On Monday 4 February, Lawyers Against Poverty hosted a discussion at Simmons & Simmons on the theme of “Making Indigenous Land Rights a Reality”. We were honoured to have Professor Alexandra Xanthaki, Research Director at Brunel Law School, and Joss Saunders, General Counsel of Oxfam GB, to lead the discussion on the struggle to realise indigenous rights and what we as lawyers can do to help.
We heard first from Alexandra, who focused on the current state of international law in the area of indigenous rights (including in relation to land). The main challenge for indigenous communities, she said, is twofold. Firstly, it is an issue of securing the right to self-determination, in practice as well as in theory. Secondly, it is an issue of securing respect for indigenous identities and their way of life and vision of society. She made it clear that indigenous peoples are agents of change and not victims and lawyers must ensure not to treat them with condescension and misunderstanding; they must help in the indigenous struggle to realise their rights (rather than seeking to set the agenda themselves).
Speaking on the value of the UN Declaration on Indigenous Peoples, Alexandra considered why it is that indigenous communities are in need of special protection. The fact is that the level of distinctiveness of indigenous peoples makes them more vulnerable than non-indigenous peoples and hence in need of special protection under international law. There is also the fact that indigenous communities have a unique understanding of their ancestral lands and do not view them merely as property. Indeed, the extraordinary and spiritual significance of land to the indigenous communities whose ancestors have occupied and tended it for centuries has been recognised by the Inter-American Court of Human Rights.
Efforts not to recognise the rights of indigenous communities to stay on their land and continue their activities in connection with it are widespread and concerted. An argument often used by states is that, while they recognise and respect the right of indigenous communities to their land, it is necessary in order to serve the wider good that these lands are forfeited. Poorer countries will refer to imperatives of economic development in service of the wider population; richer ones indicate the need to sustain the quality of life of its non-indigenous as well as indigenous peoples. But economic development or other such arguments are inadequate on their own to justify depriving indigenous communities of rights to their land.
Alexandra went on to discuss the fact that there has been an increase in state violence against indigenous peoples. In Bangladesh in 2017, 141 indigenous human rights defenders were arrested or detained while 161 were harassed with false charges; in addition, an estimated 56 indigenous women and children were sexually or physically assaulted by mostly non-indigenous perpetrators. In Colombia, there were 45 murders of indigenous peoples as well as 122 instances of threats, 827 unjust incarcerations and 3,800 displacements. In the Philippines, there were 37 cases of extrajudicial killings and 62 of illegal arrests. With violence on the rise, Alexandra and others are working to identify the most effective means of safeguarding indigenous rights.
A major achievement in recent times has been the recognition of a standard of free, prior and informed consent. This essentially creates a right to veto for indigenous communities in circumstances where their land is directly affected by a prospective development. This, said Alexandra, is revolutionary and will assist in the struggle to safeguard the ancestral lands of indigenous communities. The rights to restitution and compensation are other tools in the arsenal available to indigenous peoples, although these can be difficult to enforce in practice (as has been the case in Kenya). Underling all of these is the principle of self-management and the need to recognise indigenous communities as the custodians of and equal stakeholders in the land.
We then heard from Joss, whose section of the discussion was focused on what we as lawyers can do to help. By way of introduction, Joss set out two cases and asked us to identify which occurred a couple of years ago and which occurred 3 millennia ago. In the first case, the ancestors of an indigenous community had lived on a certain tract of land over the course of many years. One day, an official arrived with a sheaf of documents asserting that it was the state who owned the land. The community started a campaign to keep their land and its leaders were arrested, detained and convicted for trespass. They appealed to a superior court and were able to avoid incarceration only by agreeing never again to set foot on their land.
In the second case, the ancestors of an indigenous community had lived on a certain tract of land over the course of many years. One day, an official arrived with a sheaf of documents asserting that it was the state who in fact owned the land. The course of events from there was much the same (the community leaders were arrested, detained and convicted of trespass) except that on appeal the indigenous community was able to adduce documentary evidence of ownership and consequently regained their lands. It was this case that occurred 3 millennia ago in China, showing us that indigenous peoples have struggled with much the same issues for many years indeed.
With the benefit of this introduction, Joss went on to consider several issues connected with rights to land in the world today, including the importance of communication and the crucial function of lawyers in communicating the substance of their rights to indigenous communities as well as the struggle of women to realise their rights to retain land once their husband has died. Concerning the importance of communication, Joss described a case study in India, where an indigenous community was unaware of a new law made in their favour. You can watch a video about the case here. In relation to women’s land rights, Joss referred us to a case in Uganda, where a man was intent on murdering his uncle’s wife in order to claim the land left on his death.
Joss then discussed the fact that while charities and companies are often at war with one another over the issues of indigenous rights to land, it may be the time to work together in order to create solutions that safeguard the rights of indigenous communities while meeting (some of) the (compatible) interests of multi-national corporations. By way of example, Joss mentioned the report issued regularly by Oxfam called “Behind the Brand”, which uses a number of metrics to measure a company’s compliance with ethical standards in areas such as labour, women’s and land rights. Each company is accorded a score based on its policy in relation to (for example) whether or not it is aware of the conditions under which a particular one of its supplier is using a certain area of land. This can create an incentive for companies (and indeed their competitors) to improve their policies and practices and conduct the requisite level of due diligence at all stages of the supply chain. And lawyers can help in this area by negotiating contracts that require disclosure of the conditions under which a supplier is occupying a certain area of land.
We want to thank Alexandra and Joss (as well as Richard and other expert contributors from our audience) for bringing to life an issue which is becoming a crisis on a worldwide scale. Please click here for a copy of the slides we showed on the evening and watch this space for news of more upcoming events: Making Indigenous Land Rights a Reality.