Ways in which courts are giving effect to UNDRIP
Amanda Nurse
Internationally, courts are increasingly engaging with Indigenous rights in ways that move beyond procedural consultation and toward substantive recognition of Indigenous peoples’ rights to their lands, territories and resources, and to their institutions and governance. Recent decisions from Peru, Colombia, and Brazil illustrate a growing judicial willingness to interpret domestic law consistently with international instruments, including the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and the Indigenous and Tribal Peoples Convention, 1989 (“ILO No. 169”).
#1. In Kichwa v. Minister of the Environment (Peru, 2024), Puerto Franco, a Kichwa Indigenous community, challenged Peru’s failure to recognize their ownership of approximately 118,000 hectares of traditional territory within the Cordillera Azul National Park, established in 2001 without consultation or consent. The claim also addressed the impacts of forestry activities and a REDD+ carbon-credit project operating on those lands.
The Mixed Court of Bellavista ruled in favour of the Kichwa, ordering that they be awarded title to their traditional territory, guaranteed access to natural resources within the park, and receive an equitable share of benefits from the carbon-credit sales. The Court also directed Peru to implement mechanisms for Kichwa participation in the management of the territory and to adjust aspects of the REDD+ project such that the Kichwa be involved in decision-making for the project.
The Court interpreted Peru’s constitutional and statutory framework consistently with UNDRIP. In particular, the Court relied on Article 26 of UNDRIP, which affirms Indigenous peoples’ rights to own, use, develop and control the lands, territories and resources they have traditionally occupied or used, and Article 27, which requires states to establish fair and independent processes to recognize and adjudicate those rights. The Court also emphasized Article 4, recognizing Indigenous peoples’ right to self-government and autonomy in matters relating to their internal affairs, and treated self-determination as a foundational principle informing the protection of Indigenous territorial rights. The judgment reflects an approach in which UNDRIP and international law inform the interpretation of domestic law, in recognizing and giving effect to those rights recognized under domestic legislation.
#2. In Colombia, Pirá Paraná Indigenous Council v. Ministry of Environment (Colombia, 2024) arose from a claim filed by the Pirá Paraná Indigenous Council and the Association of Indigenous Traditional Authorities of river Pirá Paraná “ACAIPI”, challenging REDD+ projects that proceeded without free, prior and informed consent (“FPIC”). The applicants argued that the projects threatened their governance systems, cultural integrity, and traditional agroforestry practices (chagras). Although the claim was initially dismissed on procedural grounds, the Constitutional Court selected the case for review and ultimately found that the plaintiffs’ rights had been violated.
The Court held that both state authorities and private project developers failed to meet their obligations by not incorporating human rights standards, failing to obtain FPIC, and inadequately assessing and monitoring potential harms. The Court emphasized that FPIC is required where projects pose a serious risk to Indigenous communities and their way of life.
While recognizing the potential value of REDD+ projects for climate mitigation, the Court emphasized that such initiatives must be implemented in a manner consistent with Indigenous rights and governance. It ordered the development of a revised framework with processes to ensure Indigenous participation in determining whether and how such projects proceed in their territories. Rather than mandating a specific project outcome, the Court required the creation of conditions for informed, autonomous decision-making by the affected communities.
#3. In Brazil, Arayara Association of Education and Culture v. Copelmi Mineração Ltda. (Brazil, 2022; upheld on appeal 2025) involved a challenge to the environmental licensing of the proposed Mina Guaíba coal project, one of the largest planned open-pit coal mines in the country. The project was located close to Mbyá-Guarani communities, who argued that they had not been consulted and that the environmental impact assessment failed to account for their presence and rights.
The Federal Court annulled the licensing process, finding that it was fundamentally flawed due to the absence of FPIC consultation and the failure to include an Indigenous Component Study within the environmental assessment. The Court emphasized that consultation must occur before key project decisions are made and that procedural omissions at early stages can invalidate the entire approval process. This reasoning was upheld by the Federal Regional Court in 2025, which reaffirmed that Indigenous participation is necessary for lawful environmental decision-making, relying on UNDRIP and ILO No. 169. The rulings ultimately halted the project’s advancement.
Taken together, these cases reflect shared themes. First, courts are giving effect to UNDRIP in different ways, such as treating Indigenous self-determination as a substantive legal principle with concrete implications for land rights, governance, and resource management. Second, UNDRIP is being used alongside domestic constitutional provisions and binding international instruments such as ILO No. 169 to inform interpretations of Indigenous rights. Third, there is growing scrutiny of climate-related and extractive projects that proceed without meaningful Indigenous participation or FPIC.
These developments are especially significant in the context of climate governance. While mechanisms such as REDD+ are designed to incentivize conservation and reduce emissions, these decisions demonstrate that courts are resistant to climate solutions that reinforce patterns of Indigenous exclusion or dispossession of lands. Instead, they are requiring that such initiatives align with principles of UNDRIP, involve equitable benefit-sharing, and respect Indigenous governance systems.
For jurisdictions such as Canada, these decisions provide a useful comparative perspective. They point toward an emerging legal landscape in which Indigenous authority over lands and resources is protected through enforceable rights to participation, consent, and governance.
Amanda Nurse