Thank you to all the Conversation Leaders for their time and commitment to taking part in this important conversation. Please take a moment to learn about the conversation leaders by clicking on their profile photos.
Below is a list of questions to serve as a starting framework for the discussion in this thread:
- How should disputed territorial borders between indigenous peoples be resolved?
- How have you been able to leverage legal frameworks for advocacy efforts? What are the national or international presidents used? (e.g. laws, conventions, agreements, treaties)
- How do competing legal frameworks pose a challenge to land rights for indigenous peoples?
- What tactics, resources or tools have been effective at lobbying for change?
Additional talking points in this thread: United Nations Declaration on the Rights of Indigenous Peoples, rights-based approach, housing rights, women’s rights.
Brazil is an illustrative example of a country where its indigenous peoples are no longer struggling to have their rights recognized but to be implemented. While there is a stark contrast between the reality on the ground and the rights enshrined in the national constitution, the ratification of international conventions, in turn, have had little practical impact in favor of the indigenous communities.
The country's Federal Constitution makes mandatory that indigenous lands are demarcated, defended and monitored. Concerning the ILO Convention 169, Brazil ratified in 2002 and enacted it through a presidential decree in 2004. Convention 169 establishes, among other things, that indigenous and tribal peoples have the right to be consulted in a free, prior and informed manner about state actions that may affect their property or rights.
Not only Brazil has consistently failed to fulfill its constitutional duties, but also the agribusiness coalition within the National Parliament has advanced its offensive to assault indigenous rights through the so-called PEC 215 - Proposed Constitutional Amendment 215 – which, if approved, will transfer the decision-making powers over demarcation of indigenous territories to the Brazilian National Congress, largely controlled by the agribusiness lobby. Furthermore, ruralist congressmen have intensified the use of racist and hate speech, inciting hatred and violence against the indigenous peoples, their leaders and allies in all regions of the country.
In addition to this picture, the development-driven mentality of the Brazilian state and fundamentalist court rulings have brought the overall situation of native populations in Brazil to a calamitous stand. Against a backdrop of murders, torture, arbitrary arrests, beatings, rapes, land-grabbing, high rates of child mortality and suicide, deforestation, destruction of fauna and daily threats, indigenous populations in Brazil are struggling for their very survival.
When it comes to advocating for indigenous land’s rights in Brazil, the country’s constitution and the ILO Convention 169 do provide for a legal framework that underpins pro-indigenous claims. Enforcement and political will, on the other hand, seem to demand public awareness and thus pressure from all sectors of society.
Fernado,
I recently read an update by Greenpeace that illustrates your point regarding the lack of implementation for recognized indigenous land rights.
In recent years there has been a tremendous increase in the use of litigation as a way for indigenous peoples to ensure that national and local regulations do respect and protect their fundamental rights to land and natural resources. In parallel to the emergence of an international and regional jurisprudence on indigenous peoples’ land rights, there is an increased used of national courts as a place to seek remedies and recognition by indigenous peoples. In the last decade there has been some important cases at the national levels, including rulings form courts in Botswana, South Africa, Malaysia, or Belize for examples. These are only illustrations as globally, indigenous peoples are increasingly using courts to challenge their forced dispossession and removal. However, it also appears that using courts has limitation, it is a lengthy and technical process, and implementation is usually poor. Do you have comments and examples to share on the use of litigation as a positive tactic for navigating laws and policies?
In Mexico, recently occurred an interesting case. This may, the Juba Wajiín indigenous community in Guerrero announced a landmark victory against mining companies seeking to engage in subterranean gold extraction on their land. In 2011, the community was that 80 percent of its territory had been awarded to two mining companies without the knowledge or consultation of the community.
Upon learning of the deal, the community of Juba Wajiín initiated a legal challenge seeking to cancel the land concession which had granted permits to the mining companies. Using an injunction, the community asked the Supreme Court of Justice of the Nation (SCJN) to explore the constitutionality of the Mining Act, which does not mandate that communities be consulted before mining rights are distributed by the state. However, consultation is a right of indigenous peoples as established by Convention 169 of the International Labour Organization (ILO), an agency of the United Nations (of which Mexico is a member).
In October 2015, when demands of the Juba Wajiín were about to be reviewed by the Supreme Court, the two mining companies pursuing the land, Hochschild and Zalamera (Peruvian and Mexican respectively) simultaneously gave up their permits to the land previously granted by the government.
Community used video in their fight. Here it can be watched:
Thanks for sharing this video and the Juba Wajiin story.
While fighting for FPIC is an important immediate step, I have always felt the international community is too passive in advocating for what should be the real rights of communities - ownership of the resources itself. National constitutions and laws that do not recognize indigenous ownership of land and the resources attached to that land are based on dated notions of national sovereignty and self-determination. It is time to change the orientation of the debate.
Thanks for your comment Tiernan Mennen, this is indeed touching on the key issue of ownership of the resources. As you said under international law, the predomiant view is still of State sovereignty over natural resources, even though there is some ambiguity in the legal framework since under human rights law peoples have the right to freely determine the use of their natural resources. Outside the rethrorical contradition of international law on this issue, it seems that we are witnessing the emergence of agreements on benefit sharing and co-managment of resources. I wonder if peoples could share with us good and bad examples of these agrements on the use of the resources located on indigenous territories. Do these agreements provide 'real' control over the resources? Are there any good 'tactics' to learn on how to challenge the 'too passive' attitude' towards pushing for ownership rights?
Thank you for your comment. Totally agree. In Mexico Constitution recognize social-collective property of land, this refers to rural communities, including indigenous, as a result of the Mexican Revolution (1917). Unfortunately, secondary laws include articles that favors private interests. This is why tactics that include strategic litigation, such as the Juba Wajiin case, that challenges the constitutionality of these articles have proven to be effective.
Because of the recognition of social property of land, other legal tactic that has proven to be effective in Mexico is the use of agrarian law, wich protects the right to collective property of land mainly via the right to information and consultation in assembly. Number of cases have been won by indigenous communites using this tool, where again permanent organization and information of the groups has been the main factor contribuiting to this.
Nancy,
Thank you for sharing the Greenpeace update. I strongly support the initiative to call on international companies to withdraw their supports that would make the building of the dam possible. Against a background of inefficiency or/and lack of political will of the Brazilian government to fulfil its constitutional duty to demarcate indigenous lands, the role that NGOs play in promotion and protection of indigenous rights in Brazil is vital. I will share later other successful examples to illustrate this.
In regard to the questions raised about litigation processes as tactic for navigating laws and policies to succeed in preserving indigenous land rights, there is an interesting paper by Anne Skjævestad (2008) which I recommend.
The author writes about the famous case involving the construction of a hydroelectric dam on the Bío Bío River in Southern Chile, which caused the forced relocation of 500 people pertaining to Mapuche-Pehuenche communities and the flooding of their ancestral lands.
Although the outcome of the litigation was unsuccessful – most of the lawsuits filed by the Mapuche litigants were ultimately lost and construction of the dam was completed – the author argues the value of litigation as a strategy may be assessed in terms of the broader impact it had on Mapuche mobilisation and on public debate. According to her, "litigation has had the effect of stimulating social mobilisation, creating awareness and consciousness among the Mapuche, drawing attention to the Mapuche cause from the media and human rights organisations and influencing public discourse on indigenous land rights".
Based on other examples around the world, I agree with the author that litigation may have a positive impact on policies on indigenous land rights regardless of the outcome of a case in court. The development of significant jurisprudence with regard to indigenous peoples’ rights to lands, territories and resources is one of the strengths of this tactic.
I've read the comments from Jeremie and Fernando on litigating land rights with great interest. We should not forget that litigation is just one of the tools that are available to seek the protection and enforcement of indigenous land rights and, even if successful, a legal judgment or ruling is just the start of the journey towards implementation of those rights. National and local advocacy and lobbying will often then be key to securing the implementation of that ruling. MRG has learnt from work with the Endorois and the Maya of Belize that a holistic advocacy and community empowerment strategy that complements any litigation needs to be developed at the same time as any court action. This strategy should be driven by the needs of the community and the situation on the ground, and should be adapted to changes in the legal and policy environment. It should include continuous community engagement and outreach, to ensure indigenous peoples are fully involved and consulted at all stages of the litigation and that accompanying advocacy takes into consdieration their needs and views, and also incorporate capacity building, such as paralegal training or the establishment of human rights monitors within the community itself. Indigenous communities need to be central to litigation which concerns them, and advocacy and community engagement should not stop when and if a successful ruling is delivered. This may require a considerable change in thinking on the part of lawyers in particular.
Can anyone suggest other issues which can be taken into consideration when seeking to protect indigenous land rights, and/or provide successful examples?
Lucy,
Thank you for your comment regarding "continuous community engagement and outreach... and establishment of human rights monitors within the community itself" among the vital supporting tactics to litigation.
As I mentioned in this post, consultations are necessary and vital to FPIC but pose one of the significant challenges facing indigenous communities in terms of the resources needed for consultations.
I found this video inspiring, that despite the governmental tactic of labeling those defending their land rights as "terrorists", they succeeded in organizing a “good faith consultation” to assert the community’s right according to international law in the capital of the Quiché Department held in 2012. More than 27,000 people from many indigenous communities participated. They delivered a resounding “NO” to extraction and exploitation in their territory, particularly large-scale mining and hydroelectric projects, by asserting that their land rights are a protection of life itself. The short video shares both the challenges and accomplishment in mobilizing the community to gather for the consulation.
What other tactics have been effective in mobilizing indigenous communities to assert their land rights?
Hi Lucy,
I think that the case you as Minority Rights group are supporting in Africa, the African Commission of Human and Peoples’ Rights v Kenya (the ‘Ogiek case’) is quite relevant for this discussion. The Ogiek are an ethnic group which has inhabited the Mau Complex forests, located in Kenya’s Rift Valley. The progressive destruction of Mau Forest dates back to the colonial era and, recently, logging activity has caused significant damages to the environment and population, among them to the Ogiek. Moreover large parcel of Ogiek’s land has been converted to flower farming and other cultivations. This is not the first time that the Governments have tried to evict Ogiek from their lands in violation of the basic human rights. The case, if successful, would be an important landmark for the recognition and protection of IPs in Africa.
Very interesting topics in this thread.
Nancy, this short video you shared is inspiring indeed! I didn't know about this case in Guatemala. It renews the hope.
When it comes to tactics to mobilize all stakeholders (especially the most affected) I am particularly keen on large international coalitions. I am sure you all know and perhaps are even part of the Land Rights Now Coalition. Given the ambitious goals of the global call and the huge number of organisations involved, I do believe that such a massive mobilization can help - among other things - in informing indigenous peoples and local communities about their rights and tactics to overcome the threats that they endure.
In the global call you can find their goals by 2020 as:
7. All Indigenous Peoples and local communities commit to:
Strengthen their institutions, capacities and movements to secure and defend their land rights
Assert and exercise the right to free, prior and informed consent, inclusive of traditional leaders, men, women and youth, on matters relating to lands, territories and resources.
Realize women’s equal participation in the defense and enjoyment of rights to lands, territories and resources.
Mobilize and build alliances to address threats to Indigenous Peoples and local communities’ lands, territories and resources.
Protect and promote traditional knowledge and customary sustainable use practices and resource management.
Carry out gender-sensitive participatory community mapping and community-based monitoring relevant to land tenure, land use and self-determined development.
Revitalise and strengthen Indigenous peoples’ and local community gender-sensitive governance and institutions, their cultures and languages.
I am intrigued about usufructuary rights (right to hunt, fish and gather wild rice) distinguished from actual land rights. In a 1999 decision, the US Supreme Court held that the Chippewa Indians did retain their usufructuary rights to lands ceded under a treaty made between the United States and the Chippewa in 1837 (Minnesota v Mille Lacs Band of Chippewa Indians).
Do others have examples of treaty rights being successfully leveraged for protecting Indigenous land rights?
There has been a few cases specifically focusing on usfructuary rights in Canada as well.
For example, this includes the case Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) in 2005. In this case the concerned an indigenous nation who was not consulted by the Minister of Canadian Heritage in a decision to build a winter road through the Mikisew Reserve within the boundaries of Wood Buffalo Park. The Mikesew Cree are in Northern Alberta and were signatories to Treaty 8, which promised them the right to hunt, fish and trap in the region.
This is only an illustration as there are other cases touching on usfructuray rights. There is a relevant list of documents avaliable on the issue aavailiable here:
http://www.alrc.gov.au/publications/34.%20Hunting,%20Fishing%20and%20Gat...
Berta Caceres' story exposes how vulnerable is the condition of HRDs in Central America. It is very interesting that you mention the Beta Cecereres Human RIghts in Honduras Act. This is a great incentive to bring justice and I hope the bill will be soon enforced.
I would also like to know about other public policy like this.
the same is true in Ethiopia, because antiteror law is being used to silence citizens of idea and human concern further more, trained killers are also instruments of human right violation and expropriation of citizens means of livelihood I.E land, home and working capital and place. every evil is being comited in the name of legal proceeding hence, We are having a country where rule of law is substituted by rule of men disguised under rule of law.
Having community maps can work .This helps clearly demarcate the territories of Indigenous Peoples and may protect them from exploitation.Some communities such as pastoralists have developed calendars which indicate their whereabouts throuughout the year.
There has been cases where compensation has been given to Indigenous Peoples but these compensation ends up in many case being misused and not being of benefit.An example is compensation of 400,000 given to some Indigenous People in Embobut , many could not buy new plots of land due to high cost of land , others once they get money develop new lifestyles and end up wasting the oney.
In some instances there has been cases where once compensated , a head of a family takes off with the money only to come back once the whole amount has been squandered.This makes the family get deeper into poverty.When Indigenous Peoples get evicted , they are not taken through financial literacy and investment training, this one of the reasons as to why they are unable to cope with the " newfound financial wealth".
Some indigenous people may lack identify cards , this deters them from getting any form of compensation.This is mainly because the identity card is used as a document for confirming legitimacy.Conversations with community members in Cherangani Hills confirm that many widowed women were excluded from compensation because they did not have identity cards.