Asia

Indigenous & Community Land Rights

Topics and Regions

 

For centuries, Indigenous Peoples and local communities (IPLCs) have held, used, and depended on land for food supplies, cultural and spiritual traditions, and other livelihood needs. Historically, community land was commonly governed under customary tenure systems, which have long standing origins in the norms and practices rooted in the community and often go back centuries. Meanwhile, governments often considered community land areas as vacant, idle, or state-owned property.  Statutory recognition and protection of indigenous and community land rights continues to be a major challenge. While it is estimated that as much as 65 percent of the world’s land is governed under customary tenure systems, research by Rights and Resources Initiative (RRI) shows that that Indigenous and local communities are estimated to have formally recognized land rights to only 18 percent of the world’s land.[1]

The gap between lands formally recognized and land tenure arrangements that actually exist on the ground continues to be a significant source of underdevelopment, conflict, and environmental degradation.[2] Strong rights to land are vital for Indigenous Peoples and local communities. When community land rights are weak, such areas are vulnerable to land grabbing, expropriation without compensation, and encroachment by outsiders.[3] Without secure tenure rights,[4] meaning rights that are enforceable and recognized by the government and others, IPLCs are at risk of poverty, poor health, and human rights abuse. Securing community tenure rights is not only crucial from a human rights and socio-economic development perspective, it is also necessary to mitigate climate change, foster sustainable development, and promote peacebuilding across the globe.[5]

 

Legal protection of Indigenous and community land at the international level

 

There are at least four major international instruments that call for the respect and protection of indigenous and community land rights: International Labour Organization (ILO) Convention 169 (Indigenous and Tribal Peoples Convention) (1989),[6] the Convention on Biological Diversity (1992), the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (2007),[7] and the Voluntary Guidelines on the  Responsible Governance of Tenure of Land, Fisheries, and Forests in the Context of National Food Security (the VGGTs) (2012).[8] Additionally, the World Bank Environmental and Social Standard 7, International Finance Corporation (IFC) Performance Standard 7, and other policies enacted by multilateral institutions require borrowers of funding for development projects to respect the tenure rights of Indigenous Peoples.

The International Labour Organization (ILO) is an agency of the United Nations dedicated to improving working conditions and promoting human rights for people around the world.[9]  ILO enacted Convention 169 on Indigenous and Tribal Peoples in 1989. ILO Convention 169  is a legally binding treaty which calls for states recognize and protect the land ownership rights of indigenous and tribal people.[10] Additionally, Article 16 of ILO Convention 169 states that “where the relocation of [indigenous and tribal people] is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent.” Indigenous rights to Free Prior and Informed Consent (FPIC) has since been established in UNDRIP, the VGGTs, included in the land policies of several major companies.[11] However, few countries have incorporated FPIC into their national laws (see section below on community protection at the national level).[12] While ILO Convention 169 is binding on state actors that ratify the Convention, only 22 countries have ratified it so far (most of these 22 countries are in Latin America).[13]

The Convention on Biological Diversity aims at promoting the sustainable development of the earth’s plants, animals, and people.[14] This Convention was signed by 150 governments at the Rio Earth Summit in 1992. Article 10 of the Convention states that each Contracting Party shall, as far as possible, “protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.” The Convention is legally binding, and there are currently 193 parties to the convention.[15]

UNDRIP was finally adopted in 2007 after the United Nations Working Group on Indigenous Populations negotiated and developed its contents for over 25 years. UNDRIP emphasizes the right “to lands, territories, and resources which they have traditionally owned, occupied or otherwise used or acquired...constitute(s) the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.”[16] While UNDRIP is not a legally binding instrument under international law, 143 countries voted in favour of its adoption. At the same time, the Australia, Canada, New Zealand, and the United States voted against the adoption of UNDRIP.

Section 9 of the VGGTs establishes principles on Indigenous peoples and other communities with customary tenure systems. Section 9.4 establishes that “States should provide appropriate recognition and protection of the legitimate tenure rights of indigenous people and other communities with customary tenure systems, consistent with existing obligations under national and international law.” Section 9.3 of the VGGTs also calls for states to meet their obligations established under national laws as well as ILO Convention 169, the Convention on Biological Diversity, and the UNDRIP. While the VGGTs are not legally binding on state actors, they are increasingly accepted by governments, companies, civil society organizations, and other stakeholders as the new international standard on land tenure.

For secondary sources and news articles on ILO Convention 169, UNDRIP, the VGGTs, and Indigenous and community land rights, Iconsult the Land Library: https://landportal.info/search/all/indigenous%2520rights

 

 

 

Legal protection of indigenous and community land at the national level

 

While national governments are increasingly recognize the tenure rights of Indigenous Peoples and local communities, there remains ample room for improvement. According a study conducted by the Rights and Resources Initiative in 2015, only 18% of the world’s land is legally recognized as owned or controlled by Indigenous Peoples and local communities.[17] The study  measured community tenure rights in 64 countries, constituting 82 percent of global land area.  It concluded that, of the countries assessed, 23% of land in Latin America, 16% of land in Sub-Saharan Africa, and 26% of land in Asia is either owned or controlled by Indigenous Peoples or local communities.[18] On Land Book, RRI’s forest tenure data is available and shows the percentage of forest areas legally recognized as owned or controlled by Indigenous Peoples and local communities"

LandMark, an online mapping platform, contains a set of indicators that measure the extent to which Indigenous and community lands are recognized and protected by law. LandMark’s data analyzes national legislative and regulatory legal frameworks for over 100 countries.[19] The LandMark legal indicators show that countries in Africa and Latin America have the strongest laws protecting indigenous land rights while the Middle East lags behind.[20] According to the World Resources Institute, “out of the countries with highest scores on the LandMark indicators (i.e. countries with the highest level of legal security), six are in Latin America (Bolivia, Colombia, Nicaragua, Panama, Peru, and Venezuela), four are in Africa (Burkina Faso, Tanzania, South Sudan, and Uganda), and one in Asia (Philippines).”[21] The LandMark indicators on the legal security of indigenous and community land are available on Land Book.

Few countries have incorporated the right to free, prior and informed consent (FPIC) in their national laws, as shown by the indicators on LandMark.  Currently, Australia, Panama, Colombia, Philippines, Peru, South Africa, Taiwan, Venezuela have enacted national level laws that provide strong rights to FPIC or broad consent requirements. However, many other countries have not incorporated this internationally-recognized indigenous right into national laws. This is problematic given that up to half of the documented cases of major land deals since 2000 involved land claimed by Indigenous Peoples and local communities, according to forthcoming data from the Land Matrix Initiative.[22] Research by Forest Peoples Programme shows that land deals are often made without properly recognizing and implementing community rights to FPIC.[23]

 

Current Issues

 

The Global Call to Action on Indigenous and Community Lands, also called the Land Rights Now campaign, launched in 2016 and aims to double the amount of land legally recognized as owned or controlled by Indigenous Peoples and local communities by 2020.[24] The Land Rights Now has campaigned for land tenure reform in Liberia, and more recently launched campaigns in Australia, Honduras, India, Peru, Mozambique.[25]

Progress towards securing Indigenous and community tenure rights has been made in some countries. In Kenya, for instance, a new Community Land Act passed in September 2016 which more clearly defines the process for achieving formal recognition, but still requires that most community land remains held by county governments until communities secure collective titles.[26] Australian courts recently awarded Indigenous Peoples $3 million in compensation for the extinguishment of their native titles.[27] To help secure community tenure around the world, the Swiss government and other donors launched the International Land and Forest Tenure Facility in 2016.[28] This unique institution provides grants to advance land and forest tenure security and the rights and livelihoods of Indigenous Peoples and Local Communities.

But there is still a long road ahead. In many countries, the process for achieving formal recognition is slow and burdensome for Indigenous Peoples and local communities. In Peru, for example, communities must clear 27 bureaucratic hurdles to achieve a formally recognized right, and the process could take over a year. [29]  Legal processes for achieving formally recognized rights can often be difficult to access, time-consuming, and expensive for communities. For instance, when the law requires communities to register their customary tenure rights, they often must decide on and demarcate clear boundaries around their land, obtain approval from land surveyors and other officials, and satisfy other cumbersome requirements.[30] In effect, registration may erode the customary governance structures  if, for example, the requirements entail establishing boundaries and establishing governing bodies that were not previously existent when land was managed under the communities’ customary tenure system. In India, the process for registering customary forest lands under the Forest Rights Act (2006) has experienced significant delays. According to RRI,  as of 2015, it was estimated that only 3.4 million hectares were formally registered in India.[31] However, approximately 40 million hectares of forest land, an area estimated to be populated by 150 million people (90 million tribal people), remain eligible for registration under the Forest Rights Act.[32]

New legal reforms for streamlining the recognition process are being considered by parliaments in Liberia, Myanmar, and other countries, but the passage of new land laws in these countries is still pending. A working group of Liberian civil society organizations has campaigned for the passage of the Land Rights Act, which would more clearly define customary lands held by communities, and that failure to pass the Act could “plunge Liberia into violence and conflict.”[33] Regarding land tenure reform in Myanmar, Roy Prosterman, founder of Landesa, has said that “a rare opportunity is knocking [in Myanmar], to directly benefit as many as four million of the poorest families on earth, and beyond that to support broader economic growth and the crucial processes of peaceful democratization in a country of 50 million.”[34]

The progress of community tenure reform is being stunted by the violent murders of land rights activists around the world, including Goldman Environmental Prize winner, Berta Caceres, from Honduras. According to Global Witness, 2015 was the deadliest year on record for activists-- more than three land or environmental defenders were killed each week, and nearly half of these activists were from Indigenous communities.[35] According to Felipe Milanez, former deputy editor of National Geographic Brazil, “Killing has become acceptable to achieve economic goals...I’ve never seen, working for the past 10 years in the Amazon, a situation so bad.”[36]

 

 

Community Land Rights and Climate Change Mitigation

 

Research by the World Resources Institute shows that securing community tenure rights in forest areas can help mitigate climate change by reducing deforestation.[38] The study presented several major findings, including that 1) when communities have no or weak legal rights, their forests tend to be vulnerable to deforestation and thus become a carbon dioxide emissions source and 2) legal forest rights and government protection of their rights can reduce carbon dioxide emissions and deforestation. In Brazil, for example, only 0.6% of forest was lost inside Indigenous lands in the Brazilian Amazon between 2000 and 2012, compared with 7.0% outside such lands.[39] Furthermore, additional WRI research shows that the economic benefits, such as ecosystem services benefits, of securing community forest tenure outweigh the costs associated titling and monitoring community forest areas.[40]

Unfortunately, the climate mitigation strategy of securing community tenure has not yet been adopted by many countries. While the 2015 Paris Agreement sets a goal of limiting global temperature rise to no more than 2 degrees Celsius, only 21 of the 188 countries that submitted climate action plans to implement the Paris Agreement made commitments to secure land rights as a climate mitigation strategy, according to RRI.[41] Major carbon dioxide emitting countries, like Brazil and Indonesia, have not made such commitments [42]

 

References

[1] RRI (Rights and Resources Initiative). 2015. “Who Owns the World’s Land? A Global Baseline of Formally Recognized Indigenous and Community Land Rights.” Washington, D.C.: RRI. Available at: http://www.rightsandresources.org/wp-content/uploads/GlobalBaseline_web.pdf.

[2] Oxfam, International Land Coalition, Rights and Resources Initiative. 2016. “Common Ground: Securing Land Rights and Safeguarding the Earth, A Global Call to Action on Indigenous and Community Land Rights.” Oxford: Oxfam. Available at: http://www.rightsandresources.org/wp-content/uploads/Global-Call-to-Acti...

[3] Tagliarino, N. “3 Reasons Why Community Land Rights Are Not Legally Secure in Many Countries.” Washington, DC: World Resources Institute. Available at: http://www.wri.org/blog/2016/04/3-reasons-why-community-land-rights-are-...

[4] “Tenure rights” are the rights of individuals or groups, including Indigenous Peoples and communities, over land and resources. Tenure rights include, but are not limited to, possession rights, use rights, and rental, freehold, customary, and collective tenure arrangements. The bundle of tenure rights can include the rights of access, withdrawal, management, exclusion, and alienation. Tagliarino, N. 2016. "Encroaching on Land and Livelihoods: How National Expropriation Laws Measure Up Against International Standards." Working Paper. Washington, DC: World Resources Institute. Available online at http://www.wri.org/publication/encroaching-on-land-and-livelihoods

[5] Alden Wily, Liz. 2008. “Whose Land Is It? Commons and Conflict States. Why the Ownership of the Commons Matters in Making and Keeping Peace.” Washington, D.C.: Rights and Resources Initiative. Available at: http://www.rightsandresources.org/wp-content/uploads/Securing-Indigenous... Stevens, C. et al. 2014. Securing Rights, Combating Climate Change. Washington, D.C., World Resources Institute. Availabe at:  https://www.wri.org/sites/default/files/securingrights-full-report-engli...

[6] ILO (International Labour Organization). 1989. Convention No. 169, Indigenous and Tribal Peoples Convention. Available at: http://www.ilo.org/ wcmsp5/groups/public/---ed_norm/---normes/documents/publication/ wcms_100897. pdf

[7] United Nations. 2007. Declaration on the Rights of Indigenous Peoples. G.A. Res. 61/295, U.N. Doc. A/ RES/61/295. Available at: http://www.un.org/esa/ socdev/unpfii/documents/DRIPS_en.pdf

[8] FAO. 2012. “Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security.” Rome, Italy: FAO. Available at: http://www.fao.org/docrep/016/i2801e/i2801e.pdf H

[9] http://www.ilo.org/global/about-the-ilo/mission-and-objectives/lang--en/...

[10] Article 14, IL Convention 169

[11] Oxfam. 2015. Community Consent Index 2015. Oxford: Oxfam. Available at: https://www.oxfam.org/sites/www.oxfam.org/files/file_attachments/bp207-c...

[12] Tagliarino, N., C. Salcedo-La Vina, S. Szoke-Burke.”Strengthening Indigenous Land Rights: 3 Challenges to “Free, Prior and Informed Consent.” Washington, D.C.: WRI. Available at:http://www.wri.org/blog/2016/05/strengthening-indigenous-land-rights-3-c...

[13] Ratifications of C169- Indigenous and Tribal Peoples Convention, 1989. Available at: http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INST...

[14] The Convention Biological Diversity(1992). Available at: https://www.cbd.int/convention/

[15] Convention on Biological Diversity: Factsheet. Available at: https://www.cbd.int/iyb/doc/prints/factsheets/iyb-cbd-factsheet-cbd-en.pdf

[16] Articles 26 and 43, UNDRIP.

[17] RRI (Rights and Resources Initiative). 2015. “Who Owns the World’s Land? A Global Baseline of Formally Recognized Indigenous and Community Land Rights.” Washington, D.C.: RRI. Available at: http://www.rightsandresources.org/wp-content/uploads/GlobalBaseline_web.pdf.

[18] See RRI factsheets on Asia, Africa, and Latin America at http://rightsandresources.org/en/resources/rri-analysis/#.V-0pF_l9670

[19] www.landmarkmap.org

[20] Reytar K., P. Veit, and N. Tagliarino. 2016. “Indigenous Land Rights: How Far Have We Come and How Far Do We Have to Go?””. Available at:http://www.wri.org/blog/2016/08/indigenous-land-rights-how-far-have-we-c...

[21] Ibid.

[22] Land Rights Now & Oxfam. 2016. “Custodians of the Land, Defenders of Our Future: A New Era of the Global Land Rush.” Oxford: Oxfam Available at:https://www.oxfam.org/en/research/custodians-land-defenders-our-future

[23] Colchester, M. and M. Farhan Ferrari. 2007. Making FPIC Work: Challenges and Prospects for Indigenous Peoples.UK:Forest Peoples Programme. Available at: http://www.forestpeoples.org/sites/fpp/files/publication/2010/08/fpicsyn...

[24] See http://www.landrightsnow.org/en/home/

[25] See https://www.standforlandrights.org/en/

[26] Alden Wily, L. 2016. “The Community Land Act: Now it’s up to communities.” Kenya: The Star. Available at: http://www.the-star.co.ke/news/2016/09/17/the-community-land-act-now-its...

[27] Davidson, H. 2016.Indigenous Australians win landmark $3 native title compensation claim. the Guardian. Available at:https://www.theguardian.com/australia-news/2016/aug/24/traditional-owner...

[28] See http://thetenurefacility.org/about-us/

[29] Rainforest Foundation US. 2015. “Getting a Land Title in Peru is Almost Impossible for Indigenous Communities.” Available at: http://www.rainforestfoundation.org/landtitlesperu/

[30] Hanstad, T. 1998. “Designing Land Registration Systems for Developing Countries.” American University International Law Review 13(3): 647–703. A

[30] RRI (Rights and Resources Initiative). 2015. “Who Owns the World’s Land? A Global Baseline of Formally Recognized Indigenous and Community Land Rights.” Washington, D.C.: RRI. Available at: http://www.rightsandresources.org/wp-content/uploads/GlobalBaseline_web.pdf.

[31]  Rights and Resources Initiative et al. 2015b. Potential for Recognition of Community Forest Resource Rights Under India’s Forest Rights Act. Washington, D.C.: RRI. Available at:  http://rightsandresources.org/wp-content/uploads/CommunityForest_RR_A4Fi...

[32] Ibid.

[33] Duncan, J. and J. Vogesang. “Liberia is at a crossroads: recognising land rights can safeguard against violence.” Thomson Reuters Foundation News. Available at: http://news.trust.org/item/20160810131830-5ex4j

[34] Roy Prosterman, R. 2016. Myanmar: The Next Great Land Tenure Reform? Thomson REuters Foundation News. Available at: http://news.trust.org/item/20160920085805-jplou/?source=leadCarousel

[35] Global Witness. 2016. “2015 Sees Unprecedented Killings of Environmental Activists.” Available at:https://www.globalwitness.org/en/press-releases/2015-sees-unprecedented-...

[36] Ibid.

[37] Ibid.

[38] Stevens, C. et al. 2014. Securing Rights, Combating Climate Change. Washington, D.C., World Resources Institute. Availabe at:  https://www.wri.org/sites/default/files/securingrights-full-report-engli...

[39] Securing Rights, Combating Climate Change: Factsheet. Available at: http://www.burness.com/wp-content/uploads/2015/11/WRI-RRI-Report-Fact-Sh...

[40] Gray, E. et al. 2015. The Economic Costs and Benefits of Securing Community Forest Tenure: Evidence from Brazil and Guatemala. Washington, DC: World Resources Institute. Available at:https://www.wri.org/sites/default/files/15_WP_CLUA_Forest_Tenure.pdf

[41] RRI. 2016. Indigenous Peoples and Local Community Tenure in the INDCS: Status and Recommendation.Washington, DC: RRI. Available at:http://rightsandresources.org/wp-content/uploads/2016/04/Indigenous-Peop...

[42] Tagliarino, N. 2016. “Four big reasons why land rights matter.” Thomson Reuters Foundation News. Available at:http://news.trust.org/item/20160513141739-6kps9

landvoc_to
Indigenous & Community Land Rights
Date of publication
mars 2016
Geographical focus

Urbanisation in Asia and the Pacific: Challenges for Responsible Land Administration and Land Management

Date of publication
mars 2016
Geographical focus

Urbanisation in Asia and the Pacific: Challenges for Responsible Land Administration and Land Management

Date of publication
août 2016
Geographical focus

The Asia and Pacific region has witnessed a remarkable transition in the past 2 decades. From 1990 to 2012, more than 1 billion people in Asia and the Pacific were lifted out of extreme poverty. The region also witnessed rapid economic growth, which is expected to remain stable at a growth rate of about 5.7% for the next 2 years.

Despite these achievements, the region is a global hot spot for water insecurity. It remains home to 60% of the world’s population and half of the world’s poorest people. Water for agriculture continues to consume 80% of the region’s resources. A staggering 1.7 billion people lack access to basic sanitation, and with a predicted population of 5.2 billion by 2050 and hosting 22 megacities by 2030, the region’s finite water resources will be placed under enormous pressure. Recent estimates indicate up to 3.4 billion people could be living in water-stressed areas of Asia by 2050. 

Coupling demographics with changes in demand adds a further dimension. Industrialization and economic transformation require more power and a shift to more water-intensive diets, thus increasing competition between water users like industry and agriculture. The region’s water demand is projected to increase by about 55%, due to the growing needs for domestic water, manufacturing, and thermal electricity generation. Agriculture will need to produce 60% more food globally by 2050, and 100% more in developing countries, using diminishing water resources.

These challenges are compounded by increasing climate variability and water-related disasters that threaten numerous major urban areas, agricultural production, and coastal populations. Poor governance and weak institutional capacity endemic of almost all developing countries in Asia and the Pacific place sustained and inclusive economic development of the region into a very precarious situation.

Water remains pivotal for sustainable development and is linked to a number of global challenges. The advent of the post-2015 development agenda and a dedicated Sustainable Development Goal for water reflects this message and reemphasizes the interlinkages of this finite resource across a range of users.

Japan: Ministry plans to guide Asian nations in better use of land

On Tue, Aug 30, 2016

By: Jiji
Date: August 28th 2016
Source: Japan Times

The land ministry plans to draft a multilateral framework that could help developing nations in Asia make better use of their land through careful planning, government sources said.

The sources said the ministry will propose the framework at the U.N. Conference on Housing and Sustainable Urban Development (Habitat III) in Quito, Ecuador, in October.

Date of publication
août 2015
Geographical focus

This issue brief highlights the roots of land grabbing experienced in the aggrieved communities in seven countries. It also features the importance of advanced smallholder agriculture and local food industry, broadened land rights movement, and strengthened land governance in promoting the rights of the farmers.

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