Scientific evidence has established that athropogenic carbon pollution and climate change will have a catastrophic and devastating impact on indigenous people.1 See generally Jan Salick and Anja Byg, eds, Indigenous Peoples and Climate Change (2007), http://www.tyndall.ac.uk/publications/Indigenouspeoples.pdf (accessed 25 May 2010); Mirjam Macchi, with Gonzalo Oviedo, Sarah Gotheil, Katharine Cross, Agni Boedhihartono, Caterina Wolfangel, Matthew Howell, Indigenous and Traditional Peoples and Climate Change: Issues Paper (2008), http://cmsdata.iucn.org/downloads/indigenous_peoples_climate_change.pdf (accessed 25 May 2010); James J. McCarthy, Osvaldo F. Canziani, Neil A. Leary, David J. Dokken, Kasey S. White, eds, Climate Change 2001: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change (2001), http://www.ipcc.ch/ipccreports/tar/wg2/index.php?idp=0 (accessed 25 May 2010). Sadly, many of humanity's oldest people face the loss of their traditional homelands and the extinction of their people as early as 2050,2 See generally, the Executive Summary, ‘Report of the Indigenous Peoples’ Global Summit on Climate Change' (Indigenous Peoples' Global Summit on Climate Change, Anchorage, Alaska, 20–24 April 2009), 8–11. which represents one of the greatest losses and tragedies to the human family and one of the most serious crimes in human history. The aim of this article is to therefore critically examine the impact of climate change on indigenous people and to assess the legal rights available to those communities to seek redress. Part 1 of the paper shall examine the catastrophic and devastating impact of climate change on indigenous people. Part 2 of the article shall provide a survey of the most recent legal decisions at a national, regional and international level and provide an analysis of the emerging academic commentary in the field. Part 3 of the article shall critically examine the major historical, philosophical and institutional limitations of the Western juridical tradition to protect and uphold the rights of indigenous people. As such, the focus of the paper is strictly on litigation and it does not engage with the vitally important issues of policy, mitigation and adaptation, from which, in any case, indigenous people have been largely excluded.3 Paul Havemann, ‘Ignoring the Mercury in the Climate Change Barometer: Denying Indigenous Peoples’ Rights', Australian Indigenous Law Review 13, no. 1 (2009): 2–26; Karen Bubna-Litic, ‘Climate Change Impacts on the Poor – A Case Study of Australia's Indigenous Population and the Impact of Australia's Response on this Population’, IUCN Academy of Environmental Law Series, (forthcoming 2011). While there have been positive developments in case law, the literature reveals that climate change litigation offers little hope for indigenous people. The article will conclude by arguing that current domestic and international legal systems as presently constructed are incapable of protecting the unique rights of indigenous people and culminates in a call for the establishment of an International Court for Human Rights and an International Court for the Environment to prevent the destruction of the traditional homelands of indigenous people and the extinction of humanity's oldest people.
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Jay Williams (2011) studied this question.