Crafting Domestic Environmental Law Mechanisms for Addressing the Environmental Impacts of Development on Indigenous Peoples
The North American Experience
James M. Grijalva
Professor of Law
University of North Dakota School of Law, USA
IABA XLVIth CONFERENCE
A Legal View on the Global Economy and the
Repercussions on Regional Economies
Inter-American Bar Association
Rio de Janeiro, Brazil
June 18, 2010
Greetings everyone. I am pleased to be here with you today. I wish to first offer my thanks to the organizers of this Annual Meeting, and particularly to Leonardo Palhares for kindly inviting me to appear here today.
Over the last twenty years I have been a private attorney and a full-time law professor in the United States. The primary focus of my professional work has been on the application of domestic environmental law to the territories of American Indian tribes. My work has put particular emphasis on governmental roles Indian tribes can assume to regulate or otherwise influence industrial activities that pollute or degrade the natural environment.
In 2009, I expanded my study to Canadian law. The United States Council for the International Exchange of Scholars granted me a Senior Fulbright Scholar award for a research visit to the University of Alberta in Canada, where I studied domestic legal mechanisms available to Canadian First Nations for protecting their peoples and territories from the environmental impacts of natural resource development. I am currently in the process of conducting a comparative analysis of the U.S. and Canadian systems.
Today, I will speak briefly on those approaches, and conclude with some thoughts on how they might offer insight into addressing some of the indigenous issues facing Central and South American states.
II. United States Law – Treating Tribes Like State Governments
Understanding the U.S. approach requires some familiarity with modern environmental law in the United States, which began in the 1970s. The modern paradigm is referred to as cooperative federalism, which relies on partnerships between the federal government and individual state governments, where states implement federally prescribed programs under federal supervision. These federal-state partnerships help balance states’ inherent governmental powers to regulate for the welfare of their people,
with the federal government’s constitutional power over issues of national concern.
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