Following the United Nations (UN) Permanent Forum for Indigenous Peoples 17th session, ‘Indigenous Peoples’ Collective Right to Land, Territories and Resources,’ held in 2018, it is apparent that the connection between peoples and land continues to be at the center of conflict, hardship, and misunderstandings. The right to lands, territories, and resources is a focal point in indigenous peoples’ struggles across the globe. The lands held by indigenous peoples make up a key aspect of their collective identities and heritages and are therefore culturally inalienable. The territories they have traditionally occupied, and which have shaped their distinct identities, livelihood practices, and knowledge systems, have been submerged into nation-states in which land is allocated through a system of individual property rights. However, indigenous peoples’ land rights arguably comprise both individual and collective aspects. While indigenous peoples often have customary ways of recognizing land and resource rights of individual members or households, the collective aspects of their rights to lands derive from international conventions respecting the right of people to their property and United Nations declarations regarding indigenous people.
In the eyes of the international community, indigenous land titles are collectively rather than individually held. Ancestral lands are connected to indigenous peoples’ cultural, spiritual, and social identities, comprise a foundational aspect of their traditional knowledge systems, and inhere in their physical and financial well-being. Thus, the identity of indigenous peoples as distinct peoples depends on their rights to own, conserve, and manage their own lands, territories, and resources.
The United Nations Declaration on the Rights of Indigenous Peoples (UNRIP) recognizes indigenous peoples’ rights to self-determination, participation in decision-making processes, free and informed consent in relation to any action or event that may impact their rights, and to own and manage their own lands and resources. Indigenous peoples’ rights are further defined in the 1989 International Labor Organization Convention for Indigenous and Tribal Peoples (ILO), which aims to protect their way of life and culture based on their own priorities. Articles 13 through 19 of Part Two of the ILO Conventions contain provisions on land rights for indigenous peoples.
The ideas espoused from UNRIP and the ILO are spreading and expanding through various human rights treaty bodies, such as the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights. These developments in international law and human rights standards support the rights of indigenous peoples to lands, territories, and resources. One example is the recent case of the African Court on Human and Peoples’ Rights on the expulsion of Ogiek people, a hunter-gatherer community in Kenya, from the Mau forest. In finding violations of various rights, the court explicitly stated that the Ogiek had a communal right to their ancestral land.
In 2001, the Inter-American Court of Human Rights (IACtHR) became the first human rights body to interpret the right to property to be understood as a people’s right to communal property, not merely private property. The following year, the African Commission on Human and Peoples’ Rights found that Nigeria had violated the right to property of the Ogoni people following violent attacks and destruction of Ogoni villages. The IACtHR also ruled that a person does not have to be indigenous to the territory they reside on to have right to the land. In Moiwana Community v. Suriname, the IACtHR upheld that the Moiwana Community was entitled to the land they inhabited even though it was undisputed that they were not indigenous to the region. This interpretation was reaffirmed in the case of Saramaka People v. Suriname a few years later.
Some states have recognized the collective rights to lands, territories, and resources with constitutional or legal protections, as well as through direct agreements with indigenous people. These countries include New Zealand, Canada, Norway, Ecuador, Denmark, Indonesia, and the Philippines. In some cases, such as the United States and Australia, land, and territories have been set aside for indigenous people. These developments are welcomed, but even in countries that recognize indigenous rights, there is still progress to be made to narrow the gap between formal recognition and full implementation of laws and policies that ensure these rights. In many countries where rights are recognized, they are not being implemented sufficiently. In some cases, there are contradictory laws and regulations that result in de facto denial of rights. States must be commended for recognizing the rights of indigenous peoples' lands, territories, and resources, yet states must also be pressured into implementing these rights fully.
However, despite advancements, many states have simply not provided official recognition of indigenous people. There are concerns regarding the lack of recognition, particularly in Africa and Asia. There are continuous concerns for the indigenous peoples residing in Central Africa, the Democratic Republic of Congo, Rwanda, and Chad, who continue to face violations of their rights to land, territories, and natural resources. They face many obstacles in terms of economic, social, political, and legal developments that are rooted in their lack of rights to land and natural resources. Violations include those connected to cultural rights, legal recognition, political representation and participation, and a lack of basic human rights. The violence committed against these individuals and communities includes rape, land conflicts, human rights abuses, and expulsion.
These violations are important to acknowledge because it is impossible to achieve the Sustainable Development Goals (SDGs) that are laid out in the UN’s 2030 Agenda for Sustainable Development without fulfilling indigenous peoples’ rights to lands, territories, and resources. To achieve Sustainable Development Goal 2.3 on “secure and equal access to land,” states will need to include the customary rights of indigenous peoples to their lands and resources. To that end, states should work with indigenous peoples to establish a judicial institution within their national jurisdictions tasked to handle lands, waters, and other resources pertinent to indigenous peoples’ rights and ownership.
While there is still significant progress to be made, there are ways to improve indigenous rights to land, territories, and resources. For one, the UN Secretary-General should continuously collect information on abuses towards indigenous people. Building a platform for information and knowledge sharing will provide a basis for recommendations by UN member states that can transcend the rights discussion. Additionally, countries should provide information on the above developments in the collective rights of indigenous peoples and constructive agreements with indigenous people. As the “right to land, territories and resources” is getting further defined through precedent set by human rights courts, having a body of information of the variates of systems and changes would give the courts the opportunity to provide universally applicable answers and outcomes.
Moreover, the Expert Group in charge of SDG Indicators should monitor and report on any changes in land use and land tenure on indigenous peoples’ lands. The indicator currently has two facets to it: one, the percentage with documented or recognized evidence of tenure; and two, the percentage who perceive that their rights to land, property, or other productive resources are recognized and protected. The framework should have an additional indicator - surveying trends and usage of traditional land.
Furthermore, the World Bank is revising its safeguard system and there are acute concerns that their new Environmental and Social Safeguard 7 (ESS7) will allow lands to change ownership from indigenous peoples’ collective territories to individually held ownership rights, despite the World Bank’s recognition of the importance of protecting indigenous peoples’ land rights. Such conversion may generate conflicts, damage to livelihoods, and resource-management problems. The World Bank should make sufficient revisions to alleviate indigenous concerns. While the prospects may seem grim, small changes in policies may have a significant impact on the scope of international instruments.