A critical analysis of the Australian government's efforts to address the protection of First Nations People's cultural heritage in rapid expansion of the critical mineral industry in bid for Australia to capitalise on the transition to net-zero. The analysis considers the findings from the Joint Standing Committee on Northern Australia's reports into the destruction of the Juukan Gorge and its recommendations to reform cultural heritage protection in Australia. It provides an overview of the relationship between the mining industry and First Nations People, including the imbalance between respective interests and bargaining positions and the need for greater resourcing and capacity to improve First Nations People's ability to protect their interests when negotiating benefit-sharing agreements. The analysis then focuses on the Critical Minerals Strategy and the Future Made in Australia Act 2024 (Cth) as it relates to the protection of First Nations People's cultural heritage. The analysis demonstrates that the Federal government is relying on the use of social licences to operate (SLOs) to deal with cultural heritage protection in the development of its critical mineral industry. Due to this finding, the analysis then considers how effective SLOs are as a mechanism to control and regulate corporate behaviour.
This article analyzes the newly introduced legal framework for communal grassland use and protection in Mongolia. It identifies several shortcomings in the newly introduced legal regime that could hinder the effective promotion of sustainable use and conservation. The article proposes reforms to the grassland use rights system, suggesting the incorporation of property rights attributes by extending the bundle of rights, making them tradable in alignment with both theoretical perspectives and empirical trends. Exclusive grassland rights are proposed for overused/degraded/rehabilitated areas, while nonexclusive rights are suggested for underused areas, with an emphasis on the role of law in managing the transition between overuse/degraded and underuse/rehabilitated. For effective implementation, the article recommends a nationwide, simultaneous rollout to prevent marginalization and fragmentation. While grassland protection and degradation have traditionally been under state control, management is now transitioning to herder communities. This article calls for a new regulatory approach by the state and proposes an innovative, holistic, and adaptive legal and institutional framework that is dynamic and flexible, capable of meeting the diverse socio-economic and ecological contexts across the country.
Under the United Nations climate change regime, REDD+ constitutes one of the important climate change mitigation strategies to reduce deforestation and promote the conservation and sustainable management of forests. REDD+ serves two broad objectives: the mitigation of greenhouse gas emissions (carbon benefits) and providing socio-economic incentives (non-carbon benefits) to the indigenous people and local/tribal communities. To ensure non-carbon benefits, REDD+ states must adhere to REDD+ social safeguards, including respect for the tenure and participatory rights of indigenous peoples and local/tribal communities. Further, the REDD+ needs to be implemented in the context of sustainable development, efforts to eradicate poverty and the pursuit of climate justice whilst reflecting equity. Since India is in the process of implementing a few REDD+ projects, this article studies the proposed Uttarakhand REDD+ project and examines whether the Indian and Uttarakhand legal systems are adequate to address all REDD+ social safeguards. It is found that the institution of Van Panchayat (village forest) in Uttarakhand, which falls under the Indian Forest Act of 1927, is inadequate to address REDD+ social safeguards since it is not gender responsive and dominated by government officials rather than tribal communities. The article argues that the REDD+ social safeguards in the proposed Uttarakhand REDD+ project could be addressed transparently if these safeguards are considered part of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) and the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA). Therefore, the FRA and the PESA need to be amended to the extent that they contextualise REDD+ and provide explicit mention of REDD+ social safeguards in light of historical injustices experienced by the tribal communities.
Recent years have witnessed the trend of entrenching environment-related rights in national constitutions. Yet, in its constitutional amendments in 2018, the People's Republic of China ran counter to such an emerging global trend and incorporated 'ecological civilisation' instead. Against the background of constitutionalising environmental rights being 'declared' around the world as 'an idea whose time has come', this article examines whether the time has come for China to do so. Analysis is mainly conducted surrounding environmental governance before and after China's constitutionalisation of ecological civilisation, with an emphasis on institutional weaknesses. It demonstrates that environmental governance in China, despite the constitutional entrenchment of ecological civilisation, remains institutionally fragile, due to environmental administrative deficits under the top-down state mandate of constructing ecological civilisation. Hence the necessity to facilitate robust environmental governance empowered by a 'rights' discourse indicates that theoretically the time has come for China to constitutionalise environmental rights. However, given China's non-liberal political-legal system and collectivity-emphasised Confucian culture, this article further argues that environmental rights need to be adapted to fit China's particular context to increase the constitutionalisation possibility.
