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1-2/10 DEVELOPMENT AND CUSTOMARY Law INDIGENOUS AFFAIRS Indigenous Affairs 1-2/10 IWGIA 1 contents editorial 4 africa APPLICATION OF INDIGENOUS PEOPLES’ CUSTOMARY Law TO PROTECT THEIR LAND RIGHTS IN AFRICA George Mukundi Wachira 6 CUSTOMARY Law AND CONFLICT RESOLUTION AMONG KENYA’S PasTORALIST COMMUNITIES Abraham Korir Sing’oei 16 THE EMANCIPATORY POTENTIAL OF CUSTOMARY Law FOR THE RIGHTS OF WOMEN TO access LAND Wilmien Wicomb 22 asia SELF-DETERMINED DEVELOPMENT OF INDIGENOUS PEOPLES John Bamba 28 INDIGENOUS PEOPLES AND CUSTOMARY Law IN SABAH, MALAYSIA Jannie Lasimbang 38 DEFINING CUSTOM COLONIAL INTERPRETATION AND MANIPULATION OF INDIGENOUS CUSTOMS IN INDIA Asoka Kumar Sen 44 latin america “LIVING WELL” THE INDIGENOUS LATIN AMERICAN PERSPECTIVE Mirna Cunningham 52 Cover: Buhid, Philippines – Photo: Christian Erni 2 Indigenous Affairs 1-2/10 MOTHER EARTH AND “LIVING WELL” NEW ANALYTICAL AND STRATEGIC PARADIGMS FOR INDIGENOUS STRUGGLES? Efraín Jaramillo Jaramillo 60 HAPPINESS AS A QuaLITY OF LIFE INDICATOR Alberto Chirif 64 INDIGENOUS JUSTICE IN BOLIVIA IN THE CONTEXT OF THE PLURINATIONAL STATE Elba Flores Gonzáles 70 arctic THE INDIGENOUS HUMAN RIGHT TO DEVELOPMENT Dalee Sambo Dorough 76 THE STATUS OF INDIGENOUS PEOPLES OF THE RUSSIAN NORTH IN THE CONTEXT OF LEGAL PLURALISM Natalya Novikova 84 ISSN 1024-3283 INTERNATIONAL WORK GROUP FOR INDIGENOUS AFFAIRS 2010 International secretariat Editor of this issue: Geneviève Rose and Jens Dahl Classensgade 11 E, DK-2100 Proof reading and translation from Spanish: Elaine Bolton Copenhagen, Denmark Translation from Russian: Olga Povoroznyuk Phone.: (+45) 35 27 05 00 Price: Single copies € 7 + postage Fax: (+45) 35 27 05 07 Please note that the views in this journal are those of the authors and do not necessarily reflect E-mail: [email protected] - Website: www.iwgia.org those of the Work Group. No reproduction of any part of this journal may be done without the permission of IWGIA. 64 All IWGIA's publications can be bought from our webshop. See www.iwgia.org Please do not hesitate to contact the secretariat if you have any questions concerning our publications. You can choose to become a member. As a member, you will receive a discount when buying other publications from our webshop. Indigenous Affairs 1-2/10 3 EDITORIAL EDITORIAL Jens Dahl & Geneviève Rose n many parts of the world, indigenous peoples ment and their development aspirations. Indigenous Isuffer from a history of discrimination and ex- peoples’ views on the future and desires for increased clusion that has left them on the margins of the well-being are, first and foremost, of a communal ori- wider societies in which they exist. For this rea- entation and linked to the collectivity more than to the son, they face great difficulties in maintaining and individual human being. Increased well-being and developing their own models of development and control of one’s future is the epitome of indigenous are disproportionately affected by poverty and ex- peoples’ development, whether the emphasis is on clusion. Under the basic principles of universality, economic prosperity, customary laws, conflict resolu- equality and non-discrimination, indigenous peo- tion or spiritual relations. In this volume, Dalee Sambo ples are entitled to the full range of individual hu- illustrates how development is an inalienable right and man rights established in international law. How- an integral part of indigenous peoples’ self-determina- ever, in order to be able to enjoy equal rights as tion, as stipulated in the Declaration, by using the ex- compared with other collectivities, and in order to ample of the Alaska Native Claims Settlement Act. be able to assert their self-determined develop- As Victoria Tauli Corpuz1 has stated on several occa- ment, special measures are required. sions, there is a need for a human development model This issue of Indigenous Affairs is a combined is- that provides indigenous peoples with the possibility of sue that brings together a mixture of different articles continuing to live on their lands and decide how their and perspectives on development, self-determination natural resources are going to be used, and this means and the role of customary law. The articles touch upon that it has to be indigenous peoples themselves who indigenous peoples’ economic, legal, social and po- should decide what kind of cultural, economic, legal litical development. and spiritual development they want. Such self-deter- mined development would respect indigenous peoples’ culture and identity and would reflect indigenous peo- Self-Determination and Development ples’ own visions, perspectives and strategies. Most recently, the communality or collectivity of in- Indigenous peoples, as collectivities, have distinct digenous peoples has been revived within the celebra- and unique cultures, systems and world views, and tion and respect of “Mother Earth”. The concept of their current needs and aspirations for the future may Mother Earth as used by indigenous peoples in the differ from those of the mainstream population. In- Americas contains religious elements but, first and digenous peoples’ lives and futures can only be as- foremost, it represents cultural values and a desire to sured through the recognition and protection of not take care of future generations. Linked to the concept only their individual rights but also their collective of Mother Earth is the notion of Living Well. Living rights as distinct peoples. It is thus when their right to Well expresses the close relationship between living self-determination, as enshrined in the UN Declara- beings and nature and it links to the historic past of tion on the Rights of Indigenous Peoples, is asserted indigenous self-determination before invasion and that indigenous peoples’ collective rights can be real- conquest. It is the opposite of resource exploitation, ized in a meaningful way. commercialization and oppression and gives priority During the whole negotiation process for the draft- to subsistence, and the renewable and sustainable use ing of the UN Declaration on the Rights of Indigenous of nature. In this way, it represents an indigenous form Peoples, indigenous peoples consistently defended of development as an alternative to Western dominat- recognition of their right to self-determination as a pre- ed capitalist development. There are reasons to be cau- requisite to the protection and promotion, as well as tious, however, with regard to the increasing use of exercise and enjoyment, of all their rights. Indigenous references to the rights of Mother Earth within or inter- peoples insisted that, besides individual human rights, related to the international human rights framework. collective rights are a cornerstone of indigenous com- munities and cultures. Communality and collectivity 1 Member of the United Nations Permanent Forum on Indige- permeate their spirituality, relationship with the land, nous Issues (UNFPII) and Executive Director of the Tebtebba Foundation, an indigenous peoples’ policy research center ways of resolving conflict, their view on the environ- based in the Philippines. 4 Indigenous Affairs 1-2/10 Although such language may better reflect an indige- laws and traditions. This could be relevant, especially nous worldview than the language of human rights for traditional forms of natural resource management proper, there is still the question of who the legitimate and regulation of local issues. spokesperson of Mother Earth is. It is therefore impor- In his article, Sing’oei Korir argues that, for indige- tant to be wary of the potential implications. The new nous peoples, traditional practices and customary law discourse on Mother Earth Rights must contribute to may be better suited to resolving conflict than the stat- reinforcing the integrity of the international human utory norms. He illustrates this point through the con- rights framework. If it is instead to be used to question flict resolution process among pastoralist communities the validity of those human rights, this will be a grave in northern Kenya. As he emphasizes: “Given the non- setback for respect for human rights, indigenous peo- atomization of individuals in African states and the ples’ rights included. The concepts of Mother Earth fact that belonging to groups is still a salient reality, and living well are summarized and debated in the ar- there must be a place for the deployment of communi- ticles of Mirna Cunningham and Efrain Jaramillo. ty mechanisms in addressing disputes that transcend The insistence on collective rights and their link- the individual and have pervasive impacts on the age to indigenous cultures and traditions is, to a large group”. In the same line, the article by George Muku- extent, a survival mechanism. It is an attempt to coun- ndi illustrates the importance of indigenous peoples’ ter dispossession when constantly under threat from laws, traditions and customs for their rights to land mining, logging, oil palm plantations, etc. In this vol- and natural resources. The article shows how indige- ume, John Bamba, an indigenous leader from West nous peoples’ customary laws can protect and promote Kalimantan, Indonesia, gives an important example collective land ownership, control and management, in of how establishing community-based credit unions accordance with their cultures and traditions. unites the necessary communal linkage with individ- The adaptive and evolving nature of customary law ual needs for loans. can sometimes be a disadvantage given that,

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