Court of Australia acknowledged that ‘something which is of significance to mankind may have a special and deeper significance to a particular people because it forms part of their cultural heritage. Thus an Aboriginal archaeological site which is part of the cultural heritage of people of the Aboriginal race has a special and deeper significance for Aboriginal people than for mankind generaly.’ Mason J, in Commonwealth v. Tasmania (Tasmanian Dam case), High Court of Australia (1983) 158 CLR 1 at 159. See also Kayano et al. v. Hokkaido Expropriation Committee (hereafter: I he Nibunati Dam case), Judgment of the Sapporo District Court, Civil Division No. 3, 27 March 1997, 1598 Hanrei Jihō 33; 938 Hanrei Times reprinted in 38, ILM 394 at 425 (1999).

(6) Note in this context the Brundtland Commission's finding that ‘more careful and sensitive consideration of…[indigenous or tribal peoples’] interests’, including, in particular, their traditional lifestyles, ‘is a touchstone of sustainable development’. The World Commission on Environment and Development, Our Common future 116 (Oxford, London, United Nations, 1987) (emphasis added); and see section II below .

(7) See test accompanying nn. 1421 below.

(8) ‘Indigenous communities’ and indigenous peoples’ are used here synonymously. Although definitions vary widely, there is general agreement that the basic defining characteristics include ‘pre-existence (or “historical continuity”), distinct cultural forms, non-dominance and self- identification’. See Brölmann and Zieck, ‘Indligenous Peoples’ in Brölmann, Leféber, and Zieck, Peoples and Minorities in International Law (Dordrecht, London, 1993), 187 at 191: cf. Asian Development Bank, The Bank's Policy on Indigenous Peoples 5 (1999) which lists as key characteristies: ‘[D]escent from population groups present in a given area, most often before modern states or territories were created and before modern borelers were defined’; and ‘maintenance of cultural and social identities, and social, economic, cultural, and political institutions separate from mainstream or dominant societies and cultures’.

(9) Ironically, in 1999 the Congress of the US reasserted its constitutional authority over Alaska fish and wiledlife resources ‘to protect and provide the opportunity for continued subsistence uses’ on public and native lands in recognition of. inter alia, the indispcnsability of such uses to the traditional and cultural existence of native communities. See 16 USC § 3111, para. (1). In so doing, Congress reacted to a decision by the Alaska Supreme Court, McDowell v. State of Alaska, 785 P.2d 1 (Alaska, 1989), in which the Court had declared that subsistence priority fishing rights of rural residents, including Eskimos. Indians, and other native people, violated the state constitution's guarantee of equal access to fish and game.

(10) For a sharply critical comment based on domestic legal and policy considerations, see Panoff, ‘In re the Exxon Valdez Alaska Native Class v. Exxon Corp.: Cultural Resources, Subsistence Living, and the Special Injury Rule’ (1998) 28 Env. L 701 at 724.

(11) See e.g. the judgment in McDowell v. State of Alaska, n. 9 above; and, generally, O'Neill, ‘Variable Justice: Environniental Standards, Contaminated Fish, and “Acceptable” Risk to Native Peoples’ (2000) 19 Stanford Env LJ 3.

(12) See, generally, Schoenbaum, ‘Environniental Damages: The Emerging Law in the United States’ in Wetterstein (ed.), Harm to the Environment: The Rights to Compensation and the Assessment of Damages (Oxford, 1997), 159 at 164–8.

(13) See section V below.

(14) In economic terms, a standard definition of pollution or environmental degradation is that of a situation in which private costs and social costs of production/consumption diverge. See e.g. Ruff, ‘The Economic Common Sense of Pollution’ in Dorfman and Dorfman (eds.), Economics of the Envirvonment (2nd edn., New York, 1977), 41 at 45.

(15) Co-Chairmen's Summary of the Discussion, in Report of the Ad Hoc intergovernmental Panel on Forests on its Second Session, UN Doc. E/CN. 17/1996/24, 14 April 1996, paras. 9 and 12.

(16) [Advanced Unedited Text for UN-Official Use Only] Intergovernmental Forum on Forests, Report on its Third Session (Geneva, 3–14 May 1999) [hereafter: ‘IFF 3rd Session’ 20, para, 6; and Advanced Unedited Text of the Substantive Parts of the Report of the Intergovernmental Forum on Forests at its Fourth Session (New York, 31 January—11 February 2000) [hereafter: ‘IFF 4th Session’], UN Doc. E/CN.17/IFF/2000/14, 18.

(17) IFF 3rd Session, n. 16 above, at 19, para. 2: ‘Inadequate valuation of natural forests is an important underlying cause of deforestation. The non-valuation of non-marketable environmental and social services of forests is a market failure.’

(18) Proposal for Action agreed to at the 1996 International Meeting of Indigenous and Other Forest-Dependent Peoples on the Management, Conservation and Sustainable Development of All Types of Forests, Transmitted by Letter dated 15 January 1997 from the Permanent Representatives of Colombia and Denmark to the United Nations addressed to the Secretary-General [hereafter: ‘Proposal for Action’], UN Doc. E.CN.17/IPF/1997/7, 17 January 1997.

(19) IFF 4th Session, n. 16 above, at 28, para. 1.

(20) Preamble, Leticia Declaration, adopted at the 1996 International Meeting of Indigenous and Other Forest-Dependent Peoples on the Management, Conservation and Sustainable Development of All Types of Forests, Leticia, Colombia, 9–13 December 1996, in Proposal for Action, n. 18 above.

(21) IFF 4th Session, n. 16 above, at 28, para. 1.

(22) Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights of Indigenous Peoples, Second Progress Report on the Working Paper prepared by Mrs Erica-lrene Daes, Special Rapporteur, UN Doc. ECN.4/Sub.2/1999/18,3 June 1999, para. 11. See also Fitzmaurice, ‘The Sámi People: Current Issues Facing an Indigenous People in the Nordic Region’ (1997) 8 Finnish Yearbook Int'l L 200 at 222, who notes that among the elements that define ‘indigenous people’ ‘probably the most crucial of all…[is] the relationship with the land’. Note further Article 5, para. (a) of the European Landscape Convention, ETS No. 176, of 20 October 2000. pursuant to which ‘Fach Party undertakes…to recognise landscapes in law as an essential component of people's surroundings, an expression of the diversify of their shared cultural and natural heritage, and a foundation of their identity’.

(23) For example, Dermot Smyth, quoting Justice Woodward in the 1974 Royal Commission Report on Land Rights, describes the relationship as follows: ‘Land generally has spiritual significance for Aborigines but because of the form and content of myths relating to it, some land is more-important than other land…The routes taken by the Creator Beings in their Dreamtime journeys…link many sacred sites together in a web of Dreaming tracks criss-crossing the country. Dreaming tracks can run for hundreds, even thousands of kilometres, from desert to the coast and crossing through many “countries”. Stories and songs which relate the creation events that occurred along Dreaming tracks may be shared by peoples in countries through which the tracks pass. For this reason Dreaming tracks are sometimes known as “songlines”…Sacred sites and Dreaming tracks also serve the important function of defining Aboriginal countries. Clan estates, and larger tribal or language areas, are largely defined not so much by rigid external boundaries but by the location and significance of sacred sites, Dreaming tracks and other special places’: Smyth, ‘Understanding Country: The Importance of Land and Sea in Aboriginal and Torres Strait Islander Societies’, Reconciliation and Social justice Library, posted at www.austlii.edu.au/au/special/rsjproject/rsjlibrary/car/kip1/7.html, visited 6 Augusr 2000.

(24) The second clause of the Treaty of Waitangi of 1840 guaranteed to Maori chiefs subject to British government the tino rangatiratanga and taonga, or the ‘full exclusive and undisturbed possession of their Lands and Estates, Forests, [and] Fisheries and other property’. As to the centrality of the concept of tino rangatirgata to modern Maori nationalist aspirations, see e.g. Walker, ‘Maori Sovereignty, Colonial and Post-Colonial Discourses’ in Price Cohen (ed.). Human Rights of Indigenous Peoples (New York, 1998), 109.

(25) Decision of 27 February 1997, 1997 NZDCR Lexis 27; [1997] DCR 446. The District Court of Wanganui decision in favour of McRitchie was, however, reversed by the High Court of Wanganui on 14 May 1998 (1998 3 NZLR Lexis 611). McRitchie's appeal of the High Court's decision was subsequently dismissed by the Wellington Court of Appeals on 24 November 1998 (1998 NZLR Lexis 62).

(26) Ibid., at 51–2.

(27) It has been rightly noted that indigenous peoples’ culture is more than the mere physical manifestations of culture, such as environment-sensitive cultural activities. See Christie, ‘Aboriginal Rights, Aboriginal Culture, and Protection’ (1998) 36 Osgoode Hall LJ 447 at 449. However, there is simply no denying the foundational role, the function as a centrepiece that land and natural resources play in the whole edifice of ‘indigenous culture’. Note in this context also the European Landscape Convention, n. 22 above. Article 5(a).

(28) For a discussion of the cultural sensitivity of the means of protection, see section V below.

(29) For affirmations of this self-interest, see e.g. the Declaration on the Rights of Persons Belonging to National, Ethnic, Religious or Linguistic Minorities, UN GA Res. 47/135 of 18 December 1992, Preamble; the 1993 Vienna Declaration adopted at the World Conference on Human Rights, UN Doc. A/CONF.157/23, 12 July 1993, Article 20: ‘The World Conference on Human Rights recognizes…the unique contribution of indigenous people to the development and plurality of society…’. See further the UN Draft Declaration on the Rights of Indigenous Peoples, UN Doc. E/CN.4/SUB.2/1994/2/Add.1, Preamble: ‘Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of mankind’; and the proposed American Declaration on the Rights of Indigenous Peoples, Approved by the Inter-American Commission on Human Rights on 26 February 1997, at its 1333rd Session, 95th Session, Preamble.

(30) Thus, the Wanganui District Court noted that the taonga ‘is a manifestation of a complex Maori physico-spiritual conception of life and life's forces. It contains some economic benefits, but it is also a giver of personal identity, a symbol of social stability, and a source of emotional and spiritual strength’. See n. 25 above. But note that in the past some New Zealand environmentalists have expressed concern over Maori stewardship of previously government-administered national parks and scenic areas, such as Stephens Islands in the Cook Strait. See e.g. ‘Landmark Decisions’, The Economist, 20 November 1993, at 40.

(31) ‘Reviving Tradition, Tribe Kills a Whale’. New York Times, 18 May 1999, A14.

(32) In recognition of this, the International Whaling Commission continues to set special quotas for limited Aboriginal subsistence whaling. See International Whaling Commission, 1946 International Convention for the Regulation of Whaling, Schedule, as amended by the Commission at the 51st Annual Meeting, 1999, and replacing that dated September 1998. Article 13(b), posted at http://ourworld.compuserve.com/homepages/iwcoffice/Schedule.htm, visited 7 June 2000.

(33) For another recent illustration of the possibility of conflict between environmental conservation objectives and indigenous tribal communities’ struggle to maintain their traditional cultural identity, note the Pataxó tribe's occupation of the Monte Pascoal National Park, near Pôrto Seguro, Brazil, which has led to a significant degradation of the park, which harbours one of the last stands of virgin Atlantic rainforest. See ‘Indian Tribe Wants Brazil's Plymouth Rock Back’, New York Times. 1 December 1999, A4. Note also that the Colombian Ministry of the Environment recently denied ‘allegations that the constitutional protection given to African and Native American communities…might come into conflict with legal obligations to protect natural reserves’. See BNA, International Environment Reporter Current Events 846 (1999).

(34) Note in this context the recent failure by the International Whaling Commission to establish a South Pacific whale sanctuary which has been followed by an aggressive expansion of Japanese whaling, ostensibly for ‘scientific’ purposes. See ‘Feu vert pour les chasseurs de baleins nippons’, Le Figaro, 5 July 2000, 3; and ‘Japan Widens Whale Hunt, Provoking Objections’. New York Times, 29 July 2000. A4.

(35) It has also remained a bone of contention in the international community. See e.g. ‘Caribbean Whaler Must Defend Calf Killings’, Times-Picayune, 6 February 1999, F12; and, generally, Firzmaurice, n. 22 above, at 209–14.

(36) For a fascinating cross-culrural analysis that confirms indigenous peoples’ and communities’ pre-eminent role as protectors of their natural environment, see Gray (chapter co-ordinator), ‘Indigenous Peoples, Their Environments and Territories’ in Posey (ed.). Cultural and Spiritual Values of Biodiveisity (London, 1999), 59.

(37) For a detailed exposition of the popular misconception that indigenous peoples’ culture and lifestyles invariably reflect a deep respect for nature and a commitment to sustainable resource use, see e.g. Krech III, The Ecological Indian: Myth and History (New York, London, 1999).

(38) See e.g. G and v. Norway, Applications Nos, 9278/81 and 9415/81 (1984) 35 Ear. Comm. H.R. Decisions&Reports 30 at 36: and the Nilbutani Dam case, n. 5 above, at 418: ‘Indeed the rights arising under the ICCPR [International Covenant for Civil and Political Rights] Article 27 are not unlimited. It is true…that those rights are subject to the limits of public welfare.…But in light of the aims of ICCPR Article 27, any limits on the guarantee of rights must be kept to the narrowest degree possible.’ Moreover, it should be pointed out that not every negative impact on the traditional lifestyle is also likely to amount to an intolerable or internationally wrongful interference with indigenous peoples’ culture. See e.g. Länsmjn et al. v. Finland Communication No. 511/1992, paras. 9.4–7 UN Doc. CCPR/C/52/D/511/1992 (1994).

(39) In this respect, see e.g. Article 7, para. 1 of the Convention concerning Indigenous Peoples in Independent Countries (ILO Convention No. 169): ‘The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for narional and regional development which may affect them directly.’

(40) Human Rights Committee, General Comment adopted by the Human Rights Committee under Article 40(4) of the ICCPR. General Comment No. 23 (50) (Article 27), UN Doc. CCPR/C/21/Rev.1/Add.5, 26 April 1994, 4, para. 7

(41) Communication No. 167/1984, Bernard Ominaya, Chief of the Lubicon Lake Band v. Canada, Official Records of the Human Rights Committee 1989/90, UN Doc. CCRP/9/Add.I, vol. II, Annex IX, para. 33.

(42) Annual Report of the Inter-American Commission on Human Rights 1984–85, OAS Doc. OEA/Ser.L/V.II.66. Doc. 10, rev. 1 (1985) at 31: ‘[I]nternational law in its present state, and as it is found clearly expressed in Article 27 of the International Covenant on Civil and Political Rights, recognizes the right of ethnic groups to special protection…for all those characteristics necessary for the preservation of their cultural identity’.

(43) Report of the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OAS Doc. OEA/Ser.L/VII.62, Doc. 26 (1984) at 81.

(44) A similar view of the scope of cultural rights protection under Article 27 was espoused by the Sapporo District Court in the Nibutani Dam case, n. 5 above, at 418: ‘It is proper to understand that [Article 27 of the ICCPR]…guarantees to individuals belonging to a minority the right to enjoy that minority's culture. Together with this, there is an obligation…imposed upon all contracting parties to exercise due care with regard to this guarantee when deciding upon, or executing, national policies which have the risk of adversely affecting a minority's culture.’

(45) Thus, in G and E v. Norway, n. 38 above, at 35, the European Commission of Human Rights, while rejecting the complaint as inadmissible, recognized that under Article 8 of the European Convention, which guarantees the right to respect for private life, family life or home, ‘a minority group…[was], in principle, entitled to claim the right to respect for the particular life style it may lead’. Applications Nos. 9278/81 and 9415/81, 35 Eur. Comm. H.R. Decisions&Reports 30 at 35 (1984).

(46) On this point see Anaya, who maintains that today much of the Convention reflects customary international law: Anaya, Indigenous Peoples in International Law (New York, Oxford, 1996), 49–57. For a more nuanced analysis see Sweepston, ‘The ILO Indigenous and Tribal Peoples Convention (No. 169): Eight Years After Adoption’ in Price Cohen, n, 24 above, at 17, who notes that apart from the obvious impact on States Parties themselves, the Convention has had significant effect at the policy and technical-operational levels in other individual states and the international development assistance community: ibid., at 34–6.

(47) Article 5, para. (a). See also Article 15 of the Covenant on Economic, Social, and Cultural Rights, whose para. 10 commits states to recognize the right of everyone to take part in cultural life.

(48) Article 7 para. 3.

(49) Article 13, para. 2. Emphasis added.

(50) UN Draft Declaration on the Rights of Indigenous Peoples, n. 29 above.

(51) Proposed American Declaration on the Rights of Indigenous Peoples, n. 29 above, paras. 2 and 4.

(52) Ibid., 3rd preambular paragraph of the Declaration.

(53) Ibid., emphasis added.

(54) Ibid., para. 3.

(55) Adopted by the World t Conference on Human Rights, n. 29 above.

(56) Thus, Goldrick, ‘Canadian Indians, Cultural Rights and the Human Rights Committee’ (1998) 40 ICLQ 658 at 668, discussing the Lubicon Lake Band report (n. 41 above), emphasizes that ‘notwithstanding the expression of the rights in Article 27 of the Covenant in negative terms, its implementation involves positive obligations and significant financial expenditure’. See also Articles 1 and 4 of the Declaration on the Rights of Persons belonging to National, Ethnic, Religious or Linguistic Minorities, n. 29 above. Moreover, all pertinent international legal instruments on indigenous peoples’ rights lay down numerous positive protection obligations on the parr of states. See e.g Articles 14, 15. and 17–19 of the ILO Convention No. 169; Articles 13–17 and 28 of the UN Draft Declaration; and Articles XII, para. 8 and XIX. para. 3 of the proposed American Declaration.

(57) See Anaya, n, 46 above, at 55–6. See also Kastrup, ‘The Internationalization of Indigenous Rights from the Environmental and Human Rights Perspective’ (1997) 32 Texas ILJ 97; and Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights J 5 at 127, who stresses the present-day existence of the right of indigenous peoples ‘to maintain and develop their distinctive identity, their spirituality…and their traditional ways of life”. But see Wolfrum, ‘The Protection of Indigenous Peoples in International Law’ (1999) 59 Zeitschrift f. ausl. öffentliches Recht u. Völkerrecht 369 at 382, who concludes that while the international community has recognized ‘that indigenous peoples require international protection, there is no agreement in sight over what exactly such protection entails’.

(58) Agenda 21, Chapter 26: Recognising and Strengthening the Role of Indigenous People and their Communities, para. 26.3 (iii).

(59) See also the Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests, Principle 5(a), in Report of the United Nations Conference on Environment and Development, Annex III, UNDoc. A/CONF/151/26 (Vol. III), 14 August 1992.

(60) Emphasis added. The obligation is, again, qualified as ‘as far as possible and as appropriate’.

(61) The Nuuk Declaration on Environment and Development, adopted at the Second Ministerial Conference on the Arctic Environment, 16 September 1993, reprinted in (1993) 4 YbIEL 687. In affirming Principle 22 of the Rio Declaration, it recognizes ‘the special role of the indigenous peoples in environmental management and development in the Arctic, and of the significance of their knowledge and traditional practices’.

(62) See paras. 6, 10(b) and (d) of the Declaration of Santa Cruz de la Sierra, posted at www.summit-americas.org/Boliviadec.htm, visited 5 August 2000.

(63) See the Preamble of the Malmö Ministerial Declaration adopted by the Global Environment Forum—Sixth Special Session of the Governing Council of the United Nations Environment Programme, Fifth Plenary Meeting, 31 May 2000, posted at www.unep.org/malmo/malmo_ministerial.htm, visited 2 June 2000, which stresses ‘that success in combating environmental degradation is dependent on the full participation of all actors in society,…respect for ethical and spiritual values and cultural diversify, and protection of indigenous peoples’ knowledge…’; see also para. 24. of the Declaration.

(64) See World Bank, OD 4.20, para. 6. The Inter-American Development Bank's forest policy document circumscribes development as being conditioned upon ‘…due regard to the function these forests perform in protecting the environment and supporting the livelihood of various groups’. See IDB, OP-723 Forestry Development. And, ‘[i]n forestry projects financed by the Bank it will been esured that local groups, including indigenous communities, participate directly or indirectly in the economic benefits generated by these projects. Deterioration of the living conditions of these groups should be avoided, respecting their land and other rights, as determined by national legislation.’ The Asian Development Bank's policy on indigenous peoples stipulates that development initiatives ‘should be compatible in substance and structure with the affected peoples’ culture and social and economic institutions, and commensurate with the needs, aspirations, and demands of affected peoples…Initiatives should be conceived, planned, and implemented…with…respect for indigenous peoples’ dignity, human rights, and cultural uniequeness.’ See Asian Development Bank, n. 8 above, at 17.

(65) For a detailed analysis see Handl, Multilateral Development Banking: Environmental Principles and Concepts reflecting General International Law and Public Policy (Hague-London—Boston 2001).

(66) Indirect evidence—if any were still needed—of the fact that the protection of cultural traditions of indigenous peoples is a matter of international concern emerges also from the operation of the World Heritage Convention. See UNESCO, Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, Operational Guideline for the Implementation of the World Heritage Convention. Doc. WHC-97/2, February 1997, paras. 24(iii) and (v), and 78(f).

Note also that in the dicussions of the UNESCO draft Convention on Underwater Cultural Heritage, the proposal was offereed to include ‘the underwater cultural heritage of indigenous peoples’ in the conventional definition of ‘underwater cultural heritage’. See Report of the Second Meeting of Governmental Experts on the Draft Convention for the Protection of the Underwater Cultural Heritage, UNESCO Doc. CLT-98/CONF.202/7, at 4 (1998).

(67) Howard Mann, speaking on the issue in 1993, noted that ‘the seeds have been sown for the development in international law in relation to indigenous intellectual property, the protection of indigenous lands and culture from environmental encroachments by others, and for priority harvesting of environmental resources’. Mann, ‘International Environmental Law and Aboriginal Rights’ [1993] Proc., C C Int'l Law 144 at 152.

(68) See n. 29 above.

(69) See the text accompanying nn. 10924 below.

(70) For example. Dinah Shelton's otherwise comprehensive recent treatment of remedies for human rights violations does not contain any reference to ‘cultural damages’ as a separate count of ‘compensatory damages’: see Shelton, Remedies in International Human Rights Law (Oxford, 1999), 250–67. See also Sands and Stewart. ‘Valuation of Environmental Damage: US and International Law Approaches’ (1996) 5 RECIEL 290. But see Reisman, ‘Compensation for Human Rights Violations: The Practice of the Past Decade in the Americas’ in Randelzhofer and Tomuschat (eds.), State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (The Hague, London, 1999), 63 at 86–8, who discusses briefly the cultural compensation ramifications of plaintiffs’ indigenous tribal membership in the case of Aloeboetoe et al. Case—Reparations, Judgment of 10 September 1993, Inter-American Court of Human Rights, Series C, No. 15.

(71) ILO Convention No. 169, Articles 15 and 16.

(72) Ibid., Article 15. para. 2. Emphasis added.

(73) Ibid., Article 16, para. 5: ‘Persons thus relocated shall be fully compensated for any resulting loss or injury’.

(74) Ibid., Article 13. para. 2. Emphasis added.

(75) N. 29 above. Additionally, Article 28 emphasizes that ‘[i]ndigenous peoples have the right to the…restoration…of the total environment…as well as to assistance for this purpose from States and through international cooperation’.

(76) See Article 10 of the UN Draft Declaration on the Rights of Indigenous Peoples, n. 29 above.

(77) Ibid., Article 21.

(78) Ibid., Article 30. Emphasis added.

(79) Proposed American Declaration, n. 29 above. Article XVIII, para. 6.

(80) Ibid., Article XXI, para. 3.

(81) Asian Development Bank, n. 8 above, at 17. Emphasis added.

(82) See World Bank, Operational Directive OD 4.20, September 1991, para. 9.

(83) See World Bank, ‘Approach Paper on Revision of OD 4.20 on Indigenous Peoples’, para. 15(c), posted at www.worldbank.org/html/extr/projects.htm, visited 12 June 2000. Emphasis added.

(84) The present parries include, however, several Latin American states with substantial indigenous populations.

(85) See Handl, ‘The Legal Mandate of Multilateral Development Banks as Agents for Change Toward Sustainable Development’ (1998) 92 AJIL 642; and Kingsbury, ‘Operational Policies of International Institutions as Part of the Law-Making Process: The World Bank and Indigenous Peoples’, in Goodwin-Gill and Talmon (eds,). The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford, 1999), 323 at 338–42.

(86) See text accompanying nn. 567 above.

(87) Of course, as intimated before (see n. 38 above), not every cultural value deprivation will be traceable to a state's violation of its international obligations.

(88) See the Chorzów Factory (Merits) case [1928] PCIJ, Ser. A, No. 17, at 47: ‘The essential principle contained in the actual notion of illegal act…is that reparation must, as far as possible, wipe our all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed’. It is true that Article 37, para. 2 of the International Law Commission's draft Articles on State Responsibility restricts compensation to ‘financially assessable damage’. See International Law Commission, State Responsibility: Draft articles provisionally adopted by the Drafting Committee on Second Reading, UN Doc. A/CN.4/L/600, 11 August 2000. However, apart from the fact that this provision would prima facie apply only to inter-state claims, the jurisprudence of international human rights tribunals leaves no doubt that the internationally wrongful act of a state gives rise to an obligation to compensate the individual victim's non-economic harm, including harm that might not be economically assessable, Thus, in the Velásquez Rodírguez case the Inter-American Court of Human Rights, after invoking the dictum in the Chorzóic case, specifically refers to non-economic harm (daño moral) as compensable under international law and especially so in cases involving violations of human rights: see Velásquez- Rodriguez case, Compensatory Damages, Judgment of 21 July 1989. Inter-American Court of Human Rights, Series C, No. paras. 26–7. As to the compensability in the European system of human rights of non-economic harm that is not readily or precisely assessable economically, see n. 126 below.

(89) Holmes, The Common Low (M. De Wolfe, ed., Cambridge, Mass., 1963), xxi-xxii.

(90) For an indication of the problematic nature of deductive reasoning as a method for ascertaining the existence of customary international law, see e.g. the decision of the International Court of Justice in the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) [1980] ICJ Reports 244, at 299, para. 111.

(91) Cf. Sands and Stewart, n. 24 above, at 295.

(92) As to the practice of the Inter-American Court of Human Rights, pursuant to Article 61 para. 1 of the American Convention on Human Rights, see the Velásquez-Rodriguez case, n. 88 above, at para, 31. The award of compensation under the European Convention for the Protection of Human Rights and Fundamental Freedoms is governed by Article 41 (formerly Article 50) of the Convention. In relation thereto, the European Court of Human Rights ‘enjoys a certain discretion in the exercise of the power conferred by Article 50’. See e.g. the Guzzardi v. Italy case, European Court of Human Rights, Judgment of 6 November 1980, Series A, No. 39, 42, para. 114. Note, however, that in the only human rights case involving a claim for compensation before the African Commission on Human and People's Rights, the Commission, without being able to base its decision on an authorizing treaty provision, recommended that the quantum of damages be determined pursuant to the national law of the state concerned. For details, see Shelton. n. 70 above, at 217.

(93) See text accompanying nn. 1421 above.

(94) This is precisely why, for example, the valuation of cultural damage, including lifestyle impairment, is implicit in the standard laid down or about to be incorporated into the operational policies of multilateral development banks.

(95) As to the general significance of this standard, i.e. the reasonableness of the costs of restoration, at both the international and the domestic legal levels, see e.g. Article 1, para. (g) of the 1997 Convention on Supplementary Compensation for Nuclear Damage, reproduced in (1997) 36 ILM 1454: ‘Measures of reinstatement’ means any reasonable measures which have been approved by the competent authorities of the State where the measures were taken, and which aim to reinstate or restore damaged or destroyed components of the environment, or to introduce, where reasonable, the equivalent of these components into the environment’. See also Commonwealth of Puerto Rico v. The M/V Zoe Colocotronis, 628 F.2d 652, at 675 (1st Cir. 1980).

(96) For a discussion of the fact that ‘compensation’ might take a form other than of payment of monetary damages, see text accompanying nn. 97101 below.

(97) Decision of the Court of Appeal of Niue. No. 7478, of 10 March 1997 (judgment on file with the author).

(98) Ibid., at 18.

(99) Ibid.

(100) It should be noted, however, that these debates precede the 1998 amendments to the NTA which in many ways must be criticized as regressive from the perspective of Aboriginal cultural rights. Note in this context the sharply critical comments in Aboriginal and Torres Strait Islander Social justice Commissioner, Native Title Report 1999, HREOC. Report No. 1/2000 [hereafter: Native Title Report 1999] 3 (1999): ‘The recent amendments to the NTA represent a legislative “resolution” to the meaning of native title in which non-Indigenous interests largely prevail over Indigenous ones. Gains made from the Mabo (No.2) decision, the original NTA, and the Wik decision have been significantly eroded as a result of the amendments.’

(101) See e.g. Lavarch and Riding, ‘A New Way of Compensating: Maintenance of Culture through Agreement’, in Strelein, Native Title Research Unit, Issues Paper No.21, April 1998. A right to negotiate such agreements is specifically recognized in the NTA, s.26(2), according to which people who are registered as possessing or claiming native title have a ‘right to negotiate’ in relation to certain kinds of ‘permissible future acts’, such as acts relating to mining (including both exploration and production) and the compulsory acquisition of native title rights for the benefit of a third party. Note, however, that as a result of the 1998 amendments to the NTA, this right of native title holders or claimants to negotiate has been substantially reduced: see e.g. Native Title Report, 1999, n. 100 above, at 43.

(102) See text accompanying nn. 825 above.

(103) Lavarch and Riding, n. 10 above, emphasize: ‘[I]f there is to be “compensation” for native title…payment of a lump sum will not suffice. Instead, ways must be found for native title holders to continue their traditional laws and customs and to continue to exercise responsibility for country.’

(104) All three methods measure environmental value indirectly by drawing upon observable data on individuals’ behaviour. Travel cost and random utility techniques are based on expenditures and travel behaviour for recreational opportunities, whereas hedonic pricing seeks to extract the value of environmental attributes of a given good from its overall economic value. The problem with all three methods lies in the fact that in relation to members of the general public, ‘subsistence lifestyle’ represents non-use values. Therefore the methods will not reveal any observable interaction between that individual member of the general public and the resource in question. See Chapter 3 above.

(105) For a discussion of some of the standard objections to t CV, see e.g. State of Ohio v. U.S. Dept. of the Interior, 880 F.2d 432, at 474–8 (D.C. Cir. 1989).

(106) As to the tendency of WTAC to lead to excessive, often grossly excessive, value estimates, see e.g. Cummins, Brookshire and Schulze, Valuing hnvironmental Goods: An Assessment of the Contingent Valuation Method (Totowa, N.J., 1986), 35–6.

(107) For an acknowledgement of the intrinsic problems associated with CV, see e.g. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Economic Valuation of Natural Resource: A Handbook for Coastal Resource Policymakers (1995), 53; Report of the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities, UN Doc. UNEP/Env./3/Inf.1, 15 October 1996. para. 79; Note, ‘“Ask a Silly Question”…Contingent Valuation of Natural Resource Damages’ (1992) 105 Harvard L Rev 1981; and Dobbins, ‘The Pain and Suffering of Environmental Loss: Using Contingent Valuation to Estimate Nonuse Damages’ (1994) 43 Duke LJ 879.

(108) For further details, see text accompanying nn. 11123 below. See, however, Whipple, Assessing Compensation under the Provisions of the Native Title Act (1993), Working Paper Series, Curtin Business School, July 1997, 29, who recommends that ‘contingent valuation ought to be given a fair trial and developed in an attempt to make it a useful tool in the present context’.

(109) Aboriginal and Torres Strait Islander Social Justice Commissioncr. Native litle Report, January—June 1994, chapter 1, sec. 3, posted at www.austlii.edu.au/au/special/rsjproject/rsjlibrary/hreoc/ntreport_1994/25.html, visited 7 August 2000; and Muir, ‘“This Earth has an Aboriginal Culture Inside”: Recognizing the Cultural Value of Country’, in Strelein (ed.), Land, Rights, Laws: Issues of Native Title, Issues Paper No. 23 July 1998, who warns ‘against equating rights flowing from Indigenous laws and culture in a non-indigenous manner’.

(110) Gobbo, ‘Mabo: Compensation for Extinguishment of Native Title’ (1993) LIJ 1163 at 1167.

(111) See n. 97 above.

(112) See n. 97 above, at 8.

(113) Ibid., at 20.

(114) Ibid., at 11 and 20.

(116) Ibid., at s. (4)(g)(iv).

(117) Ibid.

(118) Ibid.

(119) See n. 97 above.

(120) See n. 115 above.

(121) Ibid.

(122) Ibid.

(123) Ibid.

(124) The Tribunal tuuk great pains to emphasizc that Australian courts in general were becoming sensitive to Aboriginal cultural claims. Australian courts, the Tribunal noted, were ‘increasingly aware of the nature of the affiliations which groups of indigenous people have to tracts of land and to certain sites and areas within their traditional countries’: ibid, quoting Brennan J, in Gerhardy v. Brown (1985) 159 CLR 142–5.

(125) This is, of course, an important point, as the basic legitimacy of the valuation exercise depends in no small measure on the process's perceived openness and fairness to indigenous peoples’ cultural interests. The need for indigenous peoples’ input, directly or indirectly, in the valuation process is implicitly driven home in the UN Draft Declaration (see n. 29 above): the only international legal instrument specifically to address the issue thus far. Its Art. 30 calls for compensation of cultural or spiritual damage ‘pursuant to agreement with the indigenous peoples concerned’. To ensure such input and thereby to avoid any appearances of cultural bias courts could seek the assistance of special experts on indigenous culture, etc.

(126) Indeed, international compensation practice has already begun to reflect a heightened sensitivity to the issue of cultural damages. For example, it has been noted that in the Aloehoetoe case, n. 70 above, the Inter-American Commission of Human Rights argued, albeit somewhat inconsistently, that the social structure of the traditional Maroon community, from which the plaintiffs came, should influence the quantum (as well as the pattern of distribution) of compensation. See Reisman. n. 70 above, at 86. Moreover, in the Loayza Tamayo case the Inter-American Court of Human Rights endorsed a novel concept of damages, ‘life plan’ or ‘proyeco de vida’ See Loayza Tamayo case. Reparations, Judgment of 27 November 1998, Inter-American Court of Human Rights, Series C. No. 42, paras. 144–54. This head of damage aims at compensation for loss or severe diminution of a person's ‘full self-actualization’, taking into account his/her calling in life, particular circumstances, potentialities, and ambitions. See ibid., at para. 147. The Court's recognition of this new category of damages has not found universal acclaim as the need for such a separate head has been questioned. Moreover, the Court did acknowledge that ‘neither case law nor doctrine ha[d] evolved to the point where acknowledgement of damage to a life plan…[could] be translated into economic terms’: ibid., at para, 153. The decision is nevertheless important in the present context, as the concept's rationale, namely to redress wrongful injury in a way that ‘approximates the ideal of restitutio in integrum (ibid., at para. 151), implies a willingness to scrutinize the facts of each individual case carefully to provide a correspondingly individualized remedy.

(127) When damage claims cannot readily or precisely be calculated in monetary terms, they will be assessed equitably. See e.g. the Case of López Ostra v. Spain. European Court of Human Rights, Judgment of 9 December 1994, para. 65. See generally, van Dijk and van Hoof, Theory and Practice of the Eropean Convention on Human Rights (3rd edn., The Hague. London, 1998) 257. And, ‘[m]oral damage claims must be liquidated by the application of equitable principles’: see Velásquez Rodíguez, n. 88 above, at para. 27.

(128) Except, that is, for the latent issue of cultural competence—a challenge that, as domestic practice shows, courts should none the less be capable of addressing readily. See text accompanying nn. 1245 above.

(129) lt seems undeniable that as a matter of construing applicable federal law in accordance with the International Covenant of Civil and Political Rights—to which the US is a party—the Court ought to have decided the case differently. After all, all treaty law is federal law and thus supersedes inconsistent state law.

(130) See Magallanes, ‘International Human Rights and Their Impact on Domestic Law on Indigenous Peoples’ Rights in Australia, Canada and New Zealand’, in Price Cohen (ed.), n. 24 above, 235 at 257.

(131) Consider, for example, the Native Title Amendments Act 1998, which has been criticized both inside and outside Australia as setting back the cause of human rights of Australia's Aboriginal and Torres Strait Islander peoples. See nn. 1001 above and n. 135 below.

(132) Thus the progressive implementation or realization at the domestic level of many of the indigenous peoples’ existing international entitlements, whether through legislation or through court decisions, is going to give rise to social conflict and economic dislocations. For recent indications of some of these difficulties in, for example, Canada, following the Supreme Court decision in Marshall v. Her Majesty the Queen [1999] 3 SCR 456, see e.g ‘Of Fish, Trees—and Natives’, The Eonomist, 13 November 1999, 38; and ‘A Conflict on Lobster Heats Up in Canada’, Nen York Times. 16 August 2000, A7.

(133) Australia has come under pressure as a result of continued criticism from the UN Committee on the Elimination of Racial Discrimination. a significant part of which has focused on Australia's handling of native title land issues. See Committee on the Elimination of Racial Discrimination, Decision (2) 54 on Australia, UN Doc. CERD/C/54/Misc.40/Rev.2, 18 March 1999. paras. 6–8; and Concluding Observations by the Committee on the Elimmation of Racial Discrimination: Australia. 19/04/2000. CERD/C/304/Add.101 (concluding Observations/Comments). UN Doc. CERD/C/56/Misc.42/rev.3, 24 March 2000, paras. 8–10. In response, the Australian government has decided to suspend, at least for the moment, its co-operation with the Committee's human rights monitors. See ‘Australian Action Reopens Dispute on Human Rights Monirors’, New York Times, 31 August 2000. A3.