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Winning Back the Land: Indigenous Peoples and International Law

By: Claudia Dessanti

The relationship that indigenous peoples’ have with their land goes far beyond its monetary and productive value. Land is both a fundamental aspect of the their identity and a necessary means for their cultural and physical survival. 

Since the 1970s, the transnational indigenous movement has pushed for greater recognition of their rights on international fora. Gradually, their efforts have produced treaties, UN bodies, and a series of domestic constitutional reforms. Not surprisingly, obtaining the right to access traditional lands forms an integral part of this struggle.

The indigenous right to collective land ownership is affirmed by the two main international legal instruments on indigenous peoples’ rights: the International Labour Organization (ILO)’s Convention No. 169 (C169), and the United Nations Declaration on Indigenous Peoples (UNDRIP). Access to traditional lands has become widely recognized as a fundamental indigenous right.

Historically, these lands were taken from indigenous peoples around the world using a combination of force, threats, and deceit. In theory, states agree that what sets these communities apart from other minorities under international law is their special privileges, including land rights, that result from this history.

Nonetheless, there remains no legal obligation on most states to implement their land rights domestically. UNDRIP is not legally binding, and C169 has only been ratified by twenty countries (not including Australia, the United States, Canada, and New Zealand – all of which have significant indigenous populations).

James Anaya, former UN Special Rapporteur on the rights of indigenous peoples, claims that certain minimum standards concerning indigenous land rights have made their way into customary international law. If true, this makes all states automatically bound to enforce them. Unfortunately, his conclusion may be premature. In order for something to be considered customary international law, it must for one thing be practiced by all (or nearly all) states. This is certainly not the case for indigenous land rights.

In fact, state practice varies wildly in this regard. Some states, like Vietnam, currently do not recognize land ownership for any individuals or groups within their territories, thus preventing indigenous peoples form making land claims at all. Others, including Cambodia, Russia, and Ecuador, recognize indigenous land ownership in principle but have yet to establish systems of implementation.

On the other hand, many Latin American countries do have mechanisms for enforcing indigenous land rights. Panama, for example, established the National Directorate for Agrarian Reform in 2008 to settle disputes involving challenges to applications for collective land ownership titles. Although criticized by the Human Rights Council as inefficient, this is arguably better than no system at all.

Inconsistent state practice is true even among Nordic countries, which share the same indigenous community (the Sámi). In Norway, the Finnmark Act of 2005 successfully transferred 95% of the landmass of Finmmark County from the state to local ownership. In contrast, Swedish courts make it extremely difficult for the Sámi to obtain ownership by requiring proof of a minimum of ninety consecutive years of use of that land. Finally, in Finland, ninety percent of Sámi homeland is legally owned by the government.

The point here is not that countries should all adopt the same legislation. National differences may be in part a result of the different needs and desires of the indigenous peoples in each of these countries. On the other hand, there is no doubt that many of them face similar problems. For instance, indigenous communities in Scandinavia, Panama, and Asia have all complained that hydroelectric projects have altered their traditional lands. More importantly, it is the degree of compliance that varies.

Clearly, there is a fundamental lack of consensus about the minimum standards of indigenous land rights. Despite being formally accepted by 148 states, UNDRIP does not indicate agreement on what particular obligations states have. The Canadian government, which refused to agree to UNDRIP until 2010, continues to express concerns with several of its provisions, including those concerning land rights.

Without legally binding standards, domestic implementation is bound to vary. At the same time, variation in state practice makes it clear that achieving international agreement on such standards is unlikely to happen anytime soon.

There is no doubt that indigenous peoples have come far closer than ever before to achieving internal self-determination. Yet there is also no denying that these groups continue to face marginalization and exploitation in the territories in which they live.

Granting access to traditional lands would be a major step towards correcting this trend. The key is greater convergence in states’ policies, and the establishment of legally binding standards to hold them accountable. These two objectives go hand in hand. Given the pace at which the international human rights regime has evolved in recent decades, it would not be unreasonable to expect progress in this regard.

 

Claudia Dessanti is a third year student pursuing a specialist in International Relations at the University of Toronto.

Featured Image: “New Zealanders celebrate New Zealand’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples” by Broddi Sigurðarson is licensed under CC BY 2.0

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