Abstract
Environmental law is central to addressing the triple planetary crises consisting of chemical pollution, biodiversity loss and climate change. However, its design and implementation can, in some cases, undermine Indigenous peoples’ right to a healthy environment (R2HE) by legitimising their dispossession and exclusion from ancestral lands. Using Kenya as a case study, this article analyses how environmental laws aimed at forestry protection, wildlife conservation and climate mitigation often incorporate mechanisms that facilitate the alienation of Indigenous communities from thier lands. Two case studies make the point concrete: the eviction of the Ogiek community from Eastern Mau and Mt. Elgon to accommodate wildlife and forestry conservation projects, and the displacement of Indigenous peoples in Northeastern Kenya to make room for carbon credit projects under the Northern Kenya Grassland Carbon Project. These cases offer real life examples of the rarely acknowledged tension between environmental laws and Indigenous peoples′ R2HE. Importantly, they call for a reassessment of the ways environmental law is designed and applied in practice so that it does not become instrumental in undermining Indigenous people′s R2HE, which is fundamentally concerned with the protection of their close and enduring connection to their lands and territories. While the analysis relies on Kenya as a case study, the insights it generates are of relevance to Indigenous struggles in other regions where the R2HE is formally recognised or in development.
Keywords
Introduction
In the face of the converging crises of pollution, biodiversity collapse and climate change, the role of environmental law in safeguarding ecosystems and human well-being is critical. However, the application of environmental law can sometimes harm the very environment and communities it seeks to protect. In so doing, it negates the right to a healthy environment (R2HE), now widely considered as one of the core embodiments of environmental protection ideals in many legal systems. Nowhere is this paradox more apparent than in the use of environmental law to legitimise and facilitate the dispossession and exclusion of Indigenous peoples from their lands in pursuit of environmental objectives. 1 This contradiction is encapsulated in the metaphor, ‘illusions of protection’, which highlights the disjunction between environmental law's proclaimed aims of environmental protection and the ways it can render the R2HE illusory in practice, by providing robust legal justification to dispossession of land in pursuit of national and global environmental objectives.
The role of environmental law in subverting the wellbeing of humans and ecosystems, while retaining respectability as a means for environmental protection has come under growing scrutiny within scholarly critiques of environmental law and governance. Environmental justice literature finds problematic the role of environmental law in structuring principles, doctrines and enforcement mechanisms that authorise, legitimise and even incentivise the shifting of environmental burdens and opportunity costs of environmental protection onto marginalised communities. 2 This perspective is especially pertinent as a critique of how environmental law either enables or fails to address the unequal distribution of environmental burdens on Indigenous lands, which are frequently targeted for biodiversity conservation and climate offset initiatives. 3 From an environmental justice perspective, these schemes, structured in national and international environmental law, are also problematic because they enable outsiders to capture most of the benefits while disregarding both the historical and ongoing role of Indigenous communities in protecting these territories, as well as their deep dependence on the land for cultural, spiritual and material well-being. 4 This critique follows closely perspectives that challenge environmental governance for its tendency to prioritize technocratic, state-centric approaches over alternative approaches such as those informed by Indigenous communities and relational land ethics. 5
Further critical voices take issue with environmental law's failure to centre holistic wellbeing as a matter of foundational legal importance as stemming from its lack of ‘normative ambition’. 6 Such lack is demonstrable, from, among other shortcomings, failing to centre the protection of human wellbeing through the recognition of a binding R2HE. 7 Although this observation is accurate, it remains challenging to expect environmental law to exhibit greater ambition when its normative foundations are inherently unstable. This instability stems from its reliance on a range of often conflicting rationales: it is tasked to protect both human interests and the natural environment, realize diverse visions of justice and promote sustainability (an inherently ill-defined objective), all while aligning with the dominant economics-inspired paradigm that prioritises economic efficiency. 8 The diversity of potential normative rationales offered as potential underpinning for environmental law often leads to ambiguity in its interpretation, implementation and enforcement. 9 The lack of clarity can create justificatiory scope for administrators and courts to sidestep thier duty to protect the wellbeing of Indigenous peoples, even in contexts where such prioritisation is a moral, legal or social imperative. 10
Unsuprisingly, environmental law's normative ambiguity creates a vacuum that has been readily filled by extractive neoliberal logic, which now stands as the dominant framework shaping contemporary environmental law. 11 This logic privileges market-based mechanisms as the desirable tools for environmental protection. 12 The overreliance on market-based approaches for environmental protection has led to the proliferation of mechanisms that commodify nature, prioritize short-term economic gains over long-term ecological sustainability and largely serve the interests of wealthy actors, often at the expense of vulnerable communities. 13 Compounding this issue, while environmental law may boast a vast array of potential normative underpinnings, it has remained wedded to anthropocentric values that conflict with Indigenous eco-cosmologies. 14 According to this critique, environmental law has been largely shaped by Western eco-cosmologies that saw Indigenous territories as empty or mismanaged spaces, in need of stewardship by ostensibly more knowledgeable, external actors. 15
Precisely due to its lack of a stable normative foundation that centres holistic eco-human justice, environmental law can be deployed simultaneously to achieve desirable environmental protection goals and in ways that undermine wellbeing of people and ecosystems. It is no wonder then that environmental law has been implicated in reproducing patterns of land alienation and enclosure reminiscent of colonial patterns of dispossession, derisively encapsulated in the metaphors such as ‘green grabbing’. 16 Climate change law, a branch of environmental law, offers a compelling example. Approaches developed under the UNFCCC and other climate change laws to tackle climate change such as Reducing Emissions from Deforestation and Forest Degradation (REDD+) and Certified Emission Reductions (carbon credits) are increasingly linked to violent evictions of Indigenous peoples from their land. 17
This article makes a modest contribution to critical scholarship on environmental law by exploring environmental law's role in negating the R2HE for Indigenous peoples. The paper argues that environmental law, while ostensibly designed to protect human well being, ecosystems and mitigate climate change, often functions as a tool of dispossession against Indigenous peoples. By exposing environmental law's complicity in dispossession, the article challenges the assumption that the creation and enforcement of new environmental laws in response to contemporary environmental challenges is always inherently progressive. One caveat is in order: uncovering environmental law's duplicate role as a protective legal framework and as a tool for dispossession does not imply a rejection of environmental law, nor is it call for weaker environmental standards. Instead, it emphasises the need to align the design, enforcement and implementation of environmental law with Indigenous peoples’ R2HE by intentionally recentring their well-being, deeply rooted in and shaped by their close relationship with the environment, as the foundational regulatory goal.
The analysis unfolds as follows: Part 2 draws on Indigenous perspectives on the relationship between humans and the environment to show that the R2HE is fundamentally about retaining and protecting their deep and enduring relationship with their lands. Using Kenya as a case study, section Part 3 identifies key approaches in environmental legislation which, although designed for forestry conservation, wildlife protection and climate change mitigation, facilitate dispossession in their implementation. Part 4 contextualises the argument through two case examples: the Ogiek community's enduring struggle for access to the Mt. Elgon and Mau Forest and the efforts of pastoralist communities in Northern and North-eastern Kenya to retain access to land amidst competition with carbon mitigation projects. These case studies are fitting examples as they demonstrate how environmental law has historically functioned and continues to operate as a mechanism of control and dispossession. For the Ogiek, their displacement from the Mau and Mt. Elgon Forests originated in colonial-era land alienation policies justified as environmental protection measures, a rationale that post-colonial governments have continued to invoke to justify their ongoing exclusion. 18 The pastoralist communities in Northern Kenya are wrestling against what Stoner describes as ‘contemporary neoliberal environmentalism’, 19 where carbon offsetting projects, often backed by transnational actors are cementing land alienation under the banner of environmental protection goals. Part 5 concludes with brief reflections on how the Kenyan examples resonates with Indigenous struggles globally, where environmental law enables dispossession even in legal contexts where the right is formally recognised or still emerging.
The right to a healthy environment: an Indigenous perspective
What does it mean to claim the R2HE from an Indigenous standpoint? Scholarship theorising the R2HE converge on the idea that, once recognised within human rights law, the right's fundamental aim is to safeguard individual and collective human well-being from the detrimental effects of environmental harm. 20 This scholarship is valuable in highlighting the centrality of human well-being as the fundamental aim of the R2HE. However, it falls short by overlooking the insights that Indigenous eco-cosmologies offer regarding the deeper meaning and purpose of the right. This section aims to show that for Indigenous peoples whose well-being is inseparable from their connection to land, a meaningful R2HE must be understood as fundamentally about retaining and protecting their deep and enduring relationship with their lands.
The centrality of Indigenous peoples’ relationship to land is a recurring theme in Indigenous studies, environmental justice scholarship, and critical legal and postcolonial literature. This body of work reveals how the subjugation of Indigenous communities has been and continues to be systematically pursued through strategies aimed at severing their connection to their land and territories.
21
Similarly, cases brought by Indigenous people in courts around the world, show that violations of their human rights is often accomplished primarily by separating Indigenous communities from their land.
22
Pollution, for example, represents a form of
Past and ongoing patterns of dispossession can be understood as an outward manifestation of an impoverished understanding of nature and its relationship to humans, that is in direct collision with Indigenous eco-cosmologies. Most Indigenous eco-cosmologies view nature as a living, interconnected system that provides physical, spiritual and cultural sustenance and forms the material context in which relationships within the community are nurtured and sustained.
24
These ideas animate the Indigenous concepts of
The meaning of a good life found in these cosmologies is fundamentally different from Western, individualistic notions of success or prosperity. Rather than being defined by material wealth, personal achievement or consumption, a good life is understood as living in right relationship with the land, with community, with ancestors and with the spirit world. This view is evident in the way Indigenous communities have used their agency to convince courts to interpret the right as a legal basis for challenging dispossession not simply due to its impact on their livelihoods but for the ways in which it prevents them from culture and spiritual practices. 27
While the notion of a good life entails the recognition of the environment's fundamental role in preserving holistic human wellbeing, it does not imply reducing nature merely to ‘environmental resources’ that exist solely to serve human ends. Indigenous worldviews emphasise the intrinsic value of nature, recognising it as a living entity deserving of respect and protection in its own right. 28 Relatedly, they also acknowledge nature's complexity, which eludes full and complete human comprehension and masterly. 29 This view calls for humility in how humans relate to nature, and emphasizes that the relationship between humans and nature is one of interdependence, kinship and reciprocity rather than one where humans assume a position of dominance or mastery. 30
The ideas of nature's intrinsic value, its complexity and interconnectedness with humans serve to deconstruct the legacy of Western epistemologies rooted in anthropocentrism, according to which human beings are conceived of as being separate from nature and imbued with the ability to exercise perfect mastery over nature. Under this rationale nature is construed simply as a repository of resources for human consumption. 31 Moreover, the view underscores the necessity for humility in humanity's dealings with nature and the need to forge pathways for living in harmony with natural systems rather than attempting to dominate or manipulate them. 32 An important implication of this stance is that humans recognise nature as an active, sentient participant in a living web of relationships and thus bear ongoing responsibilities for its care and well-being.
Given the relational understanding of nature within Indigenous worldviews, past and ongoing forms of dispossession constitute a violation of the R2HE because they rest on the belief that humans can dominate nature and reduce it to a mere source of extractable resources or a passive setting for human activity. There are promising signs of a shift away from anthropocentrism and human mastery in how the R2HE has been formulated and interpreted in some legal contexts, not simply as a basis for protecting an entitlement due to humans but also as a basis for obligations to protect nature. For example, some legal systems frame the R2HE to include both as an entitlement held by individuals and as a correlative set of obligations directed towards the state, private entities and the broader community to care for the environment. For example, the South African constitution enshrines the entitlement to a healthy environment and imposes obligations on the state to protect and conserve the environment for present and future generations. 33 Similarly, the Kenyan constitution adopts a similar approach and goes further in imposing reciprocal obligations on ‘everyone’ to pursue environmentally sustainable development. 34 A similar approach is evident in the Constitution of Ecuador, which imposes positive duties on public authorities and private parties to ensure that activities affecting natural systems do not undermine ecosystems or human health. 35
As explained, Indigenous peoples typically describe the significance of land and resources through a relational worldview in which place is not an inert commodity but a living, rights-bearing relative that structures every dimension of collective life. Thus, past and ongoing dispossession can be viewed as a systematic rupture of the reciprocal connection between humans and the non-human. In other words, dispossession is not merely the loss of a resource base but the erosion of the material conditions for collective spiritual, cultural and physical survival. 36 Applied as a lens for construing the R2HE, this idea refutes the notion that rights are merely individual entitlements and insists that they derive from and exist to serve wider socio-ecological webs of reciprocity. This rationale circles back to the idea thathumans owe duties both to one another and to the more-than-human world, and these mutual responsibilities are the very condition for collective flourishing.
Based on this view, it stands to reason that the R2HE carries both an individual and collective dimension. 37 The individual dimension concerns the right's role in safeguarding personal interests, such as protection from environmental harm. The collective dimension recognises that individuals are embedded within collectives, such that their wellbeing is intrinsically linked to the health, security and integrity of the collective rooted in place. 38 Notwithstanding controversies concerning the dual dimension of human rights as both individual and collective in nature, jurisprudence on the R2HE affirms this as its nature. This affirmation has been particularly evident in judgements emanating from the Inter-American Human Rights System. In its 2017 Advisory Opinion, the Inter-American Court stated that the human R2HE has both individual and collective dimensions. Regarding the collective dimension, the Court stated that the right ‘constitutes a universal value that is owed to both present and future generations’. 39 The reasoning of the Inter-American Court resonates with scholarship mapping the nature of the R2HE. For instance, Chalabi conceives of the right first, as an individual entitlement that any person may invoke to protect an individual interest in a healthy environment and second, as a collective entitlement whose protection benefits every member of a collective. 40 The collective dimension of the R2HE becomes especially significant when one considers that most cases involving the separation of Indigenous peoples from their lands result in harm not only to individuals, but to communities as a whole. Specifically, these violations disrupt communal identities and cohesion, governance structures, cultural continuity and the shared relationship to the land.
Historically, the dislocation of Indigenous people from their land was enabled by a dehumanising logic, which construed Indigenous peoples not as sovereign actors imbued with agency, but as part of the natural world akin to animals, forests and rivers that needed to be controlled, tamed or extracted from. 41 This denial of agency persists today, as evidenced by the frequent refusal to recognise Indigenous peoples’ rights to define their relationship with their lands, particularly through the systematic denial of participatory rights. 42 In light of this reality, a meaningful R2HE in the view of Indigenous peoples entails recognising the indispensability of their agency in defining their present and future relationships with their lands and territories through participatory and self-determined processes. This, in turn, calls for the recognition of the indispensable role of knowledge systems, values, processes and strategies that such communities have relied on over time to retain, co-exist, reclaim and reconnect with their land and territories. 43 In practical terms, recognising the agency of Indigenous people means that, at the very least, the right must support meaningful participation in environmental decision-making processes enabled by access to environmental information and the right to access justice. Meaningful decision-making entails more than tokenistic consultation or inclusion in predetermined processes. It requires the creation of genuine opportunities for influence, grounded in respect for Indigenous legal orders, knowledge systems and governance structures.
Positioning Indigenous peoples as central actors in defining present and future relationships with their lands and territories is beneficial in several respects. First, it challenges the state-centric model of environmental governance, which tends to impose top-down regulatory frameworks and prioritise technocratic or market-based solutions over relational, land-based practices rooted in Indigenous worldviews. 44 Second, decision-making processes that draw on Indigenous eco-cosmologies contest deeply embedded colonial assumptions that have historically denied Indigenous peoples their status as sovereign actors. Importantly, this perspective directly refutes Garrett Hardin's ‘tragedy of the commons’ thesis, which argues that state control is necessary to prevent the overuse of shared resources. Hardin's claim fails to recognise the effectiveness of Indigenous governance systems, which are often based on principles of sustainability, intergenerational responsibility and deep respect for the natural world. 45 Finally, recognising Indigenous knowledge systems as valid sources of environmental values and governance contributes to addressing epistemic injustices, which have historically entailed the marginalisation and exclusion of Indigenous ways of knowing in favour of Western scientific paradigms and state-centric approaches to environmental management.
Some recent interpretations of the R2HE recognising Indigenous peoples’ entitlement to free, prior and informed consent (FPIC), access to environmental information, and participation in decision-making processes and access to justice represent an important step toward affirming Indigenous agency. This approach is reflected in the expansion of the R2HE to include procedural elements, such as meaningful participation of Indigenous peoples in environmental decision-making. In
If the ability to retain their connection to land is central to giving meaning to the R2HE for Indigenous peoples, then dispossession constitutes its negation. It severs Indigenous peoples from the land and the cultural and spiritual significance they attach to it, denies them the ability to practice kinship and reciprocity with nature, and undermines both individual and collective well-being. Dispossession also deprives them of the material conditions necessary to sustain and nurture their communal relationships, and it is the direct outcome of the persistent denial of their agency as self-determining peoples. From this perspective, a meaningful R2HE must be rooted in the protection and affirmation of Indigenous peoples’ enduring relationships with their lands and territories. Recognising this intimate connection is essential to challenging the underlying assumptions and practices that have historically enabled, and continue to reproduce, systems of dispossession. These include viewing nature through an anthropocentric lens, as existing solely to fulfil human needs; rejecting the reciprocal obligation humans owe to care for the natural world; assuming human mastery over nature and reinforcing an artificial separation between people and the environment; the failure to recognise land as the material, cultural and spiritual foundation for individual and collective flourishing; and the persistent erasure of Indigenous peoples’ agency as knowledge holders, decision-makers and sovereign actors in environmental governance.
Structuring dispossession as protection: an example of Kenya's environmental law
How does environmental law collide with the R2HE as construed in the preceding section? Using Kenya as a case study, the analysis in this section shows that environmental law has potential to undermine the R2HE as a medium through which approaches that facilitate land alienation are structured and legitimised. To this end the section focuses on environmental laws designed for forestry protection, wildlife conservation and climate change mitigation. The focus on forestry protection, wildlife conservation and climate change mitigation laws is justified by their historical and ongoing role in facilitating state control over Indigenous lands in Kenya. Key approaches identified include provisions related to the establishment of forest reserves, protected wildlife conservation areas, the creation of contractual interests over traditional lands and resources, and the criminalisation of subsistence practices such as grazing or foraging by treating them as trespass.
Forestry conservation law
Historically, the implementation of forestry law in Kenya was used to exclude Indigenous communities from their land. This was done through the creation of forest reserves on land traditionally occupied by Indigenous communities, the implementation of provisions prohibiting trespass, foraging and grazing in the same forests by Indigenous communities, and the imposition of penalties for trespass.
The evolution of colonial forestry law in Kenya began with the introduction of the Ukamba Woods and Forest Regulations of 1897, an early initiative to safeguard forest resources by reserving trees within a five-mile radius of the Nairobi County House and a two-mile zone along the railway. 47 Building upon this initial effort, the East Africa Forestry Regulation of 1902 introduced a more structured legal foundation for forest reserves, restricting activities such as tree cutting, grazing and trespassing without official permits. 48 The East Africa Forestry Regulation went through a series of revisions to respond to threats to forests. Such revisions strengthened the restrictive approaches introduced by the initial law. For example, the 1911 Forest Ordinance revised the 1902 Regulations by clarifying and expanding forest offences to prohibit the majority of activities relating to the exploitation of the Forest without a license. 49 The Forest Amendment Ordinance 1915 formalised the use of forest guards to enforce restrictions, 50 and the 1941 revisions introduced significant reforms, including the designation of nature reserves within forests. 51
At independence, the Forests Act of 1964 replaced the 1941 Ordinance as the principal law protecting forests. It contained prohibitions and penalties similar in substance and effect as those of in the 1941 Ordinance. 52 The 1964 law underwent revisions through the Forests Act of 2005. 53 While it maintained the same restrictions to entry and imposed penalties like the laws that came before it, it also distinguished itself by introducing a decentralised forest governance system. Under this system, communities living near state forests could partner with the Kenya Forestry Service, the state agency responsible for forests, in the management of forests. Under this decentralised framework, communities acting under the umbrella of Community Forest Associations entered into a forest management agreement with the Kenya Forestry Service. 54 Nevertheless, this participatory approach has not effectively devolved decision-making authority or granted adequate access to resources to improve livelihoods. 55
Current forestry law exhibits continuity with the past through provisions that provide a legal pathway for converting Indigenous lands to protected forests and imposing criminal penalties for trespass. Under the current Forests Act of 2022, the two contested forests of Mau and Mt. Elgon are gazetted as public forests. 56 This leaves no legal scope for the Ogiek to lay legal claim on the forests. Moreover, the present Forest Act introduced provisions that could facilitate the dispossession of Indigenous communities from their traditional lands if they are applied without regard to the relationship that such communities have maintained with forests for a long time. Specifically, the Act empowers the Cabinet Secretary to declare any forest as “provisional” if it is deemed mismanaged or neglected, including community-owned forests. 57 This declaration transfers management to the state, allowing it to oversee the forest for up to three years or longer, subject to review. While the Act states that the forest can revert to the owner after rehabilitation, it also allows the Board to impose ongoing conditions for compliance, potentially eroding the community's control over the land. 58
Similarly, the Forest Act gives power to the Cabinet Secretary to declare any forest, including those on community or private land, as a nature reserve, to conserve forestland of particular environmental, cultural, scientific or other special significance, or to preserve biological diversity and threatened or endangered species. 59 While compensation is mandated for private or community lands designated as natural reserves, it overlooks Indigenous land rights’ deeper, intangible dimensions. For many Indigenous communities, land is not merely an economic asset but a repository of spiritual, cultural and ancestral connections that inform identity and communal wellbeing.
Like its precedent, the current Forest Act outlines a legal framework for participatory forest management through joint forest management agreements. 60 Joint forest management agreements allow forest owners to collaborate with other actors in pursuit of sustainable resource use, typically through conservation measures and compensatory provisions for any resulting loss of access. 61 Although such frameworks ostensibly encourage shared responsibility, they pose significant challenges in the context of community forests, where the power dynamics often favour external entities. In practice, communities are likely to engage with private investors, NGOs or government agencies possessing greater financial resources, legal expertise and political influence. This imbalance can undermine local autonomy, compelling community members to accept terms that reflect outsiders’ interests rather than their own established traditions and livelihoods. This scenario runs counter to the intent articulated in section 52 of the Act, which recognises and protects the rights of forest communities to maintain traditional uses of forest resources. Absent clear safeguards, joint management agreements risk eroding theserights, particularly when they introduce conditions or limitations that conflict with longstanding local practices in relation to the use and care of forests.
The Forestry Act maintains the prohibitions established under colonial and postcolonial era legislation, declaring it an offence to enter into protected forests or engage in various livelihood activities within forests, including collecting honey or beeswax, grazing and harvesting forest produce, without express permission. 62 Although such measures are formally justified as necessary for conservation, they reflect only one facet of the broader reality. For Indigenous communities, whose survival and cultural identity hinge on uninterrupted access to ancestral territories, these “fortress forest” policies impose disproportionate costs. 63 The loss of traditional livelihoods, coupled with restricted engagement in customary practices, underscores how contemporary forestry law disregards the rights of those who depend on forest resources for their material needs and cultural continuity.
Wildlife conservation law
Like forestry conservation law, wildlife conservation law structured the dispossession and exclusion of Indigenous people from their land through the creation of protected areas for endangered wildlife, prohibition of trespass into protected areas, banning other activities that Indigenous people have historically engaged in to support their livelihoods and, spiritual and cultural practices and, imposition of penalties trespass and other offences. Conservation efforts in colonial Kenya were driven by a combination of actors which promoted the strict separation of wildlife from human populations through rigid territorial demarcation. 64 Ideologically, the colonial administration operated on the assumption that Indigenous communities lacked sophisticated ecological knowledge to govern the environment effectively and that their traditional practices were environmentally destructive. 65 Economically, conservation policies were driven by the profit potential of big-game hunting and tourism. 66 This dual motivation led to the introduction of laws that restricted Indigenous access to hunting grounds imposed licensing requirements favouring European sportsmen and justified the creation of exclusive game reserves. 67 In addition to ideological assumptions and economic interests, the need to secure wildlife for sport-hunting drove colonial wildlife policies, 68 and as an expression of masculinity and global dominance. 69
Initial steps to protect wildlife in Kenya began when the territory was declared a British protectorate in 1895. As a protectorate, Kenya's natural resources, including wildlife, forests and land, came under the control of the British government. Early conservation efforts were in the form of initial regulations on game reserves. Early examples include the establishment of the Southern Game Reserve in 1899 and the Northern Game Reserve in 1900. 70 These reserves were created in response to concerns over the rapid decimation of wildlife, driven by unregulated hunting by European settlers and the killing of animals that were believed to pose a threat to colonial farmlands. The worsening plight of wildlife as a result of hunting and killings aimed to protect colonial farmland was a primary motivation for the conclusion of the 1900 Convention for the Preservation of Wild Animals, Birds, and Fish in Africa (London Convention of 1900). The London Convention was signed by European colonial powers in an attempt to standardise wildlife protection measures across African colonies. The Convention listed species for which hunting was prohibited, outlined regulations for others, and encouraged the establishment of game reserves. 71 However, it failed to come into force as it was never fully ratified.
More than three decades later, the 1933 Convention Relative to the Preservation of Fauna and Flora in Their Natural State (London Convention of 1933) established formal conservation policies, including stricter hunting regulations and the institutionalisation of national parks and reserves. 72 Unlike its predecessor, the 1933 Convention received the requisite ratifications and remained in force until it was superseded by the African Convention on the Conservation of Nature and Natural Resources in 1968. The 1933 Convention directly influenced colonial conservation policies, providing impetus for the adoption of the National Parks Ordinance in 1945 and the Wildlife Protection Ordinance of 1951 to strengthen wildlife protection. 73
Rigid territorial demarcation persisted after independence as the postcolonial government retained national parks created during the colonial era and created more. As with forest reserves, the colonial and postcolonial governments utilised penalties to prohibit trespassing, hunting and foraging in the national parks and game reserves. 74 The key legislation guiding these and other conservation efforts was the Wildlife (Conservation and Management) Act of 1989. In addition to creating national parks and game reserves, the Act imposed restrictions on hunting, foraging and farming. 75 Though the postcolonial conservation efforts experienced a paradigm shift through an approach that allowed communities to participate in the management of national reserves, participation was and still remains marred by disruption by political actors seeking to secure access for patronage. 76
The approach used by the colonial and postcolonial governments has persisted to the present and is well congealed within the current Wildlife Conservation Act (2013). The unbroken continuum with the past is evident in the fact that the current Act continues and bolsters conservation by closure through protected areas (national parks, conservancies and reserves), the creation of new forms of claims over land in the form of easements, prohibitions against listed activities and penalties. Moreover, the Act confers power on the state to declare protected areas on private, public or community land. Protected areas can be national parks, marine protected areas, wetlands or national reserves. 77 Another form of protection recognised in the Act is through the creation of conservancies, which may be established by an individual landowner, a body corporate, a group of owners or a community when they set aside land for the purpose of establishing a conservancy and comply with formal requirements outlined in the Act.
Additionally, the Act recognised conservation easements as an addition approach to conservation. Conservation easements can be created through voluntary private arrangements or contracts between a private landowner and a party interested in engaging in wildlife conservation. Conservation easements may also be created by virtue of conservation orders issued upon application to the Environment and Land Court. 78 Voluntary private agreements, essentially contractual relationships between private or community landowners and individuals or entities seeking to establish wildlife sanctuaries or conservancies, have become an increasingly popular mechanism for wildlife conservation in Kenya. A notable example is the conservancies operating under the Northern Rangelands Trust, which are formed through private arrangements between predominantly indigenous pastoralist communities and private entities aiming to provide tourism services. Whereas no official tally is kept on the number of such arrangements, they have nonetheless been notoriously implicated in the dispossession of land and violations of the human rights of Indigenous peoples, triggering critical media reports and litigation.
Easements may be imposed by the Environment and Land Court on land owned by another, subject to compensation commensurate with the lost value of the land's use. 79 The provisions mirror the Environmental Management and Co-ordination Act's provisions on the creation of environmental protection easements. 80 Notably, Indigenous communities whose land is encumbered by conservation easements are entitled to compensation for the lost use value since they retain the underlying title. However, this arrangement can prove detrimental as a compensation model based on lost economic use may ignore the intangible cultural and spiritual value associated with the land.
A key characteristic of protected areas is that they use a conservation-by-enclosure approach that entails strict or absolute prohibitions on human activity. To ensure compliance with such restrictions, the Wildlife Conservation Act outlines a raft of offences that attract penalties or civil liability. These include prohibitions against trespass, subsistence hunting and foraging within protected areas. 81 Notably, the Act explicitly prohibits subsistence hunting despite the longstanding importance of such practices for the livelihoods of many rural communities. Although the legislation does provide a mechanism for individuals to apply for consumptive wildlife utilisation licences, these permissions are subject to annual renewals. 82 Moreover, hunting for sustenance is excluded from the list of activities that qualify as consumptive wildlife utilisation, 83 a restriction that appears to favour private game ranchers.
Climate change law
The design and implementation of climate change law have been instrumental in facilitating the violation of Indigenous peoples’ R2HE by structuring legal ways of dispossession and exclusion. Kenya's climate change law accomplishes this by creating new contractual interests over indigenous lands. Community development agreements are the main avenue through which contractual claims over Indigenous peoples′ land can be made. 84 While not defined in the Climate Change Act, these agreements are usually concluded between the communities on whose land climate-related projects are established and private entities or non-governmental organisations engaged in the production of carbon credits. The credits generated are then marketed mainly to companies and governments to offset their carbon emissions.
Community development agreements should be viewed in the broader context of efforts to combat climate change. In Kenya, efforts to enhance climate action are codified in the Climate Change Act, adopted in 2016. The Climate Change Act was amended in 2022 by inserting,
All land-based projects are to be pursued under a community development agreement concluded with the community on whose land the project is based. 87 Community development agreements should also be understood in light of other contractual agreements that modify, guide or limit land use. Many of these projects are situated within community conservancies, a form of land use for wildlife conservation recognised under the Wildlife Conservation Act. Conservancies are typically created through lease agreements, which allow communities to dedicate a portion of their land for wildlife conservation, often aimed at generating tourism revenue. At the same time, community development agreements govern land-based climate mitigation projects primarily to generate carbon projects. 88 As such, Indigenous land use is influenced by multiple contractual obligations.
Community development agreements may be viewed as a transparent mechanism through which communities can negotiate favourable terms, ensuring they benefit from carbon credit initiatives. This is because the law outlines safeguards that are meant to protect the interests of parties engaged in carbon mitigation projects. A review of Kenya's climate change law reveals that the law outlines several safeguards that, if respected, would shield communities from negative effects that may arise from carbon projects. Under the Climate Change Act, carbon projects must undergo an environmental and social impact assessment, while redd+ projects must undergo a safeguard standards assessment. 89 Ongoing projects are to undergo an environmental audit. 90
The requirement for each carbon project to undergo an environmental and social impact assessment, with ongoing projects subject to environmental audits, carries significant implications for the protection of indigenous peoples. First, it ensures that potential adverse impacts on Indigenous communities, including disruptions to traditional livelihoods, cultural sites and local ecosystems, are systematically identified before projects commence. This procedural safeguard enables Indigenous communities to be consulted and to express concerns regarding their land and resource management practices. Second, the mandate for ongoing environmental audits provides a mechanism for continuous monitoring of the project's impact. Such audits help to ensure that any unforeseen or cumulative environmental and social harms are detected and addressed in a timely manner, thereby reinforcing accountability on the part of project proponents.
Proposed carbon projects must also specify the anticipated environmental, economic and social benefits. 91 The community development agreement must aim to improve the environmental, social and cultural wellbeing of the communities around the project and provide information on project stakeholders, benefit-sharing, procedures of stakeholder engagement, manner of review and amendment and dispute settling. 92 The Climate Change Act provides that a project proponent of a carbon project who is responsible for any damage to the environment or to human health shall be liable for the damage caused. 93 Given the history of environmental displacement linked to carbon projects, the liability framework provides Indigenous communities with a potential legal recourse in cases where such initiatives harm their land, water sources or health. It also serves as a deterrent against reckless or exploitative practices by project developers.
The provisions of the Act are bolstered by the Climate Change (Carbon Markets) Regulations. Among other portions, the Regulations codify the Core Carbon Principles, a set of standards established by the Integrity Council for the Voluntary Carbon Market to ensure that carbon credits are credible, transparent and contribute to real climate benefits. 94
Notwithstanding these safeguards, community development agreements raise several critical issues that merit pause. Community development agreements are contractual agreements that create new interests over land. Upholding the terms of such arrangements on Indigenous peoples’ land necessitates that communities refrain from grazing on substantial portions of their land in favour of adopting grazing practices that are deemed sustainable. 95 This requirement may result in a double loss: communities lose access to significant parts of their traditional grazing lands and fail to realise the full benefits of adopting restrictive grazing practices. 96 These possibilities become ever more glaring in light of the delays in formally recognising communal property rights by implementing the Community Land Act. 97 There is also the question of power asymmetries that characterise the negotiation of community development agreements. Many Indigenous communities often lack the legal, financial and technical capacity to engage in negotiations on an equal footing. 98 Project proponents, typically well-resourced private entities or conservation organisations, are often in a stronger position to influence the terms of these agreements. 99 This imbalance raises concerns about whether communities can exercise genuine FPIC in these negotiations. 100
Given this scenario, carbon projects carried out on Indigenous lands in the Global South are a form of ‘slow violence’, meaning the gradual, often imperceptible destruction of vulnerable ecosystems and marginalised communities. 101 Poor populations, in particular, may be forced to enter carbon offset arrangements out of economic desperation because they lack alternative sources of sustainable livelihoods. 102 Carbon credits are described as ‘green grabbing’, the appropriation of land to meet environmental goals. 103 A related term, ‘climate grabbing’ has emerged to highlight the expropriation of land and resources specifically for climate change mitigation. 104 One significant outcome of ‘green grabbing’ or ‘climate grabbing’ is the intensification of food insecurity, as land once central to sustaining livelihoods is repurposed for carbon-focused initiatives.
Environmental law, lawful green grabs and the negation of the R2HE: experiences of dispossession for Indigenous people in Kenya
So far, the analysis has demonstrated how environmental law can structure approaches that, whether intentionally or not, facilitate land alienation. Such outcomes directly undermine the R2HE for these communities, a right that, as previously discussed, is animated by the protection of their intimate connection to land. In Kenya, this is particularly evident in the way conservation laws, climate change policies and biodiversity protection measures are operationalised. This claim is not purely theoretical but is borne out in the experiences of Indigenous peoples’ struggles to retain access to their lands in the face of competition from environmental protection projects. Two case studies from Kenya are offered to demonstrate this point. The first case study examines the Ogiek community's longstanding struggle to maintain access to their ancestral lands in the Mt. Elgon and Mau Forests, in opposition to forestry and wildlife conservation projects framed as efforts to enforce environmental law. The second case study explores the ongoing efforts of pastoralist communities in Northern and North-Eastern Kenya to retain access to their lands amid increasing competition driven by carbon mitigation initiatives, similarly, justified as enforcement of environmental law.
Forestry and wildlife conservation and the eviction of the Ogiek community from Eastern Mau and Mt Elgon
The Ogiek are a hunter-gatherer community indigenous to Kenya. According to Kimaiyo, they have lived in East Africa since 1000AD. 105 The Ogiek claim the Eastern parts of Mau Forest in Kenya's Rift Valley and in the forests around Mt. Elgon as their ancestral home. The Mau Forest is the biggest and most important closed canopy forest in Kenya and the East African region, providing critical ecosystem services for Kenya and the entire region. Mt. Elgon is a transboundary ecosystem that straddles the border of Uganda and Kenya. It is also a water catchment for Lake Victoria and Lake Turkana in Kenya and Lake Kyoga in Uganda and is recognised as one of the world's six biodiversity hotspots.
The Ogiek community has faced evictions from these locations as early as the late 1800s and has continued to the present.
106
From then to the present, environmental law has played a critical role in facilitating and legitimising these evictions. During colonial times, evictions were structured through colonial land, forestry and wildlife conservation laws.
107
Though evictions from the Mau Forest started as early as 1911, the Ogiek's exclusion from this Forest was cemented in 1932, when large portions of the Mau Forest were gazetted as Crown Land Forest reserve as part of operationalising the Forest Ordinance of the same year.
108
The Forest was converted to a National Reserve in 1945 and officially gazetted as a forest reserve in 1954. In further efforts to protect the forest, part of the Mau Forest was excised in the early 90s and 2001
109
ostensibly to resettle the Ogiek in a permanent location and reduce the possibility that they would need to go into the forest to hunt, forage or collect biomass for energy. This excision was accomplished in accordance with powers given to the Minister for Environment and Natural Resources under the Forest Act
Concern for the forest's survival continued to spur both local and international outrage due to worsening environmental degradation as a result of deforestation, irregular and ill-planned settlements, and conversion to agricultural production. In response, the government set up the Mau Special Task Force in 2008 with the mandate to investigate the state of the forest and make proposals on how the forest could be managed, how unplanned settlements could be controlled and steps necessary for the restoration of ecosystems. 112 One of the Task Force's recommendations was that the Ogiek, who had not been settled in land earlier set aside for this purpose, be resettled in areas that do not count as water catchment areas. 113 A similar recommendation was made in the 2004 Report of the Land Commission of Inquiry into the Illegal or Irregular Allocation of Land, commonly known as the Ndung’u Report, after its chairperson, Paul Ndung’u. 114
In late 2023, new evictions of the Ogiek from the Mau Forest complex were reportedly carried out to make way for carbon credit projects. Although the government has thus far not explicitly acknowledged any link between these evictions and carbon initiatives, and would be unlikely to do so, there are compelling reasons to believe the two are connected. By the time of the 2023 evictions, Kenya's carbon regulatory framework had developed to include the 2016 Climate Change Act and international instruments that provide a legal framework for carbon markets. Moreover, Kenya's’ participation in multiple initiatives at the regional and international levels to enhance its carbon market 115 demonstrates a clear commitment to scaling up carbon offset projects, which may inadvertently or deliberately contribute to the displacement of communities such as the Ogiek.
In numerous cases initiated by the Ogiek in domestic courts to contest the legality of their evictions and the redistribution of land designated for their settlement to outsiders, the government has consistently argued that the Eastern Mau Forest is a gazetted forest under forestry legislation rather than ancestral land belonging to the Ogiek community. 116 Furthermore, the government maintained that members of the Ogiek community residing in parts of the forest are occupying the land illegally as squatters. 117 In its 2017 judgement, the African Court on Human and Peoples’ Rights (the African Court) found that the Kenyan government had violated the Ogiek's rights by repeatedly evicting them from their ancestral lands in the Mau Forest without adequate justification since their presence in the Forest and their way of life did not pose a threat of harm to the ecological wellbeing of the Forest ecosystem or the water towers. 118
While forestry law is the main legal framework legitimising the dispossession of the Ogiek from the Mau Forest, wildlife conservation law played and continues to play a significant role in excluding the Ogiek from Mt. Elgon. The lower parts of Mt. Elgon were declared Crown land to make room for white highlands in the 1890s. Subsequently, Mt. Elgon was gazetted on 30 April 1932, as Crown Forest under Proclamation No 44, and its management was brought under the management of the Kenya Forest Service. 119 While land laws aimed to secure the most fertile land for European farming and settlement, forestry and wildlife conservation laws aimed to install fortress conservation for the benefit of settlers. After independence, the postcolonial government retained the colonial conservation policies of exclusion, demonstrating a clear continuity between the environmental policies of the colonial and post-independence administrations. One notable conservation project was the creation of the Mount Elgon National Park in 1968, leading to further evictions and loss of land. 120 In 2000, the government created Chepkitale National Reserve within Mt Elgon Forest Reserve to expand conservation efforts further. 121
Currently, conservation initiatives in the Mau Forest and Mt. Elgon are governed by existing forest and wildlife conservation laws, which impose strict land use and resource access regulations. Consequently, these areas are subject to absolute or conditional prohibitions against trespassing, foraging and hunting as dictated by the Forest Act and Wildlife Conservation Act. While these legal restrictions are intended to protect biodiversity and promote sustainable conservation, they also have profound implications for Indigenous communities, such as the Ogiek, whose traditional way of life depends on access to these forests.
One of the defining features of the series of evictions faced by the Ogiek has been the consistent lack of meaningful engagement, transparency or opportunities for the Ogiek to participate in decisions that fundamentally affect their livelihoods, culture and spiritual well-being. Instead, state authorities have invoked environmental laws concerning forest reserves and water catchment protection as a legal basis for evictions, disregarding the Ogiek's long-established and sustainable relationship with these ecosystems. 122 The use of environmental law, when paired with the denial of Indigenous agency constitutes a clear violation of the R2HE.
Climate mitigation and the Northern Kenya Grassland Project
The Northern Kenya Grasslands Project is a soil carbon project located in North-Eastern and Northern Kenya. These lands are the traditional home of the Maasai, Samburu, Burana and Turkana, pastoralist communities who rely on cattle to support their livelihoods. The Northern Kenya Grasslands Project operates in conservancies organised under the auspices of the NRT, a non-governmental community conservancy membership organisation. According to documents submitted in the Verra Registry, 123 the project began in 2011 and is supposed to run for 30 years. 124 The Project occupies 14 of the 43 conservancies, roughly half of the 4 million hectares set aside for conservancies. 125
Kenyan conservancies have become preferred sites for nature-based solutions to climate change and biodiversity loss, serving both as locations for wildlife conservation and as mechanisms for climate mitigation. A significant portion of the land on which these conservancies and, by extension, the soil carbon project is situated is classified as community land. Community land is a category of land ownership in Kenya regulated under the Community Land Act of 2016. Much of the community land in Kenya is predominantly occupied by indigenous groups who have historically maintained customary ties to these territories and practice pastoralism as a way of life.
The Wildlife Conservation Act and the Climate Change Act have been used to achieve the twin goals of wildlife conservation and climate mitigation. The process through which communities lose land has been described as dispossession by text. The notion of dispossession by text has been used to denote the use of leases to separate Indigenous peoples from their land. 126 The formation of such leases, as a new form of legal claims over Indigenous lands, is given legal recognition under the Wildlife Conservation Act's provisions on the creation of conservancies and easements and the Climate Change Act's provisions on the formation of community development agreements.
In relation to wildlife conservation, the NRT has long adopted the conversation-by-closure approach, which is carried out in cooperation with local communities and the Kenya Wildlife Service. The creation of enclosed conservation areas entails restricting or prohibiting livestock grazing, human settlement and resource extraction within conservancies. 127 Enforcement of boundaries requires the deployment of rangers to patrol and safeguard conservation zones. As highlighted in section ‘Wildlife conservation law’, these restrictions are imposed in terms of relevant provisions of the Wildlife Conservation Act.
Criticism directed at the project raises questions about its ethical and practical soundness. Among the most pressing concerns is the assertion that conservancies constitute a covert mechanism for dispossessing Indigenous populations of their ancestral lands and reshaping pastoral livelihoods in ways that threaten their sustainability. 128 This critique is reinforced by the argument that the process of setting aside land for conservation often lacks genuine, informed community consent, as information is purportedly shared primarily with those already aligned with the NRT. 129
The Climate Change Act and accompanying Climate Change (Carbon Markets) Regulations constitute the main regulatory framework applicable to NRT's carbon sequestration project. The Northern Kenya Grasslands Project's approach to generating carbon credits entails modifying traditional livestock grazing patterns, adopting planned grazing practices and restricting access to areas set aside for that purpose. 130 The project has been described as a multiple win arrangement, whose benefits include the protection of biodiversity, generation of tourism income for the government and improved security and income for communities. 131
The assumption underlying the carbon project, that altering pastoral practices will reliably enhance carbon sequestration, has been challenged because of a lack of robust empirical evidence. 132 While the project generates financial benefits for the communities, concerns regarding the uneven distribution of benefits, where much of the financial gain is perceived to accrue to the NRT and its close affiliates, intensify have become a source of conflict with considerable potential to escalate. 133 The security benefits touted by NRT have been put into question by reports of the use of violence in cases where pastoralists are accused of trespassing on conservancy land. 134 It is also alleged that NRT has contributed to heightened community tensions by supporting one group against the other. 135
While NRT has refuted these allegations, 136 they are part of the factual basis on which litigation challenging the legitimacy of the project was initiated by members of the community. In the Osman case, members of Merti sub-county and the Chari and Cherab wards in Isiolo County brought a constitutional petition against NRT and its collaborators. 137 The petition challenged the establishment of conservancies for wildlife conservation and the generation of carbon credits, arguing that the process did not comply with the statutory requirement for public participation. 138 In this context, the petition claimed that the absence of community engagement risked the extinction of significant burial and cultural sites. 139 Furthermore, it is contended that the establishment of these conservancies without plans for relocating affected communities or securing alternative grazing areas amounted to dispossession. 140 The petition also alleged that NRT and its collaborators employed violence to suppress opposition, resulting in injuries and loss of life. 141 The Environment and Land Court found in favour of the petitioners. Among the remedies issued were permanent injunctions directing the cessation of activities aimed at establishing and operating conservancies. 142
This analysis shows that, just like the Ogiek, Northern Kenyan communities’ R2HE has been, and continues to be, violated through dispossession facilitated by the application of environmental laws for wildlife conservation and climate mitigation, coupled with the denial of meaningful opportunities to participate in decisions affecting their lands and livelihoods.
Concluding reflections
So far, the analysis frames dispossession enabled by environmental law as a violation of the R2HE for Indigenous peoples. It is argued that from a perspective informed by Indigenous peoples′ ways of existing with the natural world, a meaningful R2HE is fundamentally about retaining and protecting the deep and enduring connection they have to their lands. The argument is supported by Kenya as a case study. In this context, environmental laws intended to advance forestry protection, wildlife conservation and climate mitigation embed approaches that legitimise the dispossession of Indigenous peoples from their lands in their implementation. To deepen the discussion, two case studies are presented to illustrate the conflict between environmental law and Indigenous peoples’ R2HE: the eviction of the Ogiek community from Eastern Mau and Mt Elgon to create room for forestry and wildlife conservation and the dislocation of Indigenous peoples from their territories in Northeastern Kenya to pave the way for a climate mitigation project named the Northern Kenya Grassland Carbon Project.
Recognizing the dispossession of Indigenous peoples through environmental law as a violation of the R2HE reframes what is often justified as environmental “protection” as a legally and morally problematic practice. These framing challenges the assumption that environmental laws are inherently benign and reveals how they can, in practice, perpetuate structural injustices under the guise of legality. Importantly, framing patterns of dispossession as a violation of a specially construed R2HE complements insights from environmental justice scholarship, which has long decried the role of environmental law in the unfair and unequal distribution of the burden of environmental protection on some groups.
This finding has far-reaching implications for both environmental law and the R2HE. First, they call for a critical reassessment of how environmental law is conceptualised, designed and enforced particularly in contexts where Indigenous peoples’ relationships with land diverge fundamentally from dominant conservation paradigms. To safeguard Indigenous R2HE in a meaningful way, environmental laws must be conceptualised, designed and enforced in a way that recognises Indigenous peoples’ close connection to their lands. The call to re-centre human wellbeing as the objective of concern in the design and implementation of environmental law may strike some as retrogressive given that centring humans as the principal concern for law in general, has been criticised for advancing an anthropocentric regulatory scheme that is linked to many contemporary environmental problems. However, as highlighted earlier, the central critique against anthropocentrism is that it promotes the idea that humans are separate from nature, encouraging the belief that humanity can dominate and manipulate the natural world for its own ends while protecting itself from the consequences of ‘unruly nature’ through technological means. The case for centring Indigenous peoples′ wellbeing through respect to their connection to land addresses a specific blind spot of environmental law, which is its tendency to reflect a form of anthropocentrism that benefits certain interests at the expense of Indigenous rights.
Importantly, these insights resonate beyond Kenya and are relevant to Indigenous struggles in regions where the R2HE is formally recognised. In South America, for example, Indigenous peoples continue to face both
Further, these insights are especially important in contexts where the R2HE is still in development. The European Union is a case in point, where there is growing momentum for the recognition of a stand-alone R2HE. In considering such a development, it is vital to be cognisant of the role that laws may play in rendering the right illusory by making the connection between Indigenous peoples and their land ever more tenuous. This risk is not merely theoretical. The Sámi people, Indigenous to Norway, Finland and Sweden continue to experience
Footnotes
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.