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NORMATIVE SHIFTS IN THE LEGAL LANDSCAPE: WHERE ARE WE? WHERE
ARE WE HEADED WITH INDIGENOUS LAND RIGHTS?
KAROL C. BOUDREAUX The Cloudburst Group, USA
Paper prepared for presentation at the “2015 WORLD BANK CONFERENCE ON LAND AND POVERTY”
The World Bank—Washington DC, March 23–27, 2015
Copyright 2015 by author(s). All rights reserved. Readers may make verbatim copies of this document for non-commercial purposes by any means, provided that this copyright notice appears on all such copies.
Abstract
Several recent national and international/regional court decisions have protected or expanded the
land and resource rights of local and indigenous people. In these landmark decisions the rights of
indigenous people to occupy, manage, and benefit from the use of traditional lands have been
recognized. At the African Court of Human and People’s Rights and at the International
Criminal Court cases to protect land rights and limit harms to vulnerable communities are
moving forward and may create important precedents that complement national case law. At the
same time, soft international law provides additional guidelines on the protection of indigenous
and customary land rights, notably in the Voluntary Guidelines on the Responsible Governance
of Tenure (VGGT). While many groups remain at risk, in some places legal protection is
improving and opportunities to manage and control resources growing. This is important:
placing the control of resources into the hands of indigenous peoples should expand economic
opportunities. Shifting control over lands and resources empowers indigenous people with
decision making authority that should increase autonomy and voice. These changes also raise
cautionary flags for private sector actors—standards of due diligence and community
engagement need to rise to take this shifting legal environment into account.
Key Words:
Indigenous, Jurisprudence, Land rights; Resource rights; Tshilhquot’in
Introduction
Across countries and at the international level a confluence of legal developments is driving
international efforts to secure the land and resource rights of local and indigenous peoples.
National and international law, policies, and jurisprudence are weaving together with soft law
guidelines and principles to create stronger standards related to indigenous land and resource
rights. At this juncture it is appropriate then to ask: are we at a watershed moment in the history
of legal protection of local and indigenous land rights?
Over the past two decades, a number of governments in the developing world have enacted land
laws and policies that increase recognition for the use and access rights of people and
communities that were marginalized under colonial and post-colonial regimes.1 These legal
changes were supported by a coalition of national and international civil society organizations
and donors who recognized that these efforts could, if properly implemented, enhance autonomy,
increase economic opportunity, reduce conflict and limit environmental harms associated with
the misuse and overuse of land and other natural resources to meet social and development
objectives.
At the same time, the jurisprudence related to the land and resource rights of indigenous or
native peoples has slowly been shifting. Litigation, coupled with advocacy efforts to amend
legislative frameworks, helped drive increased recognition of some land rights of disadvantaged
groups. Aboriginal peoples in Australia, Maori in New Zealand, Native and First Peoples in
North America have successfully litigated cases that recognize rights over some portion of the
vast estates in land that they held in pre-colonial times. As one example, since its landmark 1992
case of Mabo v. Queensland (Mabo v. Queensland [No. 2] , 1992), the government of Australia
has found that native title exists on over 2 million square kilometers of territory, 38% of which is
held as exclusive native title (National Native Title Tribunal, 2015).
Legal recognition provided a basis for further challenging public and private sector actors in
courts. Regional human rights tribunals as well as some national courts have issued historic
1 Among these are Kenya, Tanzania, Mozambique, South Sudan, and Liberia. Burma is in the process of legal reform to recognize customary land rights and Indonesia, Papua New Guinea, and Malaysia have already recognized customary lands. In Latin America, Colombia, Panama, Nicaragua, Argentina and Chile have laws protecting the land rights of indigenous communities.
rulings in favor of local and indigenous peoples.2 These cases are also important because they
should raise flags around the need for businesses to strengthen due diligence and improve
community engagement when they acquire rights to land and resources. Although cases have
taken years to litigate and have been costly, in some jurisdictions the arguments of indigenous
communities and local women and men are succeeding.3 Their rights to manage, control and
benefit from the use of resources is being recognized, their rights to consultation are being
recognized and their rights to be free of, or compensated for, violations human rights related to
the use of land are being recognized in some courts. A recent commentary filed at the
International Criminal Court that seeks to investigate national leaders and private business
people actors with close ties to the government of Cambodia for crimes against humanity based
on land grabbing is a glimpse of the direction in which litigation related to large-scale land
acquisitions may be headed.
The endorsement, in 2011, of the United Nations Guiding Principles on Business and Human
Rights (UNGP) provided complementary guidance on the need to respect and protect rights
related to the use of land and resources and remedy violations of these rights. These guiding
principles provided a key underpinning for the 2012 Voluntary Guidelines on the Responsible
Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security
(VGGT), a landmark that provides high-level guidance to national governments that wish to
align laws and policies to improve land governance, land transparency and land rights. With
support from international donors some governments are working to operationalize the guidance
provided by these documents—expanding recognition and respect for the rights of indigenous
communities. Businesses are making some changes: modifying corporate practices and policies
and developing corporate commitments to respect and protect rights. Court cases that hold
2 For example, recent decisions in Canada, Chile, Brazil, Malaysia and Indonesia provide more expansive protection of rights of indigenous peoples to manage and benefit from the use of resources and for improved consultation processes. For additional background information please see: http://www.rightsandresources.org/wp-content/uploads/Securing-Indigenous-and-Communtiy-Lands_Final_Formatted.pdf. 3 Of course in many places the situation is much less encouraging. For a recent review of concerns related to land rights and rights over forest lands please see: “Looking for Leadership: New inspiration and momentum amidst crises,” Rights and Resources Initiative Annual Review 2013-2014, at: http://rightsandresources.org/wp-content/uploads/RRI4087_AR2014r11B3.pdf.
businesses liable for failure to respect rights and that require businesses to return lands and/or
pay compensation for harms created may help increase uptake of new practices.
Thus it seems that forces are pulling in a similar direction: increasingly away from centralized
control of land and resources and towards more meaningful devolution of rights: devolution that
combines expanded management responsibilities with greater rights to benefit from the use of
these resources. But positive outcomes depend, at least in part, upon the ability of local women
and men, local communities, to exercise and enforce the new rights they are gaining.
This paper will explore the evolving legal environment related to land and resource rights. It will
analyze several recent cases that have increased legal recognition of rights of indigenous people
to control and benefit from the use of traditional territories. It will explore how shifting legal
standards are complemented by the development of new soft international law guidance on land
and land-based investments. New guidance may help prompt further shifts at the national level as
governments work to implement or operationalize international and regional guidance. At the
same time, high-profile private sector commitments to respect land rights may create additional
pressure to move this agenda forward.4
The paper will conclude by looking ahead to consider what may be on the horizon: the use of
international criminal actions to address the most heinous cases of land grabbing; further
developments in national courts to expand the land rights of native peoples; and growing private
sector commitments to respect and protect these rights. As technology changes and provides
lower cost, more accessible options to demarcate and register rights that are increasingly being
recognized by states and private sector actors, indigenous people are in a stronger position to
claim—or reclaim—territory and natural resources. Taken together, these changes bode well for
local and indigenous people—devolving rights and improving enforcement can provide a basis
for expanded economic opportunity for millions.
4 The two most public commitments come from Coca-Cola and Pepsico, though other companies, including Hershey’s and Unilever, have made related commitments.
Shifting National Law—Strengthening Indigenous Rights in Canada, Australia and
Paraguay
In some countries, political and social trends are contributing to the strengthening the land and
resource rights of local and indigenous people. Among the most encouraging developments are
jurisprudential changes in a number of countries. Several high-profile cases have recently been
issued by national courts that expand recognition of and rights over lands of indigenous groups.
Cases from North and South America, Asia and Australia all signal a greater willingness of
national authorities to recognize the legitimacy of indigenous claims to land—even in settled
areas—and to strengthen rights to be consulted before lands are developed. While these cases
have limited impact they will shape the way national law is implemented and they may serve as
guideposts for other jurisdictions, providing a sense of how case law may evolve in other
locations.
Tsilhqot’in Nation v. British Columbia
In 2014 the Supreme Court of Canada issued a landmark decision in the case of Tsilhqot’in
Nation v. British Columbia (hereafter Tsilhlqot’in) (Tsilhqot'in Nation v. British Columbia,
2014). The Tsilhqot’in case, which recognized that the indigenous Tsilhqot’in people had a
legitimate claim of the Aboriginal title over some 1,700 square kilometers of land in British
Columbia, had a lengthy gestation and a brief review of this history sheds light on how ideas
about the appropriate scale and scope of native land rights have changed in Canada.
Background to the Case
The Tsilhqot’in Nation is composed of a six different bands of native peoples who live in a
remote and difficult-to-access region of British Columbia, north of Vancouver. The bands who
occupy the Chiloctin Valley fish, hunt and use the forest resources of the area to support their
livelihoods. Although some non-Native peoples live in the region there has been very little
inflow of outsiders and traditionally the Tsilhqot’in have managed their resources and the access
of outsiders.
Like most native peoples in British Columbia, the Tsilhqot’in Nation did not sign a treaty with
the colonial British government or with the Canadian federal government. This is attributed to
the fact that the Tsilhqot’in faced little external pressure to cede land or resources rights given
how isolated their territory is. In areas where pressures were higher, native peoples have been
pressured to sign treaties ceding rights.
In 1983 however, the provincial government of British Columbia issued a 10-year license to a
lumber company, Carrier Lumber, Ltd., to harvest 5 million cubic feet of timber on Tsilhqot’in
lands. The license was issued based on the premise that the forests of the Chiloctin Valley
belonged to the province. The Tsilhqot’in Nation was not consulted prior to the government
issuing the license. Tribal members protested this action and called for discussions with the
company however these requests were rejected. When Carrier began working on infrastructure
and logging plans local people set up roadblocks and protested further development. The
Premier, head of the provincial government in Canada, intervened in the controversy promising
that no logging would take place without the consent of the local people. Carrier’s license to
harvest was revoked however, this did not end the controversy. The provincial government in
fact refused to grant a right of first refusal over timber harvesting to the Tsilhqot’in bands.
Finally, in 1990, one of the six bands, the Xeni Gwet’in, sued the government to stop any timber
harvesting that would negatively impact their ability to trap and sustain their traditional
livelihoods. Subsequently, the case was amended to include a claim for Aboriginal title of the
entire Tsilhqot’in Nation over some 4,300 square kilometers. After lengthy delay caused by the
submission of numerous motions, including multiple motions to dismiss by the government’s
lawyers, the case began in 2002.
The case involved an extremely comprehensive discovery process that involved the judge in the
case visiting the Chiloctin Valley and meeting with local peoples to develop a more complete
understanding of how lands and resources were traditionally used and how they continued to be
used. Finally, in 2007 Justice David Vickers articulated a test for claiming Aboriginal title and he
found that there was compelling evidence that Aboriginal title existed over approximately one-
third of the Tsilhqot’in territory (though he could not issue that title for procedural reasons).
Justice Vickers also determined that the Tsilhqot’in peoples had both Aboriginal and commercial
rights to hunt, fish, and trap animals over the entire claimed area and that the provincial
government violated these rights by issuing the timber license without consultation.
The Decision
This decision was appealed by both parties and taken to the British Colombia Court of Appeals.
In 2012 the court found that the Tsilhqot’in claim to title had not been proved, though might be
in the future, however rights to hunt, fish and trap were established. The court revised the lower
court’s legal test for claiming Aboriginal title, instead basing title on the existence of a village or
on “intensive” and virtually continuous use of an area since pre-colonial times. This meant that
use that was occasional, as is the case when migratory groups use resources, would not provide a
basis for a valid Aboriginal title claim.
Again, both sides appealed, this time to Canada’s Supreme Court. On June 26, 2014 the Court
issued its historic decision. By this time, a large number of parties had intervened in the case,
including other provincial governments, other First Nations, and natural resource management
firms, all of whom recognized that the decision could profoundly shift relations and the balance
of power between government and indigenous peoples and between indigenous peoples and
private sector firms.
On appeal, the high court considered three key questions: a) what is the proper test to establish
Aboriginal title and did the Tsilhqot’in Nation meet this test; b) what rights do Aboriginal title
holders possess; and c) if Aboriginal title exists, how does this title impact the jurisdiction of the
provincial government and what legal rights does the provincial government retain in/on
Aboriginal lands.
For the first question, the Court noted that the burden of establishing the title claim rests with
those seeking title. It drew on a 1997 decision, Delgamuukw v. British Colombia, (Delgamuukw
v. British Columbia, 1997) and found that in order to prove title, possession must have begun
before colonial sovereignty and it must be sufficient, continuous and exclusive, taking into
consideration the unique context of group and geography to understand these elements. As the
Court noted:
“concepts of sufficiency, continuity and exclusivity provide useful lenses through which to view the question of Aboriginal title. This said, the court must be careful not to lose or distort the Aboriginal perspective by forcing ancestral practices into square boxes or common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.
Sufficiency, continuity and exclusivity are not ends in themselves, but inquiries that shed light on whether Aboriginal title is established.” (para. 32)
In other words, the courts must strike a balance between the traditional common law tests for
establishing possession and tests that take Aboriginal culture and practices into consideration. In
this case, under the specific circumstances presented, the semi-nomadic bands of Tsilhquot’in
Nation had met the test for Aboriginal title by regularly using lands for hunting, fishing and to
exploit other natural resources.
With regard to the second question, the Court relied on the Delgamuukw case to find that
Aboriginal title “’encompasses the right to exclusive use and occupation of the land held
pursuant to that title for a variety of purposes’ (para. 117) including non-traditional purposes,
provided these uses can be reconciled with the communal and on-going nature of the group’s
attachment to the land” (para. 67). This broad interpretation means that Aboriginal title provides
title holders with rights to enjoy and occupy lands; take decisions on how lands will be used; and
then use, develop and profit from the use of the land. All of these rights are, however, subject to
an overarching fiduciary duty owned by the Crown to Aboriginal groups and to the Crown’s
right to encroach on title in cases that meet the public interest standard established by Section 35
of Canada’s Constitution Act, 1982. In addition, the Court held that Aboriginal title, unlike fee
simple ownership, has other important restrictions:
“[I]t is collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land.” (para. 74)
Thus the government retains a strong interest in the kinds of development that can take place on
these lands and may—though this remains to be determined—have significant voice in decision
making over the nature of economic and other activities on Aboriginal lands.
At the same time, the nature of Aboriginal title means, the Court determined, that governments
and other parties that wish to use titled lands must obtain the consent of Aboriginal title holders.
Without such consent, use will only be permissible if it meets the criteria of public interest
specified under Section 35 of the Constitution Act, 1982.5 In cases where Aboriginal title is
established the government may be required to reassess projects and, in some cases, cancel
projects. In this case, the government breached its duty to consult when it planned for the timber
license and timber removal and did not engage with the Tsilhqot’in bands. To put it more simply,
the Tsilhqot’in decision establishes a right of consent over purposed land use for Aboriginal title
holders.
Finally, with regard to the third question of the role of provincial laws and regulation vis-à-vis
Aboriginal lands, the Court found that provincial laws of general application, such as those
related to environmental protection or forest health do apply to lands held under Aboriginal title
within constitutional limits (those related to Section 35 of Constitution Act, 1982). This leaves in
place the government’s ability to regulate lands consistent with its fiduciary responsibilities.
With regard to the Forest Act, which was specifically crafted to apply to Crown/government land
as well as to lands “to which Aboriginal title had not yet been confirmed.” (para. 114), while the
Court held that the lands with Aboriginal title are not “vested” in the Crown nonetheless, the
Forest Act applies to Crown lands “up to the time title is confirmed by agreement or court order”
(emphasis in original, para. 115). Once Aboriginal title is confirmed then lands are not Crown
lands and so would not be subject to the Forest Act. The Court pointed out that the legislature
could amend the Act to cover these lands subject to constitutional limits.
Addressing a related question, whether the Forest Act is trumped by Section 35 of the
Constitution Act, 1982 which provides specific protections for Aboriginal rights, the Court
pointed to a two-prong test established in the case R. v. Sparrow (R. v. Sparrow, 1990). These
prongs are: a) does the legislation interfere with or infringe the Aboriginal right (in this case to
use, manage, and benefit from the use of native lands); and b) if the legislation does interfere, is
the interference justified? (para. 120). In this case, the Court held that the government did not
possess a compelling and substantial legislative objective when it issued the timber permit. That
is, the economic benefits that might accrue to the government were not economically viable so
5 The three-part standard would require the government to demonstrate that a) it complied with its procedural duty to consult and, if appropriate, accommodate the title holders b) that government actions seeks to achieve a compelling and substantial objective; and, c) that government’s action is consistent with this fiduciary obligation to the group affected.
did not promote a compelling and substantial interest. Nor did the government’s argument that it
was concerned to stop the spread of mountain pine beetles rise and so issued the permit in part to
address this concern rise to this level.
While it falls within the powers of the province to regulate forestry within its borders, forestry on
Aboriginal lands has a “double aspect,” and raises issues of concurrent jurisdiction between the
federal and provincial governments. The Court emphasized the requirement to promote
“cooperative federalism” and so permit generally applicable provincial regulation of Aboriginal
rights (including over land) within noted constitutional limits. In this case, the Forest Act would
apply to the Tsilhqot’in lands unless the law was found to be “unreasonable, [and] impose a
hardship or deny the title holders their preferred means of exercising their rights…” (para. 151),
an issue perhaps to be litigated another day.
And so, the Supreme Court pushed forward the edges of legal rights of Aboriginal peoples in
Canada. The decision has the potential to impact lands in areas where Aboriginal title has not yet
been extinguished. This would cover substantial parts of the country from the Maritime
Provinces in the east to the southern Yukon in the west. The decision may be particularly
important for companies that hold government licenses to develop natural resources. And of
course, it sets the stage for indigenous people to promote the kinds of economic development
that they value.
Canadian courts have, therefore, taken an important step forward by articulating a process to
claim Aboriginal title and by explicitly requiring consent when land and resources located on
Aboriginal title lands are developed. This decision empowers local Native peoples with
expanded authority and decision making power, contributing to enhanced autonomy. It should
lead to direct contracting between natural resource development firms and indigenous people,
creating economic opportunities that local people prefer. The decision does, however, leave
several important questions open. These include: given that the Court found that the government
retains some authority over decision making related to land use on Aboriginal title lands how
will the government determine which uses are potentially harmful to future generations? In other
words, what is the scope of the government’s fiduciary duties to current and future generations?
And, what kinds of infringements of rights on Aboriginal title lands will be found “reasonable”?
Croft on behalf of the Barngarla Native Title Claim Group v. State of South Australia (Croft on behalf of the Barngarla Native Title Claim Group v. State of South Australia, 2015)
In early January 2015, the Barngarla people of South Australia won a 20-year legal battle to
assert rights over 44,500 square kilometers of land and waters—an area that covers mines,
Crown lands, commercial fisheries, three cities and 13 councils. Similar to the Tsilhoqot’in
decision, the court in Australia recognized use rights over the large area and confirmed the
obligation to consult and negotiate directly with indigenous peoples if these lands are developed.
What is critically important about the Barngarla decision is that, unlike Tsilhquot’in it involves a
long-settled area and so creates a precedent for establishing some degree of joint control or
management of places that had recently been considered largely lost to indigenous peoples.
Background to the Cases
The Barngarla case was originally filed in 1996 in Australia’s National Native Title Tribunal as
a claim for Native Title under Section 223 of the Native Title Act 1993. This Act specifies the
process for establishing communal, group or individual title or title rights and interests to land or
waters. These rights and interests can either be common law or statutory. In the case of common
law rights this includes those rights that Native peoples possessed under traditional laws and
customs and include hunting, gather and fishing rights. In the case where Native rights were
compulsorily converted into or replaced by statutory rights these rights are also covered by the
Act, with some exceptions specified in the legislation.
In this case, the original claim was for a large portion of the eastern Eyre Peninsula in South
Australia. After the case was filed, the Native Title Amendment Act 1998 entered into force, so
the proceeding was converted into an application to the Federal Court at which time the size of
the territory claimed was reduced. In 2001 the claim area was reduced again. In 2003 the case
was referred to the Native Title Tribunal for mediation and to resolve overlapping claims of
native title with other Aboriginal groups. It took nearly a decade to resolve overlapping claims,
during which time the size of the Barngarla claim was further reduced to 44,500 square
kilometers and covered land and surrounding waters.
The key components of the claim were as follows: the Barngarla people requested that the Court
recognize their rights to possess, occupy, use and enjoy the area; make decisions about how to
use and enjoy the area; have access to the area; control the access of others to the area; use and
enjoy the resources found in the area; control the use and enjoyment by others of the resources
found in the area; trade and benefit from the use of the resources found in the area; receive part
of any resources taken by others from the area; maintain and protect places of traditional
importance in the area; maintain, protect and prevent the misuse of cultural knowledge that is
associated with the area; and, hold burial ceremonies in the area. This broad request would place
key decision making authority about the future development of the area into the hands of the
Barngarla peoples.
In response, the state of South Australia claimed that the Barngarla people did not have a claim
of Native Title in the city of Port Augusta. Further, the state argued that the Barngarla people had
not maintained the required continuous connection with this area. The Commonwealth of
Australia joined as a party to the case, arguing that the Barngarla people had no rights over
waters beyond the low-water mark of surrounding seas and no rights to trade in marine
resources.
The Decision
In a lengthy decision, Justice John Mansfield of the Federal Court reviewed the standard for
establishing Native Title, outlined in the case Members of the Yorta Yorta Aboriginal Community
v. Victoria (Members of the Yorta Yorta Aboringinal Community v. Victoria, 2002) that there
must be proof that a society “acknowledges and observes rules under which rights and interests
in land are possessed that have normative content and that find their real origins in the same pre-
sovereignty society. The acknowledgement and observance of these normative rules must have
continued substantially uninterrupted from the time of sovereignty” (Croft on behalf of the
Barngarla Native Title Claim Group v. State of South Australia, 2015) (para. 83).
The Court found that based on the evidence presented, the Barngarla people did provide
sufficient evidence to prove that the group had established a continuous existence with the area
and so presented a prima facie case with respect to all but three of the rights claimed. The Court
did not find that a right to trade in the resources of the area was established, nor did it find that
the right to maintain, protect, and prevent the misuse of cultural knowledge associated with the
area was established. Finally the Court did not directly speak to the claim of right to receive a
portion of any resources taken by others from the area. Further, the Court did not find that claims
of rights over certain islands and to certain waters were established based on traditional
practices.
This case is important for several reasons: the Barngarla people successfully established a claim
over a large, densely populated area with long-established European settlements. In the past such
claims were considered very difficult to establish but this decision sets a precedent that may
mean that similar cases move forward, which would allow Native title to co-exist with settler
rights in more densely populated areas. In practice how co-existence will affect development
decisions remains to be determined. However, as with the Tshilquot’in case, this case creates
new economic opportunities for Native peoples based on the use and development of the
resources, including mining resources. New authority and autonomy were granted to indigenous
people which should ensure their participation and engagement with land use management and
decision making. In addition, both cases raise increasingly visible flags for the private sector: if
indigenous people’s rights to consultation and to manage resources are recognized under national
and international law this speaks to the need to improve due diligence related to acquiring land
rights. It also speaks to the need to create participatory consultation and community engagement
practices that work with indigenous and local peoples as business partners rather than as
recipients of corporate social responsibility activities. Best practices need to evolve to ensure that
local rights are recognized, respected and protected.
Other national decisions that extend protection of indigenous land rights
Sawhoyamaxa/Exnet Case
In October of 2014, the Supreme Court of Justice of Paraguay issued a landmark decision related
to indigenous land rights, one that sets an important precedent within the country. The Court
unanimously rejected an appeal from two German ranching companies that challenged an earlier
ruling ordering them to return nearly 14,500 hectares of land to an indigenous group.
Background to the Case
The indigenous group, the Exnet-Lengua people, who live off forest resources, lost rights to land
in the 1990s when cattle ranchers took control of the area, clearing and fencing land for pastures
and claiming it as private property. After being removed from the lands, the Exnet lived in dire
conditions in a 50-meter wide strip alongside a highway in the dry Chaco Boreal region of
northwest Paraguay where they did not have adequate drinking water, access to medical care or
education.
The community originally sought help from the government through the Instituto de Bienestar
Rural to be formally recognized as a legal entity under Paraguayan law, they also requested that
they be given 8,000 hectares of land based on their traditional claims and because the lands had
been taken from them without payment of compensation. However, the government found that
the lands claimed belonged to private owners. A socio-economc analysis of the community was
conducted and a recommendation was issued to begin a dialogue with the private owners and the
community to find some solution to these problems.
The private owners challenged the recommendation. The community raised its own concerns:
they noted that, in violation of national law, they had not been consulted before their land rights
were abridged (Case of the Sawhoyamaxa Indigenous Community v. Paraguay, 2006) (para. 73
(28)). The community then enlarged its claims to approximately 15,000 hectares claiming the
initial request was not sufficient “in light of Article 64 of the new National Constitution of
Paraguay” and requested an injunction to stop further development of the area (para. 73 (29)).
An injunction was issued by the Court of the First Instance in Civil and Business Law (para. 73
(55)). The community also requested that the private owners be requested to make an offer for
sale of the land [to the government] in pursuit of a negotiated settlement. After more legal back
and forth, including a request by the private owners to close the administrative case and a
decision by the government that the lands at issue were being rationally used so the that neither
compulsory sale nor expropriation were not possible under the country’s Agrarian Law and, in
any case the owners were not cooperative, the case was sent back the Paraguayan Institute for
Indigenous Affairs (the INDI) to speed up negotiations.
Unfortunately, this process did not lead to an acceptable agreement and the Sawhoyamaxa
community filed a petition with the Inter-American Commission on Human Rights, claiming that
their rights under the American Convention on Human Rights were being violated. In February,
2005, the Inter-American Commission on Human Rights filed an application against the
government of Paraguay based on this petition. The application asked the Court to determine if
the government had violated Articles 4 (Right to Life), 5 (Right to Human Treatment), 8 (Right
to a Fair Trial), 21 (Right to Property), and 25 (Right to Judicial Protection). The case notes:
“The Community alleged that the State has not ensured the ancestral property rights of the
Sawhoyamaxa Community and its members…this has barred the Community and its members
from title to and possessions of their lands, and has implied keeping it in a state of nutritional,
medical and health vulnerability, which constantly threatens their survival and integrity” (para.
2).
In October 2004, the Commission issued a report that recommend that the government of
Paraguay adopt the necessary measures to enforce the possessory rights and property rights of
the Sawhoyamaxa Community to their lands and to delimit, demarcate and convey title to them
and guarantee their exercise of traditional subsistence activities. Following the response of
Paraguay to the report, the Commission referred the case to the Inter-American Court of Human
Rights (IACHR). The IACHR issued its decision in favor of the Sawhoyamaxa community in
2006. The IACHR found that the group’s rights had been violated, called for the government to
return their traditional lands, pay the community compensation for the lives of 19 members who
died because they could not get access to medical care and create a $1 million development fund
for community members.6
The IACHR gave the Government of Paraguay three years in which to implement the ruling.
However, it was not until 2014 that Paraguay’s House and Senate passed, and President Horacio
Cartes signed, an expropriation law requiring the lands at issue be returned to the Sawhoyamaxa
community. The ranching companies challenged the law’s constitutionality. While the Court
rejected the claim that the law was unconstitutional, it has accepted a second appeal that is based
on the claim that one article of the law (Article 3) is unconstitutional based on the manner of
6 Subsequently a significant amount of this fund was declared to be “missing,”
determining the compensation to be paid to the ranching companies for the expropriation (AQ
Online, 2015). In the meantime, the Exnet have begun to reoccupy these lands.
The IACHR found that the indigenous Exnet peoples had traditionally occupied the area they
claimed, roaming and relying on the land for hunting, fishing and gathering. European settlement
had started in the late 19th Century and some cattle ranching began as early as the early 20th
Century. Following the Chaco War in the 1930s lands additional European settlement took place
and lands were divided and transferred to private owners. Indigenous people became sedentary
farmhands on these properties (para.73(3) and (4)). The court also found that these land were
suitable for the Community to continue its subsistence lifestyle in a sustainable manner (para. 73
(10)).
With regard to the Community claims that their rights to property protected under Article 21 of
the American Convention, and their rights to free, prior and informed consent guaranteed by ILO
Convention 169 to which Paraguay is a signatory were violated, the IACHR found that “the close
ties of indigenous peoples with their traditional lands and the native natural resources thereof,
associated with their culture, as well as any incorporeal element deriving therefrom, must be
secured under Article 21 of the American Convention. . . [t]he Paraguayan Constitution
recognizes the existence of indigenous peoples as groups which have preceded the formation of
the State, as well as their cultural identify, the relation with their respective habitat and their
communal characteristics of their land-tenure system, and further grants them a series of specific
rights which serve as basis for the Court to define the scope of Article 21 of the Convention”
(paras. 118 & 121).
The IACHR went on to note that based on its previous rulings four important conclusions could
be reached: a) the traditional possession of their lands by indigenous people has an equivalent
effect to a state-issued full property title; b) traditional possession of land entitles indigenous
peoples to demand formal recognition and registration of their property title; c) these rights exist
even if indigenous peoples have lost possession of lands or unwillingly left unless lands were
lawfully transferred in good faith to third parties; and d) in cases where lands were unwillingly
lost through lawful transfers to third parties who purchases in good faith, indigenous peoples are
entitled to restitution or to obtain lands of equal quality and size (para. 128).
Because Paraguayan law allowed indigenous people to claim restitution of traditions lands they
have lost under Law 904/81, the court found that Community had the right to reclaim their
traditional lands despite the fact that they by private parties and despite the fact that the
Community was not in possession of the lands and further, that the right had not lapsed. The
government had, in this case, violated Article 21 of the American Convention and that “the
restitution of the traditional lands to the members of the Sawhoyamaxa Community is the
reparation measure that best complies with the restitution in intergrum principle, there the Court
orders that the State shall adopt all legislative, administrative or other type of measures necessary
to guarantee the members of the community ownership rights over their traditional lands, and
consequently the right to use and enjoy those lands” (para. 210). As noted above, the IACHR
required the government of Paraguay to comply with this and other elements of its decision
within a three year period. The government of Paraguay took significantly longer to enact the
necessary legal measures to restitute the Exnet lands however the process was signed into law in
June, 2014 at which point the private owners of the land to be restituted filed their claim.
The Decision
In October 2014 the Constitutional Chamber of Paraguay’s Supreme Judicial Court unanimously
rejected the claim that that Law 5194/14, which expropriated the land held by the two private
ranchers in the Exnet’s traditional territory was unconstitutional. After an extremely lengthy
court battle the Exnet people were found to be entitled to a restitution of their traditional lands,
creating a precedent for other indigenous peoples in Paraguay.
Other Recent Court Rulings in Favor of Indigenous Land Rights—Chile, Colombia and
Malaysia
Recent developments in Chile
Also in October, 2014, the Supreme Court of Chile stopped further development of the El Morro
gold and copper mines, owned by Canadian company Goldcorp and a company called New
Gold, in order to allow for consultation with affected indigenous communities. The mines were
being developed on lands the Diaguita claimed as their sacred ancestral lands and the community
was concerned that the development would pollute local waterways. Overturning a lower court
decision, the Supreme Court suspended the mine’s environmental permit and found that the
Diaguita people had not been properly consulted or informed about the project.
In a similar case, the Digauita have also opposed the development of Barrick Gold’s Pascua
Lama project based on lack of proper consultation and serious concerns around potential
environmental harms. In January 2014 the company was fined by Chilean courts for violating
environmental regulations and not meeting requirements related to water treatment and
management and was fined $16 milllion. In May 2014 12 of 22 Diaguita communities signed a
Memorandum of Understanding (Barrick) with Barrick to make technical and environmental
information that the company held accessible to the communities for analysis. The Diaguita
Huascoaltinos did not signed the MOU and have claimed that Barrick’s operations displaced
them from ancestral territories, violated rights of free and informed consent and so resulted in a
denial of justice by the Chilean government. Meanwhile, in late October, 2014 Barrick
announced that it was suspending construction operations at Pascua-Lama and was not certain
when these operations would resume. Although original estimates for the project put the cost of
development at $3 billion these estimates were $8.5 billion when the decision was taken to stop
construction (The Globe and Mail, 2014).
Recent developments in Colombia
In a ruling reported to be a “first of its kind,” in September 2014 a Colombian court ordered 11
gold mining companies to stop operation in a large (50,000 hectare) area in the northwestern part
of the country and return the lands being used to members of an indigenous group that
traditionally occupied the land, the Embera Katio tribe (Jamasmie, 2014). The court annulled
existing titles and mining concessions and called on the National Mining Agency of Colombia
and the military to “remove people from outside the community who are carrying out mining
activities within the reserve” (World Bulletin, 2014). The court also ordered the government to
provide community members with social services and with a plan of protection. This decision
followed on a 2013 decision that issued an injunction on all mining and exploration activities in
the area based on a failure to consult and protect the Embera Katio. The 2013 decision ordered
the suspension of operations pending a determination of the legality of the mining titles. The
Embera Katio people had been killed and forcibly displaced from these lands by armed groups
and in 2008 the government began issuing mining concessions in the region.
Recent developments in Malaysia
And in early January 2015 in Malaysia the Sadakan High Court declared a land transfer by the
government’s Department of Lands and Surveys null and void because the agency failed to give
sufficient notice to local people who might be able to claim native customary rights to the land
under the Sabah Land Ordinance.7 Under Section 13 of the Land Ordinance the government is
required to issue notice of receipt of an application for unalienated land to those who might have
native customary rights claims over the land but do not possess a registered documentary title.
The case arose from a transfer, in 1995 of a 500-acre parcel to a private company. In 2001, the
government issued a 99-year lease for the land. In 2004, the company began to clear the land for
a palm oil plantation but, while the clearing was underway they found that a local man was
occupying and had planted palm oil trees a portion of the land. In 2011, the company filed a
claim for eviction against the local man. The defendant and his brother counter-claimed the lands
were theirs based on inheritance and the fact that their family had occupied the lands since
British colonial times. Relying on the British North Borneo Treaties of 1881, which emphasized
the importance of recognizing and respecting customary rights and laws to land, the Judicial
Commissioner found that the brothers had proved their customary native rights. Importantly, the
Commissioner found that the Director of the Lands and Surveys Department has a fiduciary duty
to protect the rights of native peoples against wrongful transfers. In a report on the case in a story
on the decision in the January 11 2015 East Malaysian Daily Express, the paper said: “In the
past, massive acreage of customary lands were lost due to a stroke of the pen because insufficient
notice or no notice of land application were brought to the attention of the natives whose
ancestral and customary lands were affected by such applications” (Daily Express, 2015). This
case creates a precedent that should protect native peoples against such losses.
In each of these cases the rights of native or indigenous peoples were upheld in the face of
economic development activities. The claims of the indigenous community rested on provisions
of national law that required notice or consultation. By finding that local or indigenous people’s
7 Sabah is a state in Malaysia.
rights were violated as a result of faulty consultation or failure to notify, these cases represent a
limited but increasingly important strand of decision making—one that is finding in favor of
indigenous peoples and their rights to be involved in a meaningful way with decision making
about their traditional lands. Importantly, these cases are also creating precedent for local or
indigenous people who have been displaced from traditional lands to reoccupy or retain property
which may lead to strong tenure security and autonomy.
Cases of Interest at International Tribunals
Application No. 006/2012 African Commission v. The Republic of Kenya
In 2013, in its first case involving indigenous peoples, the African Court of Human and Peoples’
Rights (AfCHPR) issued provisional measures based on allegations of serious and massive
human rights violations by the Republic of Kenya against the forest dwelling Ogiek people
(African Commission on Human and Peoples' Rights, 2012). At the heart of these claims were
allegations that the government violated the Ogiek’s rights to occupy, use and enjoy their
traditional, ancestral lands. The case may also be seen as posing a critical challenge: how to
balance indigenous people’s rights to occupy, use and control traditional lands and the state’s
role in protecting and conserving scarce environmental resources.
Background of the Case
For centuries, the Ogiek, a minority indigenous community of some 20,000 people, have lived in
Kenya’s Mau Forest Complex. For many decades they have faced forcible evictions and loss of
the lands they depend upon for their livelihood (Purvis, 2013). The situation escalated in 2009,
when the government of Kenya’s Forest Service issued an eviction notice giving the community
30 days to leave the Forest so that the government could create a water catchment area and
pursue conservation goals. The community believed that the eviction threatened their survival,
their culture, their livelihoods, and their religion as the Forest is a sacred space for their people.
The Ogiek, who had been pursing legal remedies in Kenyan courts, filed an application at the
African Commission on Human and Peoples’ Rights claiming that the government’s actions
violated their rights to life, property, natural resources, development, culture and religion, as
guaranteed by the African Charter on Human and Peoples’ Rights. The Ogiek further claimed
that they were not properly consulted during these actions nor were they compensated.
In their application (at para. 5), the Ogiek requested that the evictions be halted, that the
government recognize their historic land rights and issue title to the lands to the community
based on a participatory consultative process, and pay the community compensation for the
multiple losses they suffered (In the Matter of African Commission on Human and Peoples'
Rights v. The Republic of Kenya, 2013). In 2009, the Commission found that the Ogiek
community faced “a situation of extreme gravity and urgency…and risk of irreparable harm”
(para. 20) and requested the government not to engage in further evictions or further harm to the
community.
Based on the serious nature of the claims, the Commission referred the case to the African Court
on Human and Peoples’ Rights. This was the first time a case involving indigenous rights was
brought to the Court (which began operations in 2006) and so should have important precedential
value. In 2013, the AfCHPR issued an interim ruling supporting the Ogiek and ordering the
government to stop land transfers in the Mau and to halt any actions that might negatively impact
the case. Following this ruling, in November 2014 the Court held two days of hearings to gather
evidence on the nature and extent of the alleged harms suffered by the Ogiek and to confirm their
role as traditional conservators of the environment. A final decision has not yet been issued in
this extremely sensitive case.
Communication of Crimes against Humanity in Cambodia
In the first case of its kind, in 2014 a Communication informing the Office of the Prosecutor that
crimes against humanity have been and continue to be committed in Cambodia as a result of
rampant land grabbing by government officials and private business people was filed in the
International Criminal Court (ICC).
According to ICC procedure the Prosecutor may choose to investigate “situations” if there is
information that provides a reasonable basis for believing that a crime that is within the
jurisdiction of the Court has been committed; that the case is sufficiently grave and that national
courts are unwilling or unable to genuinely prosecute the case; and that the case is in the interests
of justice. Should this investigation move forward, which requires authorization from the Pre-
Trial Chamber, it could have important consequences and threaten several governments that have
engaged in forcible dislocation of indigenous and other populations in the name of economic
development. The case also highlights the importance for responsible investors of carefully
reviewing the conditions under which rights to land are acquired and enhancing due diligence
processes, community engagement, monitoring of company activities and grievance processes.
In October 2014, Richard Rogers of Global Diligence filed the Article 15 Communication at the
ICC alleging widespread and systematic violation of land rights of local and indigenous people
pursuant to a state policy by officials of the government of Cambodia, including the military, and
by well-connected business leaders (called “the Ruling Elite” in the communication) (Global
Diligence, 2014). As the communication argues:
“Capitalizing on widespread tenure insecurity resulting from decades of civil war, the Ruling Elite have illegally seized and reallocated millions of hectares of valuable land from poor Cambodians for exploitation or speculation by its members and foreign investors. Rubber-stamped by the corrupt judiciary and civil service, and enforced by armed State security forces, the Ruling Elite have forcibly transferred hundreds of thousands of poor Cambodians from their homes and/or ancestral land. Those who resist eviction have faced brutal violence, trumped-up criminal charges and other forms of persecution.” (para. 6)
According to the Communication these actions amount to a violation of Cambodia’s obligations
under the Rome Statute and constitute crimes against humanity.
The communication outlines a history of pervasive human rights violations over the course of
more than a decade. These violations included illegally seizing large amounts of land from poor
and indigenous Cambodians and reallocating them to the Ruling Elite and those connected to the
Elite. Transfers were enforced, the communication alleges, by military/security forces who used
violence against those who protested the loss of land rights—farmers, forest dwellers and the
civil society or NGO representatives who attempted to help them. The result has been forcible
displacements on an enormous scale, loss of livelihoods, violent attacks, threat of arrest or arrest,
assassinations and other persecution (para. 7). The Communication argues that land grabbing and
associated deforestation has had a disproportionate impact on indigenous peoples whose
livelihoods and ethnic identities are under threat as a result (para. 10).
The particular crimes alleged include forcible eviction and transfer of some 770,000 civilians by
the Cambodian armed services and by private security forces; the murder of opponents, illegal
imprisonment, inhumane treatment and persecution by the Ruling Elite of Cambodians with the
goals of self-enrichment and maintenance of political power. The Communication argues that the
actions were neither isolated nor spontaneous but amount to a pattern of perpetration pursuant to
a state policy.
The communication requests that the ICC conduct a preliminary investigation given the
reasonable basis to believe crimes under the jurisdiction of the Court have been committed; that
the case is admissible under Article 17 of the Rome Statue; and that given the gravity of the
situation there are no substantial reasons to believe that the investigation not serve the interests
of justice. The Communication noted that Cambodian courts are corrupt and subject to
interference from powerful interests and fail to investigate these claims or substantially delay
proceedings and so domestic courts have proved incapable of addressing the issues.
Some 40 NGOs have supported the communication calling on the ICC to conduct the requested
preliminary investigations (World Bulletin, 2014).
While both the AfCPHR case and the ICC communication related to land grabbing in Cambodia
are at early stages they demonstrate litigation strategies that leverage the authority and moral
force of supra-national courts to protect indigenous land rights. These cases, together with cases
at the national level, hold some hope that jurisprudence in other countries will evolve in a similar
direction.
Developments related to Soft International Law
The cases highlighted above represent an admittedly limited, but promising, trend in judicial
decision making at the national level. New cases at international tribunals may create additional
space for indigenous peoples to pursue claims over traditional lands and the resources found on
these lands. These cases are holding governments and other actors accountable for violations of
these rights and are shifting title or returning lands to indigenous peoples. As argued above, this
transfer in the legal control of land and resources should create new economic opportunities for
some indigenous communities and enhance voice and autonomy.
At the same time, this shifting legal landscape creates new obligations for governments and may
reframe the engagement that private sector actors have with regard to the land and resource
rights of these communities. Case law is certainly not the only force driving changing obligations
and standards of engagement. In the past several years two important soft law documents have
been developed that complement—perhaps provide some impetus for—these changes. These
documents are discussed briefly below.
In 2011, the United Nations issued its Guiding Principles on Business and Human Rights
(UNGP, also known as the Ruggie Principles after the Special Representative on business and
human rights, John Ruggie) (Guiding Principles on Business and Human Rights, 2011). The
UNGP, which are voluntary, apply to states and businesses and create a general framework that
encourages these actors to respect and protect human rights. Following its endorsement of the
UNGP in 2011, the UN’s Human Rights Council established the Working Group on Business
and Human Rights whose mandate includes promoting and disseminating the UNGP; identifying
and promoting best practices related to protecting human rights; and building capacity to
implement the principles. The idea is to encourage and support the spread of these norms.
The UNGP endorse the principle that governments should protect against human rights abuses
committed by third parties, including businesses, within their jurisdiction and create clear
expectations related to human rights obligations. In order to operationalize these principles, the
UNGP note that governments should assure that their legal framework allows for businesses to
operate in ways that respect human rights, regularly assess this framework and oversee business
activities that touch on human rights and enforce laws and regulations that call on businesses to
respect and protect these rights, with special attention to these concerns in conflict environments.
States should ensure that access to justice and grievance mechanisms are available and capable
of providing meaningful remedy to those who suffer violations of their rights. States are
encouraged to provide the private sector with guidance on how to respect human rights within
their legal framework and endorse some level of voluntary or mandatory reporting by businesses
of their compliance efforts.
States are encouraged to review their legal framework “in light of evolving circumstances” and
to adjust laws as needed to ensure that human rights concerns are adequately reflected. The
UNGP specifically note the potential need to address land issues in commentary to Section I B
(3): “For example, greater clarity in some areas of law and policy, such as those governing
access to land, including entitlements in relation to ownership or use of land, is often necessary
to protect both rights-holders and business enterprises.”
Business are called on to respect and protect recognized human rights and to take action to
prevent or mitigate any harms to human rights through remedial actions. They are called on to
amend or create policies, processes and due diligence efforts to accomplish these goals. Because
rights to property, livelihoods, and consultation are recognized in several international and
regional conventions, these rights are, by incorporation, a part of the rights that should be
respected by businesses: state-run, public/private partnerships and fully private businesses, no
matter their size. The UNGP point out that special attention may be needed in some situations:
“business enterprises may need to consider additional standards. For instance, enterprises should respect the human rights of individuals belonging to specific groups or populations that require particular attention, where they may have adverse human rights impacts on them. In this connection, United Nations instruments have elaborated further on the rights of indigenous peoples; women; national or ethnic, religious and linguistic minorities; children; persons with disabilities; and migrant workers and their families.” (II 12)
The UNGP have been endorsed by a number of governments and donors, by many civil society
organizations, and by hundreds of businesses. They have been or are being incorporated into
national laws and policies as well as corporate/business policies and practices. Although they are
soft law they are providing important guidance to state and non-state actors, perhaps especially
around grievance mechanisms.
Recent efforts expand the reach and impact of the UNGP include the adoption in October, 2014
by the European Union of mandatory reporting by large companies of human rights reporting
and in response, the release in late February 2015 of the United Nations Guiding Principles
Reporting Framework which is designed to help companies meet their reporting requirements
related to respecting and protecting human rights and remedying any violations (UN Guiding
Principles, 2015). As influence of the UNGP expands private sector disclosures on human rights
and environmental, social and governance information are increasing. In the U.S., Standard &
Poor’s 500 Index companies are increasing reporting on ESG efforts. In 2010 only 19-20% of
index companies reported on these efforts, while in 2012 53% of companies reported
(Governance & Accountability Initiative, 2013). Further, voluntary guidance is changing into
hard law reporting requirements in the EU and as land and resource rights are increasingly
viewed as human rights (derived from the right to property and rights held by indigenous
peoples), states and businesses are expected to change policies, law, processes and procedures to
extend protection of these rights. It is possible that soft law guidance provided by the UNGP may
have as significant an impact on the push to respect and protect indigenous land rights as national
and international court cases.
The other major piece of soft international law that supports more robust recognition of local and
indigenous rights to land and resources is the 2012 Voluntary Guidelines on the Responsible
Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security
(VGGT) (CFS FAO, 2012). The VGGT is a landmark document that expresses broad support for
the protection of the legitimate land rights of people living under customary and informal legal
systems, women, and indigenous and other vulnerable peoples. They were unanimously endorsed
in May, 2012 by 96 member states of the Committee on World Food Security and by the
European Union. Since then, the UN General Assembly, the G20 and the RIO +20 have all
encouraged use of the VGGT. The FAO has developed a series of specialized guidance (on
gender, forests and fisheries) for states and other stakeholders that are interested in implementing
the VGGT. Official donors are supporting implementation efforts to extend the impact of the
VGGT and some private sector business have made statements that suggest they will align
corporate policies with the VGGT.
The VGGT provide a high-level guide to national governments that wish to align laws and
policies to improve land governance, land transparency and land rights. They contain general
principles that, to some extent, mirror the UNGP, in that they ask states and businesses to
recognize, respect, protect (Chapter 4.3, 4.5) and provide remedies (Chapter 4.9) for violations of
the legitimate land rights of women and men. In its 26 Chapters the VGGT addresses (among
other issues) the provision of land services, rights of indigenous peoples and other communities
that rely on customary tenure systems (Chapter 9), informal tenure (Chapter 10), markets
(Chapter 11), investments in land (Chapter 12), expropriation and compensation (Chapter 16)
and conflicts related to land (Chapter 26). Throughout, the document provides a consistent
message: land governance is too often weak and too often discriminatory. Improving formal and
informal land governance systems can help protect people, improve food security, enhance
natural resource management and reduce conflict and many stakeholders, including states, civil
society and the private sector have a role to play in accomplishing this goal.
With respect to indigenous peoples’ rights, it is worth citing the VGGT at some length:
“States should provide appropriate recognition and protection of the legitimate tenure rights of indigenous peoples and other communities with customary tenure systems, consistent with existing obligations under national and international law, and with due regard to voluntary commitments under applicable regional and international instruments” (Chapter 9.4)
“Where indigenous peoples and other communities with customary tenure systems have legitimate tenure rights to the ancestral lands on which they live, States should recognize and protect these rights. Indigenous peoples and other communities with customary tenure systems should not be forcibly evicted from such ancestral lands” (Chapter 9.5)
“States should protect indigenous peoples and other communities with customary tenure systems against the unauthorized use of their land, fisheries and forests by others. Where a community does not object, States should assist to formally document and publicize information on the nature and location of land, fisheries and forests used and controlled by the community. Where tenure rights of indigenous peoples and communities with customary tenure systems are formally documented, they should be recorded with other public, private and communal tenure rights to prevent competing claims” (Chapter 9.8)
“States and other parties should hold good faith consultation with indigenous peoples before initiating any project or before adopting and implementing legislative or administrative measures affecting the resources for which the communities hold rights. Such projects should be based on an effective and meaningful consultation with indigenous peoples, through their own representative institutions in order to obtain their free, prior and informed consent under the United Nations Declaration of Rights of Indigenous Peoples and with due regard for particular positions and understandings of individual States” (Chapter 9.9)
To the extent that they are translated into policies and legislation and enforced, these obligations
create a powerful set of protections for the land and resource rights of indigenous peoples and
other communities that depend upon customary tenure systems. They reflect the long-standing
and hard-fought claims of indigenous groups for stronger, clearer rights to manage, control and
benefit from the use of traditional lands and resources. As such, they are another important
component of the growing trend to empower indigenous communities with land rights and to
enhance voice and autonomy related to decision making over resources.
As more funding becomes available from official donors to implement the VGGT, national
governments may be better able to build capacity to improve mapping, land use planning, land
registration and legal awareness efforts to recognize, respect and protect rights. Indeed, a recent
European Parliament Resolution on land grabbing in Tanzania that supports the land rights of the
indigenous Maasai community of Loliondo identifies ILO Convention 169, UNDRIP, the
UNGP, and Article 17 of the Universal Declaration of Human Rights (on the right to property) as
bases for calling on the Government of Tanzania to:
“immediately implement the VGGT and grant the effective justiciability of the rights enshrined therein; to uphold the first fundamental principle of the Guiding Principles on LSLBI, which includes respecting the human rights of communities and customary land rights and contributes to the responsible governance of land and land-based resources in compliance with the rule of law; and to improve land rights for women, who account for at least half of the workforce in farming and trading, but whose access to property rights and the services that accompany such rights (e.g. access to banks and participation in associations) remains constrained , as well as land rights for vulnerable communities and social groups, such as pastoral communities.” (European Parliament, 2015)
As more private-sector businesses align their policies and practices with the UNGP and the
VGGT, this should provide an additional push (along with case law) that encourages national
governments to improve land governance practices that affect indigenous peoples.
Are we at a watershed moment?
Thus, while the materials presented are admittedly limited, it seems that several forces are
pulling in a similar direction: away from centralized control of land and resources and towards
more meaningful devolution of rights to manage, control and benefit from the use of traditional
lands and resources. As an extensive literature on the management of common pool resources
makes clear, under appropriate conditions, local control of resources can lead to sustainable use,
generating positive economic, social and environmental outcomes. But positive outcomes
depend, at least in part, upon the ability of local women and men, local communities, to exercise
and enforce the new rights they are gaining. Recent court cases in national courts and in
international and regional courts demonstrate that indigenous communities in some countries are
having success claiming lost rights and demanding more meaningful consultation, even stopping
unwanted development activities. As governments and businesses are held accountable for
violations of rights and for harms associated with these violations, this may push changes in
legislation, policies and practices. These new developments, while limited, hint that we may,
indeed be at a watershed moment as different forces create mutually reinforcing trends in the
protection of indigenous land and resource rights.
Conclusion
While there are encouraging signs that indigenous land and resource rights are becoming more
secure in some places, there are many countries where these rights remain weak. It may be that
through the development of supportive precedent, continued use of litigation and increasing
public pressure to reduce harms to vulnerable populations, more positive developments will take
place. The use of international criminal actions to address the most heinous cases of land
grabbing; further developments in national and regional courts to expand the land rights of
indigenous peoples; and growing private sector commitments to respect and protect these rights
provide some hope that the trend is likely to continue and even expand. As technology changes
and provides lower cost, more accessible options to demarcate and register rights indigenous
people are in an increasingly stronger position to identify, claim, or reclaim, traditional lands and
resources. These changes bode well for local and indigenous people. Devolving rights and
improving enforcement can provide a basis for expanded economic opportunity for millions
while also providing for enhanced voice and participation in social, political and economic
arenas.
With a long road still to travel to provide adequate and effective protection for the land and
resource rights of the world’s indigenous people, developments over the past several years
indicate that the destination is, after lengthy and costly battles, a bit closer.
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