Logging and Indigenous Peoples' Well-Being: An Overview of the Relevant International Human Rights Jurisprudence

HIGHLIGHTS Logging activities that occur in Indigenous peoples' traditional territories can have significant and wide-ranging effects on Indigenous peoples' rights, including well-being, cultural, land and participation rights. Preventing impacts on Indigenous peoples' well-being requires respect for Indigenous peoples' right to their lands and resources in the first instance. International human rights jurisprudence recognizes that respect for participation rights is an important safeguard to ensure protection of other rights of Indigenous peoples. Respect for Indigenous peoples' participation rights entails undertaking the following before commencing activities such as logging in Indigenous peoples' lands: conducting environmental and social impact assessments; engaging in consultations with the affected Indigenous peoples with the aim of obtaining Free, Prior, and Informed Consent; and agreeing on benefit sharing, compensation, prevention and mitigation measures. Although these requirements are well-established under international human rights law, many States have yet to comply with their treaty obligations, and in practice there is both limited incorporation of protections for Indigenous peoples' rights into national legislation and improper implementation of these requirements by States and non-State actors. SUMMARY Logging activities worldwide occur on lands that are already inhabited and used by Indigenous peoples and other local communities and often cause negative impacts on those communities. International human rights law provides one framework within which to understand these impacts. In particular, a discrete body of rights within international human rights law pertain to Indigenous peoples. Encroachments on Indigenous lands, such as through logging or other forestry operations, often run up against the full spectrum of Indigenous peoples' rights, all of which are interdependent and interconnected. Numerous human rights bodies, including the United Nations treaty bodies and regional human rights courts, have addressed Indigenous rights in the context of logging and other extractive activities. This article reviews existing jurisprudence elaborating the scope of these rights and explains how respect for land and participation rights can help prevent impacts on other rights. International human rights jurisprudence outlines three steps as core components of Indigenous peoples' participation rights and as safeguards to protect other rights: conduct environmental and social impact assessments; engage in consultations with the affected Indigenous peoples with the aim of obtaining free, prior, and informed consent; and agree on benefit sharing, compensation, prevention, and mitigation measures with the affected Indigenous peoples. However, these requirements, and respect for Indigenous peoples' rights more broadly, remain to be effectively implemented and observed in practice. L'exploitation du bois s'effectue à travers le monde sur des terres préalablement habitées et utilisées par des peuples indigènes et d'autres communautés locales, et résultent souvent en des impacts négatifs qui affectent ces communautés. La loi internationale des droits de l'homme fournit un cadre à l'intérieur duquel ces impacts peuvent être compris. Un groupe discret de droits au sein des droits de l'homme internationaux concerne en particulier les peuplades indigènes. Les débordements sur leurs terres, telles que la coupe du bois ou d'autres opérations forestières vont souvent à l'encontre du spectre complet des droits indigènes, ces derniers étant tous interdépendants et interconnectés. Plusieurs corps des droits de l'homme, incluant des corps de traités et des cours régionales de droits de l'homme des Nations Unies, ont pris en compte les droits indigènes dans le contexte de la coupe du bois et d'autres activités d'extraction. Cet article examine la jurisprudence existante élaborant la portée de ces droits, et explique comment le respect pour la terre et les droits de participation peuvent aider à prévenir l'impact sur d'autres droits. La jurisprudence internationale des droits de l'homme dresse trois étapes, identifiées comme ingrédients-clé des droits des indigènes à la participation et comme des assurances pour protéger d'autres droits, mener des évaluations environnementales et d'impact social, s'engager dans des consultations avec les peuples indigènes touchés, visant à obtenir un consentement préalable libre et informé, et s'accorder sur un partage des bénéfices, des compensations, des préventions et des mesures d'atténuation avec les populations indigènes impactées. En todo el mundo, las actividades de tala se realizan a menudo en tierras que ya están habitadas y son utilizadas por pueblos indígenas y otras comunidades locales, y por ello a menudo causan impactos negativos en esas comunidades. El derecho internacional de los derechos humanos ofrece un marco con el que entender estos impactos. En particular, una serie de derechos dentro de la legislación internacional de derechos humanos se refiere a los pueblos indígenas, y a la ocupación de tierras indígenas, como por ejemplo a través de la tala u otras operaciones forestales, y a menudo chocan con el espectro completo de derechos de los pueblos indígenas, todos los cuales son interdependientes y están interconectados. Numerosos organismos de derechos humanos, incluidos los órganos creados en virtud de tratados de las Naciones Unidas y los tribunales regionales de derechos humanos, han abordado los derechos de los indígenas en el contexto de la explotación forestal y otras actividades extractivas. Este artículo revisa la jurisprudencia existente que desarrolla el alcance de estos derechos y explica cómo el respeto a los derechos sobre la tierra y a la participación puede ayudar a prevenir impactos en otros derechos. La jurisprudencia internacional en materia de derechos humanos señala tres pasos como componentes básicos de los derechos de participación de los pueblos indígenas y como salvaguardias para proteger otros derechos: realizar evaluaciones de impacto ambiental y social; realizar consultas con los pueblos indígenas afectados, con el objetivo de obtener su consentimiento libre, previo e informado; y acordar la distribución de beneficios, la compensación, la prevención y las medidas de mitigación con los pueblos indígenas afectados.


INTRODUCTION
Logging concessions -along with the lands granted for mining, oil and gas, and agricultural concessions -are in many cases already inhabited by people 1 . This situation has led to a recurring pattern in which legal logging and other extractive activities, in addition to illegal activities, have had negative impacts on forest inhabitants, including Indigenous peoples. Documented impacts include displacement, destruction or other loss of housing, restricted access to and decreased availability of food and medicinal resources, air and water pollution, decreases in nutritional value of foods, loss of cultural heritage, and other cultural infringements (FPP 2018, ACHPR 2017, IACHR 2016, TMP 2016. Human rights law provides a useful framework for understanding some of these impacts and how they can be prevented. There is, in particular, a considerable body of human rights law that governs the rights of Indigenous peoples. This article will focus on how logging affects the rights of Indigenous peoples, and the guidance that jurisprudence on Indigenous rights can provide for how to prevent these impacts. 2 It will provide an overview of the scope of Indigenous peoples' rights as articulated by three United Nations human rights treaty bodies (the Human Rights Committee (HRC), the Committee on Economic, Social, and Cultural Rights (CESCR), and the Committee on the Elimination of Racial Discrimination (CERD)) and two regional human rights courts (the Inter-American Court of Human Rights and the African Court on Human and Peoples' Rights) (see Table 1). It concludes with a discussion on what this jurisprudence means, and what States and commercial logging companies should do to respect Indigenous peoples' rights and prevent negative impacts on indigenous peoples' well-being.

INDIGENOUS PEOPLES' RIGHTS AFFECTED BY LOGGING ACTIVITIES
Logging activities occurring on Indigenous peoples' traditional lands have had significant negative impacts on Indigenous peoples, some of which arise from conflicts between loggers and community members. Indigenous human rights defenders have faced threats, intimidation, violence, and death for seeking to defend their land and environmental rights from commercial actors, including those in the logging sector (Global Witness 2020, SRHRD 2016). Indigenous peoples' lives and living conditions can be negatively impacted when they are resettled or otherwise displaced as a result of development or other activities. Lack of access to their traditional lands can result in deprivation of Indigenous peoples' means of subsistence, clean water, and traditional medicines (IACtHR 2005, IACtHR 2006, IACtHR 2010, substandard housing in urban centres, and poor health outcomes as a result of lack of access to forest-based food resources and livelihoods (SRAH 2018, SRM 2014.
Further impacts can arise from the effects of logging activities on the surrounding environment including pollution of water used by the communities, which can prevent Indigenous peoples from using their rivers for fishing and drinking and lead to negative health outcomes (SRRH 2019). More generally, the cutting down of forests can impede the ability of Indigenous peoples to engage in their traditional subsistence lifestyles and cultural practices, including hunting, fishing, farming and small-scale mining (CERD 2017a, CERD 2016, CERD 2018a.
Many of these negative impacts can be described as violations of various rights of Indigenous peoples which will be discussed in more detail below. Human rights are defined in international treaties, which are binding upon the States that have ratified them, and elaborated upon in the decisions and recommendations of the courts and committees that monitor the implementation of those treaties. In addition to these bodies, the UN Human Rights Council has appointed special procedures, including special rapporteurs and independent experts, with the mandates to report and advise on particular human rights issues. The reports of these special mandate holders supplement the jurisprudence of the courts and treaty bodies and help shape the development of international human rights norms.
The distinct characteristics of Indigenous peoples and decades of advocacy have given rise to a discrete body of human rights law governing their rights. This body of law includes the ILO Convention No. 169, the only international treaty specifically on the topic of Indigenous peoples' rights; the UN Declaration on the Rights of Indigenous Peoples, a non-binding declaration which reflects a general agreement by States that Indigenous peoples have the rights set out therein; binding decisions and non-binding concluding observations and recommendations by UN human rights treaty bodies; binding decisions by regional human rights courts as well as non-binding recommendations by regional human rights commissions; and non-binding reports by UN special mandate holders. While formal decisions of these human rights bodies only bind States, these bodies have commented on businesses' responsibility to respect human rights (IACtHR 2015, CESCR 2017, and States' obligations often entail enacting the legislative and administrative measures necessary to ensure that other actors, such as businesses, respect human rights. The rights of particular relevance in the context of Indigenous peoples and activities that exploit natural resources can be broadly grouped into four categories, namely, well-being rights; cultural rights; land, territory, and resource rights; and self-determination and related rights (Anaya, J. 2000). The impacts of logging on well-being and cultural rights can in many cases arise out of violations of property and selfdetermination rights. This finding is not surprising given the interconnectedness of human rights. This suggests that respect for property and self-determination rights is critical to preventing violations of these other rights, and indeed, a significant portion of the international and regional jurisprudence on Indigenous peoples' rights focuses on the content of the latter two groups of rights.

Well-being rights
The most frequently described negative impacts of logging upon Indigenous peoples are usually impacts on well-being. These include impacts on the rights to life, security of the person, housing, health, water, food, livelihoods, education, environment, and development. Although the content of each right differs, and the rights are formulated differently in each treaty, UN treaty bodies and regional courts have similarly emphasized the importance of Indigenous peoples' access to their traditional lands, territories, and resources in realizing these rights.

UN treaty body jurisprudence on well-being rights
Many of the well-being rights are enshrined in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), including: the rights to life (ICCPR Art. 6); security of the person (ICCPR Art. 9); housing (ICESCR Art. 11); health (ICESCR Art. 12); water (ICESCR Arts. 11-12); food (ICESCR Art. 11); livelihood (ICESCR Art. 6); and education (ICESCR, Art. 13). The International Covenant on the Elimination of All Forms of Racial Discrimination (ICERD) requires States to guarantee the right of everyone to equality before the law, including in the enjoyment of well-being rights (Art. 5).
The Human Rights Committee (HRC), Committee on Economic, Social, and Cultural Rights (CESCR), and Committee on the Elimination of Racial Discrimination (CERD) have each made clear that Indigenous peoples are a population that faces higher risks of well-being rights violations because their well-being depends upon access to their lands, territories, and resources. The HRC advises that protecting the right to life requires States to take special measures of access to their traditional lands and resources. The Inter-American Court has examined Indigenous peoples' wellbeing rights through Articles 4 and 26 of the American Convention on Human Rights, which protect the right to life and obligate States to take measures towards the progressive realization of economic, social, and cultural rights, respectively. The American Convention does not have provisions protecting specific economic, cultural, and social rights. The Inter-American Court considered that the realization of all other rights depends upon the right to life, and that the right to life necessarily obligates the State not to create 'conditions that impede or obstruct access to a decent existence' (IACtHR 2005). Instead, the State must take 'positive, concrete measures geared toward fulfilment of the right to a decent life' (Ibid). The Court clarified that this does not impose impossible burdens upon the State, but that the obligation arises when the State has knowledge of a situation that poses a risk to life and there are measures the State could adopt to prevent or avoid the risk (IACtHR 2006).
The Court has found in several cases that, where the State had generated conditions affecting the ability of an Indigenous community to have a 'decent life', the State had violated the community members' right to life (IACtHR 2005, IACtHR 2006, IACtHR 2010. In each of these cases, the conditions negatively impacting upon the right to a decent life were related to the inability of the Indigenous community concerned to access and enjoy their traditional lands. The Court explicitly linked infringements on the rights to health, food, and clean water to negative impacts on the right to a decent existence and also to conditions that make more difficult the realization of other rights, such as the right to education and to cultural integrity (IACtHR 2005). The Court later, citing norms established by the CESCR, elaborated that the rights to water and food required that water and food be accessible and of adequate quality and quantity (IACtHR 2010); and that the rights to health and education required that services be accessible, acceptable, and culturally appropriate (Ibid). Moreover, in certain cases where evidence suggests that specific community members' deaths were known or should have been known to the State and preventable, those deaths may be attributable to the State as a violation of the right to life (IACtHR 2006, IACtHR 2010. In its most recent case on Indigenous rights, the Court established that the rights to environment, food, water, and cultural identity can be derived from Article 26 of the American Convention. The Court held that States have a duty to prevent environmental damage and to restore the environment where damage was not preventable (IACtHR 2020). In fulfilling this duty, States must take into consideration groups, such as Indigenous peoples, particularly vulnerable to environmental damage (Ibid). The Court drew on the jurisprudence of the CESCR to explain that the right to food requires that food is available, and that it is physically and economically accessible, and culturally acceptable, to present and future generations (Ibid). Again referencing the CESCR, the Court held that the right to water encompasses access to sufficient and safe water (Ibid). Finally, the Court held that States must adopt measures to allow Indigenous peoples to participate in protection for certain vulnerable populations, including human rights defenders and Indigenous peoples (HRC 2019). The Committee further commented that the right to life extends to the right to a decent existence, recommending that States address societal conditions, such as the 'deprivation of Indigenous peoples' land, territories and resources', that can either 'give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity' (Ibid).
The CESCR has explained that protecting the rights in the ICESCR requires ensuring both the availability and accessibility of the resource or service at issue (CESCR 1991, CESCR 1999, CESCR 2000, CESCR 2002. For example, the right to food requires that food is available in a quantity and quality that is sufficient to satisfy dietary needs and is culturally acceptable (CESCR 1999). The food should also be economically and physically accessible, to both present and future generations (Ibid). The Committee noted that Indigenous peoples are particularly vulnerable to the risk of inaccessibility of food if their 'access to their ancestral lands may be threatened' (Ibid).
In elaborating upon the right to health, the Committee recommended that States enact specific, culturally appropriate measures to improve Indigenous peoples' access to health services and care (CESCR 2000). It additionally recommended that States 'provide resources for Indigenous peoples to design, deliver and control such services' and protect the 'vital medicinal plants, animals and minerals necessary to the full enjoyment of health of Indigenous people' (Ibid). The Committee warned that development activities that result in 'the displacement of Indigenous peoples against their will from their traditional territories and environment, denying them their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious effect on their health' (Ibid). Similarly, the Committee recommended that Indigenous peoples' 'access to water resources on their ancestral lands is protected from encroachment and unlawful pollution' and that States 'provide resources for Indigenous peoples to design, deliver and control their access to water' (CESCR 2002).
The CERD has, in numerous concluding observations and recommendations, urged States to take measures to ensure that Indigenous peoples do not experience discriminatory impacts on their well-being. For example, it has recommended that States implement safeguards against negative environmental impacts of natural-resource exploitation activities to prevent detriment to Indigenous peoples' living conditions, and that they support Indigenous peoples' traditional ways of life (CERD 2016, CERD 2017a. It has also recommended that States prevent the preferencing of commercial interests over Indigenous peoples' rights, for example by ensuring that use of water by extractive industries does not impair access to water by Indigenous peoples (Ibid).

Regional court jurisprudence on well-being rights
The Inter-American Court and the African Court have each taken different approaches towards well-being rights, but they have both similarly linked Indigenous peoples' well-being to In a series of decisions, the HRC established that the right to culture includes the 'right of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong' (HRC 1990). The economic component of this right is not limited to 'traditional means of livelihood of national minorities'; it includes the adaptation of those livelihoods with the help of modern technology (HRC 1994b). Importantly, Article 27 protects the right of minority members to be able to continue to benefit from their cultural practices (Ibid). Historic inequities and recent developments can both violate Article 27 (HRC 1990), as can the 'combined effects of a series of actions or measures taken … over a period of time and in more than one area of the State occupied by that minority' (HRC 2005). The HRC has made clear that not all development activities would necessarily be considered violations of Article 27; instead, measures with 'a certain limited impact on the way of life of persons belonging to a minority' may be acceptable, provided that the members of the minority are not denied the right to enjoy their culture (HRC 1994b).
The ICESCR, Art. 15 protects the right to 'take part in cultural life'. The CESCR has commented on the importance of protecting Indigenous peoples' cultural values 'associated with their ancestral lands' to 'prevent the degradation of their particular way of life, including their means of subsistence, the loss of their natural resources and, ultimately, their cultural identity' (CESCR 2009). The Committee additionally observed that Indigenous peoples' cultural rights associated with traditional lands are particularly vulnerable in the context of business activities (CESCR 2017).
The CERD has similarly called upon States to 'Recognize and respect Indigenous distinct culture, history, language and way of life … and to promote its preservation', and to 'Ensure that Indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages' (CERD 1997). The Committee has also advised that States take the 'cultural specificities' of Indigenous peoples into account when adopting measures to fulfil other rights, such as the rights to health and education (CERD 2019).

Regional courts jurisprudence on cultural rights
The regional courts have also taken note of the integral part that Indigenous peoples' relationships with their lands play in their cultural identities. The American Convention on Human Rights does not provide for a specific right to culture. The Inter-American Court has instead addressed cultural rights primarily in the context of other rights, notably land rights.
The integral nature of Indigenous peoples' relationships with their lands to their cultures has been used by the Inter-American Court as a benchmark for assessing appropriate restrictions on land rights and compensation for those restrictions. When determining whether Indigenous territorial rights can be restricted, the Court has required States to take into account that Indigenous territorial rights are 'a necessary condition for reproduction of their culture, for their own development and to carry out their life aspirations' and that disregarding Indigenous land rights 'could affect other basic cultural life and that prevent others from interfering with their cultural practices (Ibid). These rights are all interdependent, and the failure to respect any one right can lead to infringements upon the others (Ibid).
The African Court has approached Indigenous peoples' well-being rights through the African Charter, Article 4, on the right to life, and Article 22, on the right to development. Like the Inter-American Court, the African Court agreed that the right to life is the foundational right, upon which the realization of all other rights depends (ACtHPR 2017). However, the Court distinguished the right to life as relating to the 'physical rather than the existential understanding of the right to life' and thus, the creation of conditions 'unfavourable to a decent life' do not 'necessarily result in the violation of the right to life' (Ibid). As a result, even where eviction of an Indigenous community from their ancestral lands 'adversely affected their decent existence in the forest', the Court found no violation of the right to life (Ibid).
The right to development in the African Charter refers to 'economic, social, and cultural development' (Art. 21 (1)). The African Court found that this right should be read together with the right to development as formulated in the UN Declaration on the Rights of Indigenous Peoples, Art. 23, to include the right to be 'actively involved in developing and determining health, housing, and other economic and social programmes affecting them' (Ibid). In this case, the Court found a violation of the right to development because the Indigenous community had been evicted from their ancestral lands, suffering an adverse impact on their development, and they had not been actively involved in developing socioeconomic programmes affecting them (Ibid).

Cultural rights
The right to culture includes the right of groups to maintain their distinctive cultures and the right to take part in cultural life. 'Culture' is defined broadly, encompassing, 'in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs' (UNESCO 2001). Human rights bodies have generally agreed that for Indigenous peoples, culture includes specific relationships with their territories and lands.

UN treaty body jurisprudence on cultural rights
The HRC, CESCR, and CERD have affirmed the crosscutting nature of Indigenous people's culture and emphasized that protection of the right to culture requires protection of Indigenous peoples' ways of life. The HRC has, through several binding decisions, as well as other recommendations, elaborated on the meaning of ICCPR, Article 27, which protects the right of minorities, 'in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language'. The HRC has observed generally that culture may manifest in different forms and 'may consist in a way of life which is closely associated with territory and use of its resources' (HRC 1994a). rights, such as the right to cultural identity and to the very survival of the Indigenous communities and their members' (IACtHR 2005). As such, in cases where private property rights compete with Indigenous property rights, restricting those private property rights 'might be necessary to attain the collective objective of preserving cultural identities in a democratic and pluralist society' (Ibid). The Court cautioned that this does not mean Indigenous communal property interests must always prevail over individual interests; nevertheless, where private interests prevail, States must pay compensation to the affected Indigenous peoples according to the 'meaning of the land' for the Indigenous people (Ibid).
However, the interests and rights of Indigenous peoples must prevail if any restrictions on their property rights would endanger their 'survival as a people' (IACtHR 2007). The Court defined this standard, again, in terms of culture. 'Survival' in this context means the ability of the Indigenous people to 'continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected' (IACtHR 2008).
The African Charter, by contrast, provides explicitly for the right for every person to 'take part in the cultural life of his community' (Art. 17 (2)). Like the UN treaty bodies and the Inter-American Court, the African Court defined culture broadly to encompass the 'total way of life of a particular group, including the group's languages, symbols… the manner the group constructs shelters; engages in certain economic activities, produces items for survival; rituals … and shared values of its members' (ACtHPR 2017). The Court noted that the right to culture requires not just 'the duty, not to destroy or deliberately weaken minority groups, but requires respect for, and protection of, their cultural heritage essential to the group's identity' (Ibid). The Court found that Indigenous peoples are particularly vulnerable to loss of culture because of economic development programs and their unique ways of life (Ibid). However, the right to culture is not absolute. The Court noted that, in general, rights might be restricted in the common interest and if the interference with the right is necessary and proportional to a legitimate aim (Ibid).

Land, territory, and resource rights
As discussed above, Indigenous peoples' access to and enjoyment of their lands, territories, and resources have been recognized as crucially important to the fulfilment of their well-being and cultural rights. Accordingly, there is general agreement in the human rights jurisprudence that Indigenous peoples have rights to their lands, territories, and natural resources.

UN treaty body jurisprudence on land rights
The HRC, CESCR, and CERD have affirmed the collective rights of Indigenous peoples to their traditional lands and resources. The HRC has, for example, recommended that States legally protect the right of Indigenous peoples to their ancestral lands and natural resources (HRC 2017a, HRC 2016), including by granting collective land titles (HRC 2018). The CESCR has similarly recommended that States 'guarantee the right of Indigenous peoples to dispose freely of their lands, territories and natural resources, by such means as providing legal recognition and the necessary legal protection' (CESCR 2015, CESCR 2019).
The ICERD requires States to prohibit discrimination in the enjoyment of the 'right to own property alone as well as in association with others' (Art. 5(d)(v)). The CERD elaborated upon this right in its General Recommendation No. 23, calling upon States to 'recognize and protect the rights of Indigenous peoples to own, develop, control and use their communal lands, territories and resources' (CERD 1997). The Committee has consistently recommended that States protect these rights by, for example, implementing legislation or legally recognizing Indigenous peoples' collective rights to own, use, develop, and control their lands, territories and resources (CERD 2020, CERD 2017b).

Regional courts jurisprudence on land rights
The Inter-American Court has elaborated extensively upon the precise details of Indigenous peoples' property rights. In its landmark decision on Indigenous property rights, the Court concluded that the right to property, enshrined in Article 21 of the American Convention, protects 'the rights of members of the Indigenous communities within the framework of communal property' (IACtHR 2001). This right derives from their customary laws and practices and entitles them to seek official recognition and registration of their property (Ibid).
The scope of this right extends to those lands traditionally possessed by the Indigenous people, even if they had unwillingly lost possession of those lands (IACtHR 2006). The property rights of Indigenous peoples include 'full guarantees over the territories they have traditionally owned, occupied and used in order to ensure their particular way of life, and their subsistence, traditions, culture, and development as peoples', as well as necessary access and use over additional areas they have traditionally accessed for other purposes (IACtHR 2015).
The property rights of Indigenous peoples extend to their natural resources, as well. The American Convention does not specifically mention a right to natural resources. However, without the ability to use and enjoy their natural resources, 'the very physical and cultural survival of such [Indigenous] peoples is at stake'. Because of this, the protections afforded by Article 21 encompass not only lands but also 'those natural resources traditionally used and necessary for the very survival, development and continuation of such people's way of life' (IACtHR 2007).
The right to property, however, as with most human rights, is not absolute, so restrictions on this right can be made, if they are established by law, necessary, proportional, and aimed to 'attain a legitimate goal in a democratic society' (IACtHR 2005). The Court added that in the context of Indigenous peoples, an additional factor is 'whether the restriction amounts to a denial of [the Indigenous people's] traditions and customs in a way that endangers the very survival of the group and of its members' (IACtHR 2007). As discussed previously, this criterion refers to both the physical and cultural survival of the community.
The African Court has similarly concluded that the right to property, found in Article 14 of the African Charter, can be a collective right (ACtHPR 2017). The Court found that Indigenous peoples have the right to occupy, use, and enjoy their ancestral lands (Ibid). 3 This is separate from the right to natural resources, as the African Charter, Article 21, includes a specific right to natural resources. The Court found that this right exists for Indigenous communities (Ibid), and that the right of Indigenous people to their ancestral lands, particularly the rights to use and enjoy the produce of the land, 'presuppose[s] the right of access to and occupation of the land', and that violations of such rights also imply violations of the right to 'enjoy and freely dispose of' the resources produced by those ancestral lands (Ibid).

Right to self-determination and related rights
The fourth category of rights of Indigenous peoples (referred to in this article as 'participation rights') includes the rights to self-determination, internal autonomy, effective participation, consultation, and Free, Prior, and Informed Consent ('FPIC'). This bundle of rights can be thought of as both the basis of and arising out of Indigenous peoples' land rights. On the one hand, for instance, the right to self-determination as formulated in the ICCPR and ICESCR Article 1 includes the right to 'freely dispose of their natural wealth and resources'. On the other, property rights, encompassing the rights to own, occupy, use, and control the land and natural resources, imply a right to make decisions affecting those lands and resources. The human rights treaty bodies have commented extensively upon these participation rights as important safeguards for protecting land and other rights.

UN treaty body jurisprudence on the right to self-determination
The right to self-determination is enshrined in both the ICCPR and ICESCR Article 1. It includes the right of peoples to 'freely determine their political status and freely pursue their economic, social and cultural development' and to 'freely dispose of their natural wealth and resources'. The HRC has observed that the right of peoples to self-determination and to dispose of their natural resources is 'an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights' (HRC 1990). The Committee has recommended that States ensure 'the effective participation of members of minority communities in decisions which affect them' (HRC 1994a). The safeguard of the right to effective participation 'is directed to ensure the survival and continued development of cultural identity…' (HRC 2009). Where actions may substantially interfere with a minority community's culturally important activities, then obtaining the FPIC of the community may be required (Ibid; HRC 2017b). Determining the potential impact on the community's activities should involve the conduct of an independent impact assessment, and where the State allows the activity to proceed, it should put in place mitigation and compensation measures (HRC 2009).
The CESCR has recommended that States take 'necessary legislative and administrative measures to ensure that the free and informed prior consent of Indigenous peoples is obtained with regard to decisions that may directly affect the exercise of their economic, social and cultural rights' (Ibid; CESCR 2019). The Committee has specified that it is not only States that must obtain FPIC; businesses should also respect Indigenous peoples' right to FPIC, and States should enact legislative or other measures to hold businesses accountable (CESCR 2017). The requirement to obtain FPIC necessitates consultation with Indigenous peoples through their representative institutions before concessions are even granted, and the consultation process should proceed in accordance with protocols agreed with the Indigenous community (CESCR 2017, CESCR 2018. States should develop guidelines to evaluate the human rights impact of extractive projects, particularly when they involve Indigenous peoples' rights (CESCR 2019, CESCR 2017). The impact assessment and consultation process should not only identify the potential and actual impacts of the project or activity, it should also involve the design of prevention, mitigation, and compensation measures, as well as a benefit sharing mechanism (Ibid).
The CERD called upon States to ensure that Indigenous peoples 'have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent' (CERD 1997). Specifically in the context of land rights, the CERD observed that States should take measures to return Indigenous peoples' traditional lands and territories 'where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent' (Ibid).
The CERD has recommended numerous times that States consult with Indigenous peoples with a view to obtaining their FPIC on any project, activity, legislative, or administrative measure likely to affect their rights, particularly their property rights (CERD 2020, CERD 2019, CERD 2018b, CERD 2015. It has additionally recommended that States ensure that independent environmental and human rights impact assessments are carried out prior to granting permits for development activities in the territories of Indigenous peoples (CERD 2020, CERD 2019, CERD 2018b, CERD 2015. Consultation processes with affected Indigenous peoples should also design measures for mitigation, compensation, and benefit sharing (CERD 2020, CERD 2019, CERD 2018b).

Regional courts jurisprudence on the right to self-determination
The Inter-American and African Courts have similarly found participation rights to be important mechanisms for the protection of other rights. As explained above, the Inter-American Court established that any restriction on Indigenous peoples' property rights must, in addition to other requirements, not deny the survival of the community and its members (IACtHR 2007). In order to guarantee this, the State must ensure: 1) Indigenous peoples' 'effective participation … in conformity with their customs and traditions', in decisionmaking around any 'development, investment, exploration or extraction plan' affecting their territory; 2) Indigenous peoples receive 'a reasonable benefit' from any such project; 3) the conduct of an independent, prior environmental and social impact assessment; and 4) 'adequate safeguards and mechanisms' that ensure that the project does not 'significantly affect the traditional [Indigenous] lands and natural resources' (Ibid).
The right to effective participation in decision-making entails the right to be actively consulted from the early stages of a development plan -before exploration, exploitation, or extraction (IACtHR 2007, IActHR 2015) -and continues 'at all stages of the planning and implementation of a project' (IACtHR 2012). The possible risks of the project, especially potential environmental and health impacts, must be fully enumerated, and the consultation must be 'in good faith, through culturally appropriate procedures and with the objective of reaching an agreement' (IACtHR 2007). The Court explained that respecting culturally appropriate procedures and traditional decision-making means that it is for the Indigenous people to decide who represents them in the consultation process (IACtHR 2008). For large-scale projects that would have a major impact on a large part of the Indigenous peoples' territory, the right to effective participation extends to the right to free, prior, and informed consent (IACtHR 2007).
The second safeguard of benefit sharing is 'inherent' to the right, under Article 21(2) of the American Convention, to compensation for deprivation of property rights (Ibid). This right applies not only to the deprivation of property title, but also to 'the deprivation of the regular use and enjoyment of such property' (Ibid). The beneficiaries must be determined in consultation with the Indigenous people (IACtHR 2008). The Court emphasized that the benefit must be 'direct ' and 'mutually-agreed' (IACtHR 2015).
The third safeguard is a core component of the first. Environmental and social impact assessments ('ESIAs') must provide some 'objective measure of such possible impact on the land and the people' and ensure that the Indigenous people are aware of possible risks, including environmental and health risks, of a proposed project (IACtHR 2008). They must additionally address the cumulative impacts of existing and proposed projects to allow for a more accurate assessment of the proposed project's impacts (Ibid). ESIAs must be conducted by 'independent and technically capable entities', conform to international standards and best practices, respect Indigenous traditions and culture, and they must be completed before a concession is even granted (Ibid). Finally, the State must 'observe, monitor, supervise, or participate' in consultation processes (IACtHR 2012) and supervise the conduct of impact assessments (IACtHR 2008).
The African Court has not directly held that consultation or consent are requirements for infringements of Indigenous peoples' property rights. It has instead implied that consultation is a factor in a determination of rights violations. For example, it found a violation of an Indigenous community's property rights where the community was evicted from its traditional territory without consultation and without an adequate public interest justification (ACtHPR 2017). The Court similarly implied that consultation and participation are requirements in protecting the right to development. The Court found a violation of the right to development where an Indigenous community had been evicted from its ancestral lands 'without being effectively consulted' and where they had not been 'actively involved' in determining socioeconomic programmes affecting them (Ibid).

DISCUSSION
Logging activities can begin to impact Indigenous peoples' rights from the moment that the decision is made to grant a logging concession or to commence logging in lands traditionally owned, used, and occupied by Indigenous peoples. The very decision itself, including the assessment of whether those particular lands are Indigenous peoples' lands or not, impacts upon Indigenous peoples' land and participation rights. Once logging activity commences, it can negatively affect a range of Indigenous peoples' well-being and cultural rights, ranging from impacts on life and living conditions to impacts on health, livelihoods, and traditional practices.
To prevent these harmful rights infringements, States and logging companies should follow the guidance provided by human rights treaty bodies and ensure that they do the following prior to granting or obtaining any logging concessions and commencing logging operations: 1. Conduct an independent human rights impact assessment. This should serve as an objective measure of potential economic, social, cultural, and other human rights impacts of the project. For example, it should assess possible impacts of the logging activity on the Indigenous community's access to clean water, access to food, livelihood activities, practice of traditional medicine, and cultural practices. It should also assess prevention and mitigation measures. 2. Ensure that the affected Indigenous peoples are actively participating in decision-making around the project. This includes consulting with the community through their chosen representative institution with the aim of obtaining the community's FPIC to the project. 4 Part of the consultation process involves sharing the findings of the impact assessment so that the community can be fully informed of the possible risks of the project when making their decision. 3. Agree with the Indigenous community concerned on prevention and mitigation measures, compensation for any harms suffered, and benefit-sharing mechanisms.
The above-listed steps are by now well-established components of the participation rights of Indigenous peoples under international human rights law. Aspects of these requirements are becoming incorporated into national legislation in some States and into the policies of international organizations and corporations (EMRIP 2018). In the forestry sector, the Forest Stewardship Council and Programme for the Endorsement of Forest Certification sustainable forestry certification standards both require forestry operators to recognize the right to FPIC in some form (FSC 2015 andPEFC 2018). However, State compliance with treaty obligations and incorporation of protection of Indigenous rights into national legislation varies, and even where these obligations have been incorporated into legislation or policy, proper implementation of these requirements remains lacking in practice. Reported problems with implementation of participation rights generally include, among others, the failure to recognize that Indigenous communities in the area have land and participation rights (SRIP 2013, FPP 2018; the decoupling of the above steps and non-integration of, for instance, impact assessment processes as components within an FPIC process (Schilling-Vacaflor 2019, McNabb, C. 2018); failure to explain and lack of community understanding of the terms or consequences of agreements they are entering into (FPP 2015, FPP 2018, FPP 2020; and lack of clarity about Indigenous peoples' right to withhold consent (EMRIP 2018).
The improper implementation of FPIC appears to arise out of a misunderstanding or misconstrual of the content of Indigenous peoples' participation rights under international law as being merely procedural hurdles to legitimization of extractive projects by Indigenous peoples (EMRIP 2018). Case studies suggest that even where proponent-driven or government-led processes include Indigenous peoples' participation, they are often inadequate in enabling full and free deliberation by Indigenous peoples Rodon, T. 2017, Merino, R. 2018). By contrast, FPIC may be more successfully operationalized where Indigenous communities develop -and governments and companies follow -their own mechanisms to implement FPIC, such as FPIC protocols or community-driven impact assessments T. Rodon. 2019, Fredericks, C. 2017). While not all communities have the resources or capacity to develop and implement such mechanisms, the broader lesson is perhaps simply that government and corporate actors cannot comply with international human rights standards while ignoring the agency of Indigenous peoples to make decisions that impact them or failing to rectify power imbalances that may impact decisionmaking processes (SRIP 2013, EMRIP 2018. What this means for the logging sector is that preventing negative impacts on Indigenous peoples' well-being requires devoting time and resources to ensure that Indigenous peoples are able to fully exercise their rights to participate actively and effectively in decision-making around the logging activities that may affect them.