Voices from the Margins: Indigenous Welfare and Environmental Justice

By Fionn, Cassie and Vera; mentored by Elizabeth Wu

Introduction

Indigenous people make up a small fraction of the world’s population, yet the land they hold or manage is estimated at half or more of the world’s remaining land area, including many untouched ecosystems. Accordingly, climate and environmental policies increasingly depend on communities who have very little say in how that policy gets made. This essay argues that indigenous people are central to environmental governance in practice but are often sidelined in matters relating to law and policy, a pattern repeated across different countries and different areas of law.

Environmental justice is usually illustrated via three different ideas:^[1] (a) distributive justice, where there is fair allocation of environmental benefits and harms; (b) procedural justice, where there is equal say in decision-making;^[2] and (c) recognition justice, whether a community’s identity and worldview are acknowledged.^[3] This essay seeks to propose another idea: remedial justice, whether a community actually has a way to enforce its rights once they are recognised. Indonesia, Papua New Guinea (“PNG”), and even the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) collectively show the same problem: communities get recognised, but nothing forces the recognition to be acted on.

Part I sets out three gaps that recur in domestic environmental governance. Part II asks whether international agreements, such as UNDRIP and the Paris Agreement, closes these gaps or just repeats them on a larger scale. Part III tests this pattern by using two case studies, Indonesia and PNG, to show two different ways recognition can fail to protect indigenous communities. Lastly, we conclude by analysing the common themes in the analysis of the gaps in the above parts, echoing that indigenous sovereignty cannot be an afterthought in the process of environmental governance, so that indigenous communities can play an active role in ensuring environmental justice.

Part I: Indigenous People and Environmental Justice

As earlier introduced, environmental justice scholarship is conventionally organised around three interlocking pillars of distributive, procedural and recognition justice.^[4] Each of these pillars, however, presupposes a prior condition frequently absent for indigenous communities: formal legal recognition as rights‑holding subjects. A community cannot be afforded a fair share of decision‑making authority, nor can its worldview be given effect in policy, if the legal system does not first accept that the community exists as a distinct bearer of rights. This essay argues that it is this anterior deficiency in recognition that explains why indigenous communities remain structurally marginal to environmental governance notwithstanding various gains under the first three pillars. Accordingly, while distributive, procedural, and recognition justice will each surface where relevant to the case studies that follow, this essay’s central focus, and its principal contribution, is remedial justice: the enforceability gap that persists even after distribution, process and recognition have each nominally been achieved.

Non-recognition and the contested status of customary land

The clearest illustration of this deficiency arises in the context of land. In many jurisdictions, indigenous communities are not formally recognised to possess land rights, notwithstanding generations of continuous occupation and customary governance. Indonesia's forestry regime is instructive in this regard. Prior to 2013, Indonesia's Forestry Law classified customary forests governed under indigenous customary law (hukum adat) as a species of state forest.^[5] Consequently, the government retained the authority to grant logging, plantation, or conservation concessions over land that communities regarded as their own, without requiring their consent, as the law did not recognise the community as the land’s rightful proprietor. This position was overturned in 2013, when the Constitutional Court of Indonesia, in Decision No. 35/PUU‑X/2012 (the “2013 decision”), struck down provisions treating customary forests as a subcategory of state forests and held that customary forests belong to indigenous law communities as separate legal subjects rather than to the state.^[6] 

On its face, the decision represents a significant victory for recognition justice. It does not, however, follow that the recognition of a right in principle secures the enjoyment of that right in practice. Following the 2013 decision, a community’s customary status still requires formal verification through local government processes, typically comprising a district‑level regulation and a series of individual head‑of‑district decrees recognising specific communities on a case‑by‑case basis.^[7] This is an administratively demanding and politically vulnerable process; one account of its implementation took approximately five years before Lebong Regency Regulation (Perda) No. 4/2017 was materialised for implementing the 2013 decision.^[8] Thus, it is not that Indonesian law failed to recognise indigenous rights, but that judicial recognition can nonetheless be rendered practically ineffective by a distinct and subsequent barrier of slow and politically contingent local implementation. Recognition justice, standing alone, is therefore insufficient; it must be accompanied by an implementation mechanism capable of converting recognition into an enforceable entitlement.

Worldviews and the limits of consultation

A second, related gap concerns the substance rather than the existence of consultation. Scholars have observed that mainstream environmental justice scholarship, oriented as it is around the equitable distribution of environmental harms, tends to characterise indigenous communities as merely one vulnerable population among others exposed to environmental risk. Kyle Whyte has resisted this characterisation, arguing that indigenous peoples’ exposure to environmental and climate harm cannot be disentangled from the historical process of colonial dispossession that produced the conditions of that exposure, and that describing such exposure in the generic language of “vulnerability” obscures its true cause.^[9] 

The concept of free, prior and informed consent (“FPIC”) requires not merely notice to indigenous communities but their informed agreement in advance of any measure affecting their lands, and is therefore best understood as a formalised, heightened form of consultation rather than a standard operating independently of it. However, despite the state’s compliance with formal consultation frameworks such as FPIC, remedial justice may still be out of reach if the legal regime fails to address what happens to infrastructure already in place. More broadly, this raises the question of whether the remedial structures available through court proceedings or regulatory action are capable of effectively addressing the underlying problem. This is even when that framework is nominally pursued in service of environmental goals such as the transition to renewable energy.

The Fosen wind farm dispute in Norway illustrates this dynamic with particular force. The Storheia and Roan wind farms were approved and constructed on reindeer‑herding land relied upon by the Sámi, a project situated squarely within Norway’s own climate and renewable‑energy policy.^[10] In October 2021, the Norwegian Supreme Court unanimously held that the wind farms violated the Sámi's cultural rights under Article 27 of the UN Covenant on Civil and Political Rights, and declared the operating licences for the two wind farms invalid.^[11] Yet, the ruling prescribed no consequence for the infrastructure already in place, and the turbines accordingly continued to operate for more than two years. This is until Norway reached a partial settlement in December 2023 under which the southern Sámi community would receive annual compensation for the remaining operational lifespan of the turbines, rather than their removal.^[12] This demonstrates that even a legal outcome squarely vindicating an indigenous worldview does not, without more, displace the state's prior institutional and infrastructural commitment to its own extractive or developmental framework.

The implementation gap in international climate policy

A third gap concerns the disjuncture between consultation and influence. A 2025/26 analysis undertaken by the International Work Group for Indigenous Affairs examined the Nationally Determined Contributions (“NDCs”) that states submit under the Paris Agreement and assessed the extent to which they engage with indigenous peoples. The analysis found that, as of August 2025, 54% of the 195 states had referenced indigenous rights in their NDCs, a marked increase from 22% in the first submission cycle of 2015–16.^[13] This apparent progress, however, conceals a more troubling pattern: only 8% of states recognised indigenous jurisdiction over land, territories, or resources in any form, and only a single state explicitly recognised an indigenous legal system.^[14] States have, in other words, become considerably more willing to acknowledge indigenous peoples within their climate commitments, but markedly less willing to cede any corresponding decision‑making authority over land. The same analysis found that only 14 states explained how indigenous peoples were substantively involved in the design of their NDCs, notwithstanding an agreement reached at 24th Conference of the Parties to the United Nations Framework Convention on Climate Change (“COP24”) in 2018 that states would report on precisely this point; the great majority of what was characterised as “involvement” amounted to generic stakeholder consultation rather than any genuinely self‑determined process.^[15] The authors of the analysis describe this as an “implementation gap”: indigenous peoples have become increasingly visible within the text of climate governance instruments without becoming correspondingly influential over their content.^[16]

The cumulative significance of these gaps

Read together, these three gaps explain why indigenous communities remain structurally marginal to environmental governance notwithstanding the considerable growth in international attention to indigenous rights over the past decade. The first gap demonstrates that recognition justice, even where secured through litigation, may nonetheless be rendered practically ineffective by the administrative machinery required to give it operative effect. The second and third gaps demonstrate that procedural justice is subject to a similar difficulty where consultation may be undertaken in form without indigenous perspectives being permitted to shape substance, and states may reference indigenous peoples extensively while withholding the jurisdictional authority that would allow such references to translate into governance outcomes. It is against this background that Part II turns to consider whether international legal frameworks have succeeded in closing these gaps, or whether, as the analysis below suggests, they exhibit a comparable tendency to grant recognition without conferring structural authority.

Part II: Legal Frameworks and Their Limits

Part I has shown that recognition without implementation is a difficulty that arises at the domestic level. Recognition and enforcement, however, do not occur in a domestic vacuum: states are also subject to international instruments concerning indigenous peoples. Part II will therefore consider whether the position is any different under international law. How, and indeed whether, an international instrument comes to inform domestic recognition depends on how the state in question receives international law into its own legal order, and public international law itself operates, in the first instance, on a state-to-state basis: unlike domestic law, which is backed by the enforcement apparatus of the state, international law depends for its effect on how states choose to treat their obligations toward one another. Where a state's domestic law or practice does not reflect an obligation it has validly assumed under international law, the consequence is that the state may be in breach of that obligation as a matter of international responsibility, not that the international instrument thereby acquires direct effect within the state's own domestic law.

The qualifying effect of Article 46

The principal explanation for why this apparatus has proved less protective than its text suggests, lies in the drafting history of UNDRIP, and in particular in Article 46(1). This provision states that nothing in the Declaration may be construed as authorising any act that would impair, in whole or in part, the “territorial integrity or political unity of sovereign and independent States.”^[17] The clause was inserted late in the negotiating process, despite contention regarding the divergences in the interpretation of Article 46.^[18] Its significance lies in the fact that it confers upon states themselves the power to determine when an indigenous rights claim exceeds what a state regards as consistent with its territorial or political integrity. This is a qualification internal to the instrument’s own text, and is therefore distinct from the difficulty in incorporation described above. Even a state that received UNDRIP directly into its domestic law would still face a text that lets it define the obligation away. Where a state may invoke Article 46 whenever an indigenous claim is perceived to threaten that integrity, the state becomes, in effect, the final arbiter of its own compliance with the remainder of the Declaration. Two examples illustrate the practical operation of this qualification. Upon Australia’s endorsement of UNDRIP, its then-Prime Minister Kevin Rudd stated that Australia’s reservations concerning the FPIC elements in Article 20 would be “interpreted in accordance with Article 46.”^[19] Canada, similarly, endorsed UNDRIP in 2010 only on the basis that it would interpret the Declaration’s principles “in a manner that is consistent with [their] Constitution and legal framework,” thereby subordinating UNDRIP’s content to existing domestic law rather than the converse.^[20] Here, the entitlement that a state may lawfully redefine whenever its application becomes inconvenient does not, in substance, constitute an enforceable right, but rather a standard to which the state has agreed to be bound only on terms of its own choosing.

Recognition without structural change

It would be insufficient, however, to conclude from the foregoing that UNDRIP’s deficiencies are merely a matter of imprecise drafting capable of correction through amendment. Indigenous legal scholarship suggests that the underlying difficulty is more fundamental. Drawing on Charles Taylor’s account of the “politics of recognition,” Glen Coulthard has argued that where a state extends recognition to indigenous rights, whether through legislation, land claims processes, or self‑government agreements, this may alleviate some of the more acute effects of colonial and capitalist control over indigenous land without altering the underlying allocation of authority over that land.^[21] Applied to UNDRIP, this critique suggests that the Declaration is capable of producing genuine and useful gains, most notably by furnishing indigenous peoples with a recognised legal vocabulary and an institutional platform through which to advance their claims, while nonetheless leaving the state as the ultimate decision‑maker as to whether, and to what extent, those claims are honoured. This structural pattern is consistent with the position identified in Part I in relation to Indonesia: the 2013 decision conferred a right upon indigenous communities, yet control over whether and when that right became operative for any given community remained with local government. The same configuration of formal recognition coupled with informal control accordingly recurs at both the domestic and the international level.

The institutional gap

A further, more elementary difficulty compounds the structural critique set out above. UNDRIP, as a General Assembly declaration rather than a treaty, does not generate binding legal obligations in the manner of a ratified convention. The UNPFII, correspondingly, functions as an advisory body empowered to raise concerns and issue recommendations, but is not equipped to adjudicate an individual community’s land claim or to compel a state’s compliance. This leaves an indigenous community seeking redress with two realistic avenues: recourse to a domestic court prepared to treat UNDRIP as persuasive authority, as the Indonesian Constitutional Court may be said to have done in substance in 2013, albeit without relying on UNDRIP directly or, alternatively, reliance upon international political pressure in the absence of any binding international remedy. Where domestic courts prove unreceptive, indigenous communities are left, in Hayden King’s assessment of the Canadian position, with implementation commitments that “lack strong enforcement mechanisms and rel[y] on the government of the day's interpretation” of what compliance requires.^[22] 

Part III: Case Studies

Indonesia

Indonesia is a good example of the same problem of recognition without enforcement, but on a national scale. Part I discussed the Constitutional Court’s 2013 decision, which said customary forests belong to indigenous communities and not the state.^[23] After that decision, two things have gotten in the way: mining concessions and carbon offset markets.

Nickel Mining and the Limits of the 2013 Decision

Indonesia has the world’s largest nickel reserves, and demand for nickel has grown quickly because of electric vehicles. Much of this nickel sits under customary land in Eastern Indonesia. For example, on Halmahera island in North Maluku, mining projects around the Indonesia Weda Bay Industrial Park have cleared large areas of forest and pushed people off their land.^[24] A 2025 report found that mining companies in the area worked with police and the military to intimidate indigenous communities and take their land, even though no court had ever taken away their customary rights.^[25] A similar occurrence happened more recently in Raja Ampat, West Papua, where mining permits were given out in a protected marine area. However, this was without the FPIC of the indigenous Papuan communities who live there.^[26]

These cases demonstrate the danger of issuing mining permits without any underlying analysis of indigenous rights. Mining permits come from a different legal process than the one used to recognise customary forests. Pursuant to Article 35 of Indonesia's mining law, the Minerva Law, mining permits can be granted by the central government, but it is “without the obligation to consult with local government or affected communities”.^[27] Hence, being recognised as an indigenous community does not give a community a veto over a mining concession on the same land.

According to the Indigenous Peoples’ Alliance of the Archipelago, indigenous communities were involved in 687 land conflicts during the ten years that Widodo was President, and lost about 11 million hectares of land in the process.^[28] Hence, the gap identified in Part I gets worse here: even a community that succeeds in getting recognised may still lose its land to a mining company under a completely different law.

Communities can sometimes challenge a permit afterwards through the courts. In 2024, Indonesia’s Supreme Court revoked an environmental permit for a mining company, Dairi Prima Mineral (“DPM”), to begin constructions on a mine in North Sumatra following a legal challenge from the affected community.^[29] In spite of this, DPM said it will “continue construction despite the decision”.^[30] Eventually, the Ministry of Environment and Forestry revoked the permit in May 2025, but reissued a new approval for the same project roughly ten months later, based on an updated assessment that critics say changed little of substance.^[31] Hence, even a Supreme Court ruling did not give this affected community a lasting remedy and the same decision on granting mining permits was made again through a different administrative process.

Carbon Markets

Mining is not the only reason that recognition has failed to translate into protection. Another pertinent problem lies in the growing value of forests as carbon assets. REDD+, a UN climate change framework, and other related forest-carbon initiatives have made forests relevant not only to the recognition of indigenous land, but also to Indonesia’s climate targets and the economic value attached to emissions reductions. This creates a tension with the recognition of indigenous lands. A forest could be subject to a community’s customary claim, but also subject to the state’s broader interest of retaining authority over carbon governance. Astuti and McGregor’s study of Central Kalimantan elaborates on this tension, finding that the emergence of  REDD+ alongside the constitutional recognition of indigenous land claims and the One Map initiative created new opportunities for indigenous communities to assert claims over their land, but also new forms of exclusions as different actors compete to define and control their territory.^[32] 

Fairhead, Leach and Scoones describe this overlap between environmental objectives and the acquisition or retention of control over land as “green grabbing”, which is the appropriation of land and resources for environmental ends which reproduces the same dispossession historically associated with extractive industry.^[33] Green grabbing is not limited to the physical acquisition of land. It can also occur through changes in who has authority to determine how a piece of land is used, who can access its resources, and who is entitled to benefit from their economic value.^[34] For example, in the context of forest carbon, a community may continue to inhabit and depend on its forest while decisions over its conservation, carbon value, or participation in carbon programmes are increasingly made by the state or other external actors.

Carbon markets hence create a competing reason for retaining control over land under the guise of environmental protection. Environmental protection itself becomes a source of competing claims over land and control over that land. The expansion of carbon markets may consequently reproduce some of the same difficulties that have prevented recognition from leading to effective protection, even where the underlying objective is still environmental protection.

The Indigenous Peoples Bill

Indonesia has also had a draft Indigenous Peoples Bill (Rancangan Undang-Undang Masyarakat Hukum Adat, or "RUU Masyarakat Adat") in circulation since approximately 2010. It was intended to address the difficulty identified above by establishing a single national process for recognising indigenous communities, in place of the slow, district-by-district process described in Part I. The bill has, however, been repeatedly reintroduced without being passed, failing to clear three successive parliamentary terms and two presidencies despite its 2009 origin.^[35]

The bill returned to Parliament's national legislative priority list in 2025, and the advocacy surrounding it has, on one view, been comparatively well-organised. It is tracked by the Koalisi Kawal RUU Masyarakat Adat, a coalition whose membership spans established environmental and legal non-governmental organisations and the national indigenous peoples' alliance AMAN, alongside numerous other civil society, academic, and research organisations. This is a relevant distinction to draw, since not every civil society grouping carries equivalent institutional weight: the coalition's composition, long-standing organisations rather than an ad hoc or narrowly-interested grouping, is what lends its assessment of the bill's prospects some credibility. In the coalition's own account, it has held sustained dialogue with state institutions including Komnas HAM, Komnas Perempuan, the Ministry of Law and Human Rights, and the Coordinating Ministry for Human Development and Culture, several of which have voiced explicit support for the bill's passage; the Ministry of Law and Human Rights in particular affirmed its readiness to help harmonise the bill across ministries even as Parliament had, by the coalition's telling, yet to form the working committee needed to begin formal deliberation.^[36]

Parliamentary support nonetheless remains divided. Only two factions have positioned themselves as principal proponents of the bill, while larger factions have expressed reservations connected to investment concerns and the definition of indigenous communities, and the coalition's own analysis attributes the bill's central obstacle to political rather than substantive disagreement. Read in that light, the state's reluctance to pass a stronger law may reflect a genuine, if unresolved, tension between the bill's objectives and the revenue-generating land uses discussed above, mining concessions and carbon offset arrangements, rather than a settled or coordinated policy of obstruction.

Even accounting for this more active period of engagement, Indonesia operates on a patchwork of individual instances in which particular communities have secured recognition, without an effective mechanism that ensures that such recognition translates into protection at scale.

PNG

PNG presents a unique and complex case study in environmental governance, spanning from its constitutional land rights, an evolving and often disconnected set of government institutions, legislative reforms and informal conservation agreements. This paper does not attempt to give a full recount of PNG’s land governance or its constitutional landscape; it focuses on the features most relevant to the gap between recognition of indigenous groups and enforcement.

PNG currently faces an ongoing crisis driven by resource extraction, constitutional land rights and weak state enforcement capacity. While over 97% of its land mass is constitutionally recognised as customary land owned by indigenous clans,^[37]  the state has repeatedly failed to create operative administrative systems to protect these rights from exploitation. Before its recent reforms, the gap  between formal legal recognition and operational enforcement was most visible in the state’s use of Special Agriculture and Business Leases (“SABLs”). SABLs is a “lease-lease-back” mechanism under the Land Act, whereby the government leases customary land from clan owners and sub-leases it, for up to 99 years to foreign logging and agribusiness developers, largely bypassing FPIC.^[38] From 2003 to 2011, approximately 12% of the country’s land had been issued SABLs. However, it has been widely reported that landowner consent for these leases had been fraudulently obtained, following the establishment of a Commission of Inquiry in 2011.^[39] Yet, even with these findings, only a small fraction of the unlawful leases were revoked and logging still continued in areas after SABLs were struck down.^[40] This illustrates that constitutional recognition in itself, is insufficient for communities.

Where customary landowners have instead sought for environmental justice through litigation, PNG’s courts have struggled to recognise indigenous rights into enforceable remedies. In September 2025, the National Court dismissed a class action brought by over 5000 Bougainville residents against Rio Tinto and Bougainville Copper Ltd over environmental and social damage from the Panguna mine,^[41] without reaching the merits of the environmental claims.^[42] The case failed on the procedural issue of whether the lead plaintiff had the authority to sue on behalf of the other claimants. PNG’s difficulties therefore extend beyond the absence of constitutional recognition. The deficiency lies in the state’s persistent inability to build effective administrative and judicial systems capable of rendering that recognition operative. Statutory mechanisms for land registration have existed since the Land Groups Incorporation Act 1974, yet by 2018, incorporated land groups had successfully registered titles for only about 233,000 hectares of land nationwide.^[43] This shortfall is generally attributed to weak administrative capacity, combined with distrust among indigenous communities, fearing land registration would lead to alienation rather than protection.^[44]

Administrative capacity and the limits of legislative reform

More recently, PNG has made a further attempt at reform. The proposed Customary Land Tenure Act 2026 (“2026 Act”) seeks to strengthen protection for customary landowners.^[45] It proposes to establish a proper clan registry and a customary lands registry, tighten the rules governing land leases and optimise the processes towards resolving disputes concerning customary  land. In principle, these measures address the long-standing issue of communities lacking confidence in the system, and would supply the link between constitutional recognition and an actual enforceable title for the land. Parliament unanimously endorsed the Act in March 2026, in which the United Nations in PNG called it a “historic step” towards stronger and more transparent land governance.^[46] It is worth noting, however, that such optimism is not shared. Comparable reforms have been attempted before, and failed for the recurring reason that legal safeguards were never matched by evidence of implementation on the ground. A similar reform in 2009 to the Land Groups Incorporation Act was regarded as a failure. Out of 1,600 Incorporated Land Groups that obtained certificates of recognition, fewer than 130 ever went on to secure a registered title. The 2026 Act's proponents present it as the mechanism that finally closes this gap. However, its critics, including academic observers of PNG land policy, argue that the recurring failure has been institutional rather than legislative in nature, and that adding further legal machinery is unlikely, on its own, to change an outcome that has repeated itself across successive reforms since 1974.^[47]

Informal alternatives and their limits

It is against this backdrop of repeated legislative failure that communities have taken matters into their own hands via informal means. In October 2024, the Kuglkane Tribe in Simbu Province signed a conservation deed of over 9000 hectares of their land to protect their forest and wildlife, built on contracts, rather than relying on any government land process.^[48] Other neighbouring tribes had also signed similar deeds, rendering most of the local government area to be protected via these conservation deeds without the need for any government land title. A larger conservation deed covering the Torricelli Mountains followed in 2026, with agreement spanning from 266 clan leaders across 41 villages to provide legal protection to the Torricelli Mountain Range.^[49]

It would, however, be short-sighted to treat the emergence of such conservation deeds as a complete solution, or to conclude that government recognition and processes are no longer necessary. Working around the state carries its own risks, as private contractual arrangements can leave communities just as powerless to enforce them. The Ok Tedi litigation illustrates an example of such risks, and adds a further transnational dimension to the remedial gaps faced by indigenous communities.

In 1994, PNG landowners who were affected by decades of pollution from the Ok Tedi mine sued BHP, an Australian company that operated the mine, in its own jurisdiction of Victoria. PNG’s Parliament then passed legislation which restricted landowners’ access to foreign forums, and was reported to have been a deliberate attempt to protect BHP from liability.^[50] In 2002, BHP completed its exit from the mine by transferring its shareholding to PNG Sustainable Development Program Limited (“PNGSDP”), a newly incorporated Singapore company whose constitution committed it to applying the mine's income to benefit "the people of the Western Province" and PNG more broadly.^[51] This transfer moved the assets meant to remedy the mine's environmental harm out of BHP's direct control and into a separate corporate vehicle in a different jurisdiction, governed by Singapore company law rather than PNG law.

Representatives of the communities affected by the mine's pollution later brought claims against PNGSDP, in Ok Tedi Fly River Development Foundation Ltd & Ors v PNG Sustainable Development Program Ltd [2022] SGCA 76, claiming that PNGSDP owed them a fiduciary duty to act in their interest. The Singapore Court of Appeal rejected this claim. The Court’s reasoning was based on principles of corporate and trust law. Although PNGSDP's constitution committed it to benefiting "the people of the Western Province" and of PNG as classes, the intended beneficiaries of PNGSDP, it did not mean that they had enforceable rights. Additionally, the affected communities were never party to the contracts pertaining to PNGSDP's obligations, and nothing in those contracts or PNGSDP's constitution established that individual members of the affected communities had acquired an enforceable right against the company. The communities were, at most, PNGSDP's intended but legally unvested beneficiaries, with no contractual or fiduciary right of their own to fall back on.

This outcome reflects a broader remedial gap in transnational corporate law. PNGSDP existed to remedy the environmental harm to the affected communities. Yet as these communities were never formally party to the company’s contractual obligations, the same structure created to address their harm could not be enforced. While corporate and trust structures are capable of protecting identifiable parties with vested rights, the issue lies in the fact that these structures are not compelled towards providing enforceable rights and protection to indigenous communities. Hence, the case of Ok Tedi shows that even where a remedy is designed with the intent of benefitting the community, that intention in itself has no express weight unless it holds a position within the structure capable of enforcing it.

Part IV: Conclusion

The case studies reveal recurring themes that go beyond the failure of any single legislation, and explains why recognition in itself is insufficient in protecting the indigenous communities involved.

Recognition without power

In the cases examined above, the state retains sole control over the processes that convert recognition into operation, while the Indigenous communities remain uninvolved. Indonesia’s 2013 decision left customary status contingent on a district-by-district verification process controlled entirely by the local government, with no role for the community beyond petitioning for the process (Part I). This pattern extends to the international level: Article 46 of UNDRIP allows states to decide unilaterally when a claim threatens their own territorial integrity, formalising the same exclusive state control as a matter of international law (Part II). The same dynamic plays out domestically elsewhere too — PNG’s constitutional recognition of customary land achieved little in practice as it was never followed with an administrative body capable of registering or enforcing it, leaving the state as the sole and ineffective implementor (Part III). In each case, the states are not merely inefficient. They hold exclusive, largely unaccountable authority over whether recognition becomes operative.

Corporate and transnational powers

However, the same authority the state holds over its processes is largely ineffective where corporations or transnational markets are present. recognition status, even where genuinely secured and effectively enforced does not guarantee success in claims where transnational corporate interests are involved. Indonesia's nickel reserves, driven by global demand from the electric vehicle industry and mining projects around the Weda Bay Industrial Park on Halmahera island have cleared forest and displaced communities despite no court ever having revoked their customary rights, with the underlying demand originating far outside Indonesia's own legal system (Part III). PNG shows the same limitation more explicitly. PNGSDP was a Singapore-incorporated trust created after an Australian multinational, BHP, transferred its shares in the Ok Tedi mine. Although PNGSDP was meant to benefit affected communities, they had no contractual standing to compel it to act in their interest (Part III). As land recognised as indigenous cannot simultaneously be counted toward a state's own carbon accounting targets, participation in international carbon markets gives the state a direct incentive to withhold recognition altogether (Part III). In these cases, domestic recognition had no effect on who had the power to decide what to do with the land; foreign markets, transnational trusts or international accounting systems.

These themes show different pillars of environmental justice failing. The first theme shows the divergence of recognition and procedural justice, where a community can be a recognised rights-holder while remaining absent from the process that determines whether the recognition is acted upon. The second theme shows recognition justice failing to reach distributive justice outcomes where a community’s customary status should remain superior in law. This tells us that environmental and climate justice needs remedial justice as much as it needs the other three pillars. Recognising a community's rights is not enough if there is no court, process, or authority that can actually enforce those rights against a government that would rather not.

Ultimately, what matters is that indigenous sovereignty cannot be an afterthought. A concerted effort is required to change how government structures themselves operate, so that indigenous communities hold a position within them, rather than remaining out of the loop, awaiting for recognition to be acted upon. If the communities who look after so much of the world's remaining land and biodiversity are meant to be real partners in solving the climate and biodiversity crisis, their sovereignty needs a working remedy behind it, not just words on paper.

References

^[1] OECD, Environmental Justice: Context, Challenges and National Approaches (OECD Publishing, 2024) ch 2.2.

^[2] David Schlosberg, "Reconceiving Environmental Justice: Global Movements and Political Theories" (2004) 13(3) Environmental Politics 517 at 517.

^[3]  Kyle Whyte, "The Recognition Dimensions of Environmental Justice in Indian Country" (2011) 4(4) Environmental Justice 199 at 200.

^[4] OECD, Environmental Justice: Context, Challenges and National Approaches (OECD Publishing, 2024) ch 2.2.

^[5] Law No 41 of 1999 on Forestry (Indonesia) Art 1(6).

^[6] Constitutional Court of the Republic of Indonesia, Decision No. 35/PUU‑X/2012 (16 May 2013).

^[7] Supra n [5].

^[8] Erwin Basrin, Herawan Sauni & Emilia Kontes, “Perda as a Constitutional Bridge: Evaluating Local Regulatory Implementation of Constitutional Court Decision 35/2012 on Indigenous Customary Forest Rights in Lebong Regency, Bengkulu, Indonesia” (2026) 4(5) Journal of Law and Regulation Governance.

^[9] Kyle Whyte, “Indigenous Climate Change Studies: Indigenizing Futures, Decolonizing the Anthropocene” (2017) 55(1–2) English Language Notes 153.

^[10] INCITE-DEM, “Norway’s Wind Power Conflict: A Struggle Between Indigenous Rights and Renewable Energy” (2024).

^[11] Sør-Fosen site and Nord-Fosen sida v Staten v/ Olje- og energidepartementet (HR-2021-1975-S) (Supreme Court of Norway, 11 October 2021).

^[12] Elisabeth Rasmussen, “Norway to pay Sámi reindeer herders millions for violating their human rights”, Grist (21 December 2023) https://grist.org/global-indigenous-affairs-desk/norway-to-pay-sami-reindeer-herders-millions-for-violating-their-human-rights/ (accessed 14 August 2026).

^[13] Rosario Carmona, Graeme Reed, Stefan Thorsell & Rocío Yon, “Indigenous rights should be at the heart of climate commitments”, Eco-Business (12 February 2026) https://www.eco-business.com/zh-hans/news/indigenous-rights-should-be-at-the-heart-of-climate-commitments/ (accessed 14 August 2026).

^[14] Ibid.

^[15] Ibid.

^[16] Ibid.

^[17] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st Sess, UN Doc A/RES/61/295 (2007) art 46(1).

^[18] Special Committee on Reconciliation and Indigenous Affairs, Legislative Assembly of the Northwest Territories, Interim Report: What We Heard about the United Nations Declaration on the Rights of Indigenous Peoples and Negotiating Agreements (Committee Report 27-19(2), 30 March 2022) at p 20.

^[19] Hayden King, “UNDRIP’s fundamental flaw”, Open Canada (2 April 2019) https://opencanada.org/undrips-fundamental-flaw/ (accessed 21 August).

^[20] Ibid.

^[21] Ibid.

^[22] Ibid.

^[23] Constitutional Court of the Republic of Indonesia, Decision No. 35/PUU‑X/2012 (16 May 2013), reviewing Law No. 41 of 1999 on Forestry, arts 1(6), 4(3), 5(1)–(3), holding these provisions unconstitutional insofar as they classified customary forests as state forests and recognising indigenous law communities (masyarakat hukum adat) as separate legal subjects.

^[24] "Indonesia: Nickel Mine Destroys Environment, Violates Land Rights", Housing and Land Rights Network (26 February 2024) https://www.hlrn.org/spanish/activitydetails.php?title=Indonesia%3A-Nickel-Mine-Destroys-Environment%2C&id=qGhnbA%3D%3D (accessed 6 August 2026).

^[25] Climate Rights International, "Indonesia: Nickel Industry Harming Human Rights and the Environment" (5 June 2025) https://cri.org/indonesia-nickel-industry-harming-human-rights-and-the-environment/ (accessed 6 August 2026).

^[26] "Environmental Destruction and Indigenous Rights Violations: The Nickel Mining Crisis in Raja Ampat", Human Rights Monitor (4 July 2025) https://humanrightsmonitor.org/news/environmental-destruction-and-indigenous-rights-violations-the-nickel-mining-crisis-in-raja-ampat/ (accessed 6 August 2026).

^[27] Indonesia's Mining Crisis Needs Fair Laws, Local Engagement", The Diplomat (23 October 2025) https://thediplomat.com/2025/10/indonesias-mining-crisis-needs-fair-laws-local-engagement/ (accessed 6 August 2026).

^[28] "Indonesia's Indigenous Rights Bill: Its Urgency Seen Through International Law", AsianSIL Voices (12 August 2025) https://asiansilvoices.com/indonesias-indigenous-rights-bill-its-urgency-seen-through-international-law/ (accessed 6 August 2026).

^[29] Indonesia: Supreme Court Rules in Favour of Communities' Petition to Revoke Environmental Permit for Dairi Zinc-Lead Mine", Business & Human Rights Resource Centre (undated) https://www.business-humanrights.org/en/latest-news/indonesia-supreme-court-rules-in-favour-of-communities-petition-to-revoke-environmental-permit-for-dairi-zinc-lead-mine/ (accessed 6 August 2026).

^[30] Ibid.

^[31] Same Dangerous Project': Outrage Grows After Indonesia Revives Disputed Mine", Eco-Business (2 June 2026) https://www.eco-business.com/news/same-dangerous-project-outrage-grows-after-indonesia-revives-disputed-mine/ (accessed 6 August 2026).

^[32] R Astuti and A McGregor, "Indigenous Land Claims or Green Grabs? Inclusions and Exclusions within Forest Carbon Politics in Indonesia" (2017) 44 J Peasant Stud 445 at 445 at 461 and 462.

^[33] James Fairhead, Melissa Leach & Ian Scoones, "Green Grabbing: A New Appropriation of Nature?" (2012) 39(2) Journal of Peasant Studies 237 at 237.

^[34] James Fairhead, Melissa Leach & Ian Scoones, "Green Grabbing: A New Appropriation of Nature?" (2012) 39(2) Journal of Peasant Studies 237 at 239.

^[35] "Indonesia's Indigenous Rights Bill: Its Urgency Seen Through International Law", AsianSIL Voices (12 August 2025) <https://asiansilvoices.com/indonesias-indigenous-rights-bill-its-urgency-seen-through-international-law/> (accessed 6 August 2026).

^[36] Koalisi Kawal RUU Masyarakat Adat Minta Pembahasan Segera Digulirkan ANTARA News (31 July 2025) https://www.antaranews.com/berita/5005277/koalisi-kawal-ruu-masyarakat-adat-minta-pembahasan-segera-digulirkan (accessed 14 August 2026); see also Koalisi Desak DPR Bahas RUU Masyarakat Adat yang Mandek ProPublika (31 July 2025) https://propublika.id/bcuerita/koalisi-desak-dpr-bahas-ruu-masyarakat-adat-yang-mandek/ (accessed 14 August 2026).

^[37] United Nations in Papua New Guinea, “Historic Step Forward for Customary Land Reform in Papua New Guinea” (12 March 2026) https://papuanewguinea.un.org/en/311690-historic-step-forward-customary-land-reform-papua-new-guinea (accessed 15  August 2026).

^[38] Colin Filer, ‘The Commission of Inquiry into Special Agricultural and Business Leases in Papua New Guinea: Fresh Details for the Portrait of a Process of Expropriation’ (2012) Proceedings of Global Land Grabbing https://www.researchgate.net/publication/259368299_The_Commission_of_Inquiry_into_Special_Agricultural_and_Business_Leases_in_Papua_New_Guinea_Fresh_Details_for_the_Portrait_of_a_Process_of_Expropriation (accessed 15 August 2026).

^[39] Transparency International Papua New Guinea, ‘Special Agriculture & Business Lease’ https://transparencypng.org.pg/special-agriculture-business-lease/ (accessed 15 August 2026).

^[40] Eric Tlozek, ‘Illegal logging leases in Papua New Guinea to be shut down’ (ABC News, 31 August 2017) https://www.abc.net.au/news/2017-08-31/png-to-shut-down-illegal-logging-leases/8858390 (accessed 15 August 2026).

^[41] Panguna Mine Action, ‘The Panguna Mine’ https://pangunamineaction.com/#supreme-court-appeal (accessed 15 August 2026).

^[42] Panguna Mine Action, ‘Decision of Justice Anis, 26 September 2025, and Appeal to the Supreme Court’ (20 November 2025) https://www.pangunamineaction.com/wp-content/uploads/Panguna-Mine-Action-Decision-of-Justice-Anis-26-September-2025-and-Appeal-to-the-Supreme-Court-20-November-2025.pdf (accessed 15 August 2026).

^[43] Malcolm Childress, Markus Kukkonen, Cynthia Berning, Heather Huntington, Jennifer Lisher, Johnathan Lindsay and Abidah Billah Setyowati, Good Practices for Strengthening Land Rights Recognition in Forestlands of the East Asia and Pacific Region (World Bank, 2025) 10 https://documents1.worldbank.org/curated/en/099042625021530969/pdf/P506025-16314728-c976-4e4c-b3c8-d9cc84934dcb.pdf (accessed 15 August 2026).

^[44] Jim Fingleton and Oswald ToLopa, ‘Land registration among the Tolai people: waiting 50 years for titles’ in Making Land Work: Volume Two Case Studies (Australian Agency for International Development, 2008) 73 https://www.dfat.gov.au/sites/default/files/MLW_VolumeTwo_CaseStudy_4.pdf (accessed 15 August 2026).

^[45] United Nations in Papua New Guinea, ‘Historic Step Forward for Customary Land Reform in Papua New Guinea’ (12 March 2026) https://papuanewguinea.un.org/en/311690-historic-step-forward-customary-land-reform-papua-new-guinea (accessed 15 August 2026).

^[46] United Nations in Papua New Guinea, ‘Historic Step Forward for Customary Land Reform in Papua New Guinea’ (n 48)

^[47] Colin Filer, ‘Another Stab at Land Reform in PNG’ (Devpolicy Blog, 28 May 2026) https://devpolicy.org/another-stab-at-land-reform-in-png-20260528/ (accessed 15 August 2026).

^[48] United Nations Development Programme, ‘Community-led conservation initiative leads to signing of conservation deed’ (29 October 2024) https://www.undp.org/papua-new-guinea/blog/community-led-conservation-initiative-leads-signing-conservation-deed (accessed 15 August 2026).

^[49] Tenkile Conservation Alliance, ‘Rainforest Trust’ https://tenkile.com/rainforest-trust-2/ (accessed 15 August 2026).

^[50] ‘PNG bars compensation claims in foreign courts’, Australian Financial Review (15 December 1995) https://www.afr.com/politics/png-bars-compensation-claims-in-foreign-courts-19951215-k6pfd (accessed 15 August 2026).

^[51] BHP Billiton, ‘BHP Billiton Withdraws from Ok Tedi Copper Mine and Establishes Development Fund for Benefit of Papua New Guinea People’ (8 February 2002) https://www.bhp.com/news/media-centre/releases/2002/02/bhp-billiton-withdraws-from-ok-tedi-copper-mine-and-establishes-development-fund-for-benefit-of-papua-new-guinea (accessed 15 August 2026).