Illusions of protection: Environmental law and the betrayal of Indigenous peoples' right to a healthy environment

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.