New York: In 2019, the contribution of indigenous peoples was recognised in part by the Intergovernmental Panel on Climate Change when it highlighted the important role of indigenous knowledge in climate change mitigation and biodiversity conservation.The world’s leading climate scientists recognised that indigenous peoples were some of the best environmental stewards and play a central role in safeguarding more than half of the world’s land, including much of its forests.
According to a World Bank report, “traditional indigenous territories encompass up to 22 per cent of the world’s land surface and … coincide with areas that hold 80 per cent of the planet’s biodiversity, … and 11 per cent of world forest lands are legally owned by indigenous peoples and communities”. Globally, indigenous peoples’ lands intersect with around 40 per cent of all terrestrial protected areas, account for 37 per cent of all remaining ecologically intact landscapes, and encompass more than 65 per cent of the remotest and least inhabited lands on Earth.
The continued dispossession of indigenous lands and resources is among the root causes of political conflicts between indigenous peoples and majority non-indigenous populations.
Stressing that protecting the indigenous people’s rights to lands and territories is crucial for the whole planet, the latest fifth edition of the State of the World’s Indigenous Peoples: Rights to Lands, Territories and Resources notes that indigenous peoples continue to face significant challenges and obstacles in having their land rights be recognised and endure ongoing land grabbing, dispossession and displacement.
While in recent decades a number of jurisdictions have adopted constitutional or legislative provisions recognizing indigenous peoples’ rights to lands, territories and resources and their related self-governance and participatory decision-making rights, the report states that a combination of circumstances gives rise to this wide gap between the formal recognition and actual implementation of land rights.
Indigenous peoples make up around 5 per cent of the global population but account for 15 per cent of the world’s poorest inhabitants. While some States have developed sector-specific national strategies relating to indigenous peoples, to date only a small number of States appear to be developing action plans expressly related to the implementation of indigenous rights to lands, territories and resources.
Citing the example of India, the report published by United Nations Department of Economic and Social Affairs, says while in the country almost 2 million titles have been granted under the 2006 Forest Rights Act, and its consent provisions have helped protect sacred forests such as those of the Dongria Kondh in the state of Odisha from bauxite mining and other extractive industry activity, however, according to the Ministry of Tribal Affairs, state governments have rejected over 46 per cent of community land claims under the Act on “invalid grounds”.
It states that in December 2018, the Indian Ministry of Environment, Forest and Climate Change further undermined the Forest Rights Act by informing the Maharashtra state government that compliance with the Act was unnecessary for in-principle approval of projects such as coal mines in forest lands. “This essentially bypasses the Forest Rights Act’s consent requirement and renders such projects a fait accompli,” it states. It further points out that in March 2019, the Ministry of Environment, Forest and Climate Change issued a draft amendment to the Indian Forest Act of 1927 that would threaten the indigenous forest rights recognized in the Forest Rights Act by significantly increasing “the power and discretion vested in forest officials to govern areas declared as forest lands and … [reinforcing] a trend of summary arrests and prosecution and eviction of forest dwellers”. In November 2019, the Government stated that it was withdrawing its proposed changes to the Indian Forest Act; however, concerns remain that states will replicate the draft in their own legislation. In 2019, the Supreme Court of India ordered evictions of forest dwellers who were refused titles by state governments under the Forest Rights Act.
The report further points out that in India approximately 26 million indigenous people have been displaced for dams, mining operations and protected areas since 1947, with evictions continuing to the present day. Referring to figures provided by the Minister of Tribal Affairs, it says that dams have been the primary cause of displacement, followed by mining and protected areas, and that less than 25 per cent of those displaced between 1951 and 1990 have been rehabilitated. This failure to rehabilitate the displaced and to punish those responsible for unlawful evictions is a global phenomenon and has led to calls by the Committee on Economic, Social and Cultural Rights for “investigations of past evictions and prosecutions for those responsible”, it notes.
Observing that one of the major challenges facing many indigenous peoples seeking to assert their land rights is the militarization or paramilitarization of their territories, the report says indigenous peoples in north-east India are labelled as Maoist Naxalites and treated as criminals under national security legislation, and refers to the Supreme Court of India, which has “criticized the use of schools as encampments by the military or police”.
The report mentions that throughout much of Asia and Africa, the failure of states to recognise the existence of indigenous peoples continues to pose a fundamental challenge to the realisation of their land rights. “It denies these peoples the legal standing necessary to assert their rights vis-à-vis commercial and conservation actors and facilitates non-consensual extractive, hydroelectric, agribusiness, tourism and conservation activities in their territories,” it says. It points out that legislation governing land acquisition, mining and hydrocarbon projects often makes no reference to indigenous peoples’ rights and is enacted without any consultation with them. In many cases, legislative reforms serve to further subordinate rather than give effect to indigenous peoples’ rights.
It mentions that after decades of intense debate and deliberations, international law has recently resolved that indigenous populations are bestowed with peoples’ rights, including the right of self-determination. The United Nations Declaration on the Rights of Indigenous Peoples, too, captures the norm well and underscores that indigenous peoples’ cultures and cultural identities are interwoven with lands historically used, and that they have established rights to such lands.
The report stresses that acknowledgement of such rights carries environmental benefits. “It has been noted that recognising the rights of indigenous peoples to lands, territories and resources promotes the protection of ecosystems, waterways, biological diversity, and the general maintenance of natural resources. Respect for such rights can actually contribute to the reduction of carbon emissions from deforestation,” it says, and claims that the forced emigration of indigenous peoples from their traditional lands — because of either the taking of those lands or the environmental degradation caused by resource extraction projects — has had an overall negative impact on indigenous cultures and social structures. Many of these projects have provided little or no compensation for those forced to relocate, it notes.
“This problem is reported to have had an especially negative effect on Adivasi women, who have apparently experienced the loss of social, economic and decision-making power when removed from their traditional territorial- and forestry-based occupations,” it says, and adds that non-indigenous migration into indigenous territories and its related consequences also have a negative effect on indigenous social structures. (Examples identified of non-indigenous migration into indigenous lands include illegal settlement by loggers or miners, the influx of non-indigenous workers and industry personnel brought in to work on specific projects, and the increased traffic into indigenous lands owing to the construction of roads and other infrastructure in previously isolated areas). It calls upon States to ensure that fair and effective grievance mechanisms are available and accessible to indigenous women so that they have a way to report violations of their rights to lands, territories and resources and pursue justice.
The report further refers to the Human Rights Committee, which has underlined that when an infringement has a significant negative impact on the pursuit of a traditional livelihood or other culturally based land use, it is strictly prohibited.
The report advocates recognition of indigenous rights to lands, territories and resources for political stability, economic growth and sustainable development at the broader global level. It refers to studies that have established lower deforestation in forests that are inhabited by indigenous peoples and in which their relevant rights are recognised. It says evidence of the relationship between indigenous peoples and their lands, territories and resources suggests that acknowledgement of and respect for indigenous rights in this regard would likely be conducive to promoting the Sustainable Development Goals, 2030. In the broad and inclusive development process leading up to the adoption of the 2030 Agenda, indigenous peoples had participated as one of the nine Major Groups consulted. The 2030 Agenda are particularly relevant for indigenous peoples because they address many of their key priorities, including securing land rights and ending poverty and hunger (SDGs 1 and 2), ensuring social security, health and education (SDGs 1, 3 and 4), strengthening environmental sustainability (SDGs 12, 13 and 14), promoting inclusive and peaceful societies and reducing inequalities (SDGs 10 and 16), and overcoming discrimination and inequality through special measures (SDGs 5 and 10).
Offering a wide-ranging perspective on indigenous peoples’ rights to lands, territories and resources, analysing legislation and agreements at the national and international levels as well as customary law, the report refers to the fact that much of the world’s non-commercially exploited land and many of its remaining mineral and forest resources, rivers, fossil fuels and sources of renewable energy are found in or around indigenous peoples’ territories. However, the extractive, agribusiness, infrastructure and conservation sectors hinder the realisation of the rights of indigenous peoples, and refers to the estimation that that over 50 per cent of the world’s remaining mineral resources targeted by mining companies are in customary lands claimed by indigenous peoples. For copper and uranium resources these estimates increase to 70 per cent, it points out.
The report stresses that for setting up an industrial project in an indigenous community’s property, territories and resources, even if such project simultaneously meets the foreseeability, necessity/genuine societal aim and proportionality tests, multiple sources of authority provide, there is still an obligation to consult the indigenous community. This obligation applies irrespective of whether the impact of the industrial project is in itself severe enough to amount to a material breach of the property right, according to the report.
The report recommends among other things, that states should
- Establish effective, accessible and affordable mechanisms for effectively identifying and demarcating indigenous traditional lands, and that to achieve the same end, states should support indigenous efforts to map traditional lands;
- Be guided by international law criteria for the identification of indigenous peoples, including the criterion of self-identification, and recognize their inherent rights, irrespective of the nomenclature used at the national level;
- Implement legal decisions on indigenous rights to lands, territories and resources and provide the necessary resources for their operationalisation.
- Include the recognition of customary rights or tenure of indigenous peoples to their lands and resources in their data on secure land tenure rights in SDG reporting.
– global bihari bureau
