Following the United Nations Permanent Forum for Indigenous Peoples 17th session ‘Indigenous Peoples’ Collective Right to Land, Territories and Resources’ held in 2018, it is apparent that the connection between peoples and land continues to be at the center of conflict, hardship, and misunderstandings. This article provides the reader with an overview of the current standings of indigenous and minority groups’ collective rights to land, territories and resources. The author further provides recommendations to enhance policy impact on this issue.
The right to lands, territories, and resources is a centerpiece in indigenous peoples’ struggles across the globe. The lands held by indigenous peoples make up a key aspect of their collective identities and heritages and are therefore culturally inalienable. The territories they have traditionally occupied, and which have shaped their distinct identities, livelihood practices, and knowledge systems, have been submerged into nation-states in which land is allocated through a system of individual property rights. However, indigenous peoples’ land rights arguably comprise both individual and collective aspects. While indigenous peoples often have customary ways of recognizing land and resource rights of individual members or households, the collective aspects of their rights to lands derive from international conventions respecting the right of peoples to their property and United Nations declarations regarding indigenous peoples.
In the eyes of the international community, indigenous land titles are collectively rather than individually held. Ancestral lands are connected to indigenous peoples’ cultural, spiritual, and social identities, comprise a foundational aspect of their traditional knowledge systems, and inhere in their physical and financial well-being. Thus, the identity of indigenous peoples as distinct peoples depends on their rights to own, conserve, and manage their own lands, territories and resources.
The United Nations Declaration on the Rights of Indigenous Peoples (“UNRIP”) recognizes indigenous peoples’ rights to self-determination (articles 3,4), participation in decision-making processes (articles 5, 18 and 27), free and informed consent in relation to any action or event that may impact their rights (articles 10, 11, 19, 28, 29 and 32), and to own and manage their lands and resources (articles 25, 26 and 27). Indigenous peoples’ rights are further defined in the 1989 International Labor Organization convention for Indigenous and Tribal Peoples (“ILO”) (No.169), which aims to protect their way of life and culture based on the their own priorities. The ILO convention Part Two articles 13 to 19 contain provisions on land rights for indigenous peoples.
Jurisprudence is expanding through the human rights treaty bodies, the Inter-American Court of Human Rights, and the African Court on Human and Peoples’ Rights. These developments in customary international law and human rights standards support the rights of indigenous peoples to lands, territories, and resources. One example is the recent case of the African Court on Human and Peoples’ Rights on the expulsion of Ogiek peoples, a hunter-gather community in Kenya, from the Mau forest. In finding violations of various rights, the court explicitly stated that the Ogiek had a communal right to their ancestral land.
In 2001, the Inter-American Court of Human Rights (IACtHR) became the first human rights body to interpret the right to property to be understood as a people’s right to communal property, not merely private property. The following year, the African Commission on Human and Peoples’ Rights found that Nigeria had violated the right to property of the Ogoni people following violent attacks and destruction of Ogoni villages. As a further development, the IACtHR ruled that a people do not have to be indigenous to the territory they reside on to have right to the land. In Moiwana Community v. Suriname, the IACtHR upheld that the Moiwana Community was entitled to the land they inhabited even though it was undisputed that they were not indigenous to the region. This interpretation was reaffirmed in the case of Saramaka People v. Suriname a few years later.
Some states have recognized the collective rights to lands, territories, and resources with constitutional or legal protections, as well as through direct agreements with indigenous peoples. These countries include New Zealand, Canada, Norway, Ecuador, Denmark, Indonesia, and the Philippines. In some countries, including the United States and Australia, land and territories have been set aside for indigenous peoples. These developments are welcomed, but even in countries that recognize indigenous rights there is still progress to be made to narrow the gap between formal recognition and full implementation of laws and policies that ensure these rights. In many countries where rights are recognized they are not being implemented sufficiently. In some cases, there are contradictory laws and regulations that result in de facto denial of rights, as the World Bank indicates occurred in the Russian Federation. States must be commended for recognizing the rights of indigenous peoples’ to lands, territories, and resources, yet we must also urge states to implement these rights fully.
Many states have not provided official recognition of indigenous peoples overall. There are acute concerns on the lack of recognition, particularly in Africa and Asia. There are continuous concerns for the indigenous peoples residing in, but not limited to, Central Africa, Democratic Republic of Congo, Rwanda, and Chad, who continue to face violations of their rights to land, territories, and natural resources. They face an abundance of obstacles in terms of economic, social, political, and legal developments that are rooted in their lack of rights to land and natural resources. Violations include those connected to cultural rights, legal recognition, political representation and participation, and a lack of basic human rights. Violence against individuals and communities includes rape, land conflicts, human rights abuses, and expulsion.
These violations are important because it is impossible to achieve the Sustainable Development Goals under the 2030 Agenda for Sustainable Development without fulfilling indigenous peoples’ rights to lands, territories, and resources. To achieve Sustainable Development Goal (“SDG”) 2.3 on ‘secure and equal access to land’, states will need to include the customary rights of indigenous peoples to their lands and resources. To that end, states should work with indigenous peoples to establish a judicial institution within their national jurisdictions tasked to handle lands, waters, and other resources pertinent to indigenous peoples’ rights and ownership.
RECOMMENDATIONS
While there is still significant progress to be made, there are ways to improve indigenous rights to land, territories, and resources. The three recommendations outlined below are small changes that can be implemented in a nimble and timely manner yet be effective.
The UN Secretary General should continuously collect information on abuses towards indigenous peoples. Building a platform for information and knowledge sharing will provide a basis for recommendations by UN member states that can transcend the rights discussion. Additionally, nation-states should provide information on the above developments in the collective rights of indigenous peoples and constructive agreements with indigenous peoples. As the ‘right to land, territories and resources’ is getting further defined through precedent set by human rights courts, having a body of information of the variates of systems and changes would give the courts the opportunity to provide universally applicable answers and outcomes.
Moreover, the Expert Group in charge of SDG Indicators should monitor and report on any changes in land use and land tenure on indigenous peoples’ lands. The indicator currently comprises two components: (i) percentage with documented or recognized evidence of tenure and (ii) percentage who perceive that their rights to land, property, or other productive resources are recognized and protected. The framework should have an additional indicator (iii) surveying trends and usage of traditional land.
Furthermore, the World Bank is presently revising its safeguard system and there are acute concerns that the new Environmental and Social Safeguard 7 (ESS7) will allow lands to change ownership from indigenous peoples’ collective territories to individually held ownership rights, despite the World Bank’s recognition of the importance of protecting indigenous peoples’ land rights. Such conversion may generate conflicts, damage to livelihoods, and resource-management problems. The World Bank should make sufficient revisions to alleviate indigenous concerns.
This paper has attempted to provide an overview of the current standings of indigenous rights to land, territory, and resources, in accordance with international law. While the prospects may seem grim, small changes in policies may have significant impact on the scope of international instruments.
Photo by Broddi Sigurðarson
Sofia is an international public servant, currently working for the United Nations Office of Internal Oversight Services. She is a Fulbright Scholar and holds an Master of Public Administration (MPA) from Cornell University and an MSc in Security Studies from University College London. Her research interests include indigenous and minority rights under international law.