Forest Peoples Programme 1c Fosseway Business Centre, Stratford Road, Moreton-in-Marsh GL56 9NQ, UK tel: +44 (0)1608 652893 fax: +44 (0)1608 652878 email: [email protected] REF: RA 42/1 PE 4/173 A SURVEY OF INDIGENOUS LAND TENURE A REPORT FOR THE LAND TENURE SERVICE OF THE FOOD AND AGRICULTURE ORGANISATION DECEMBER 2001 Marcus Colchester (editor) Marcus Colchester, Fergus MacKay, Tom Griffiths and John Nelson This paper was prepared under contract with the Food and Agriculture Organization of the United Nations (FAO). The positions and opinions presented are those of the authors alone, and are not intended to represent the views of FAO. FAO The Forest Peoples Programme is registered as a non-profit NGO in the UK and Netherlands. The Programme was originally established by the World Rainforest Movement and works to secure the rights of forest peoples to control their lands and destinies. A Survey of Indigenous Land Tenure About the authors: Marcus Colchester received his doctorate in anthropology at University of Oxford on the Social Ecology of the Sanema (N. Yanomami) of South Venezuela. He has subsequently worked extensively throughout the tropics. His work has focused on the rights of indigenous peoples, forest policy and standard-setting for conservation and development. In 1994 he was awarded a Pew Conservation Fellowship in recognition of his work in this field. He has acted as a consultant for the International Commission on International Humanitarian Issues, the United Nations Research Institute on Social Development, the World Bank, the World Commission on Dams, the International Centre for Research in Agroforestry, the Centre for International Forestry Research and the Biodiversity Support Programme. He has published extensively in academic and NGO journals and is the author and editor of numerous books including ‘The Struggle for Land and the Fate of the Forests’ (1993) with Larry Lohmann and ‘Guyana: Fragile Frontier - Loggers, Miners and Forest Peoples’ (1997). In 2001, he was awarded the Royal Anthropological Institute’s Lucy Mair Medal for Applied Anthropology. He is Director of the Forest Peoples Programme. Fergus MacKay is a human rights lawyer trained at the California Western School of Law. He is an expert in indigenous rights and has written a number of books and articles on the subject. He has worked as an attorney for indigenous organisations in Alaska and other areas of the United States. As legal adviser to the World Council of Indigenous Peoples he worked with indigenous organizations throughout the Americas and the Pacific on a variety of activities including: rights education, litigation, land demarcation, promotion of treaty ratification and technical support with drafting legislation. He has also been active in the development of the draft United Nations Declaration on the Rights of Indigenous Peoples, the draft Organization of American States Declaration on the Rights of Indigenous Peoples and other international standard-setting exercises pertaining to indigenous peoples. He acts as regional coordinator for the Three Guyanas Programme and coordinator of the Human Rights and Legal Programme of the Forest Peoples Programme. Thomas Griffiths is an Oxford-trained social anthropologist who carried out field research for his doctorate on Amerindian livelihood strategies with the Uitoto people in lowland Colombia. He currently works as policy advisor to the Forest Peoples Programme on issues relating to International Financial Institutions, International Forest Policy and Community-based Natural Resource Management. As well as participating in international forest-related fora, he undertakes participatory field evaluations of development policies and projects. This grassroots work is used to inform policy analysis and provide information to indigenous and NGO networks engaged in policy debates at the national and international levels. With prior qualifications in ecology and protected area management, he also works with local communities in participatory mapping and natural resource management planning. He is fluent in Spanish and speaks Uitoto. John Nelson is a project officer at the Forest People Programme working on projects dealing with the effects of conservation and infrastructure projects, and IFI funding on the rights of indigenous peoples. He manages a cooperative review of the impact of protected areas on indigenous peoples in Africa through the preparation of 10 case studies by local groups in 7 countries, another in Cameroon to support Bagyeli living along the route of the Chad-Cameroon pipeline to assert their rights to land, and FPP's ongoing initiative to support Batwa in South West Uganda affected by the closure of forests brought about by the establishment of GEF-funded national parks. He studied economics and tropical agriculture at Vanderbuilt in Tennessee and the University of London, and started working in Africa in the 1980s as a Peace Corps volunteer in the Segou Region of Mali. Since then he has worked for a variety of policy research institutes across the UK on issues related to agricultural development, and most recently co-managed a study of long term environmental change in 4 African countries. He speaks English, French, and Bambara, and is learning Spanish. He lives with his family in Somerset, England. We would like to thank Dorothy Jackson for comments on an early draft of Chapter 5 and Louise Henson for essential help with the bibliography. 2 A Survey of Indigenous Land Tenure CONTENTS: 1. Executive Summary: 2. Introduction: definitions indigenous rights and rights to land obstacles to land security 3. Indigenous land rights: legal issues Fergus Mackay Indigenous rights in international law Aboriginal title and Indigenous Peoples of the Commonwealth Indigenous rights in Spanish law and the regalian doctrine Indigenous rights under Napoleonic Code in Francophone Africa Legal obstacles to recognition of indigenous rights 4. Latin America: Tom Griffiths Land tenure regimes and indigenous livelihood security Constitutional reforms and indigenous land rights Boxes on Ecuador, Bolivia, Colombia, Brazil, Guyana, Suriname, Mexico, Venezuela. 5. Sub-Saharan Africa: John Nelson Customary land tenure The Roots of State Law Customary land tenure in practice The Persistence of Customary Land Tenure Regimes Land Reform Livelihood security and gender considerations Institutional and policy issues Boxes: Cameroon, San in Botswana, South Africa and Namibia, Batwa and land pressure in Rwanda 6. Asia: Marcus Colchester Definitonal issues Forms of tenure, equity and legal personality The issue of shifting cutlivation Gender issues and indigenous tenure in Asia Community based natural resource management Boxes: India, Thailand, Indonesia, Malaysia, Philippines, PNG, Russia 7. Conclusions and Recommendations: Institutional challenges and procedures for recognising indigenous tenure Communal tenure, legal personality and self-governance Communal tenure and gender implications Self-demarcation and mapping Communal tenure and sustainable natural resource management Communal tenure and community development Aid agency experiences Recommendations Knowledge gaps 8. Bibliography: 3 A Survey of Indigenous Land Tenure Chapter 1. Executive Summary This study provides a concise overview of the information available on the land rights of indigenous peoples, with a focus on those in developing countries and countries with economies in transition. Successive chapters summarise the rights of indigenous peoples in international law and then examine how these rights are being recognised, or not, in Latin America, Africa and the Asia-Pacific. A final chapter reviews the findings of the survey and identifies key issues to be considered in making policy decisions about indigenous land rights. Indigenous peoples remain an undefined category but one that has gained widespread currency in international discourse and international law. Indigenous rights to land, understood as rights to collective ownership, are embedded in the right of indigenous peoples to self-determination. A treatment of land rights should not be divorced from wider human rights considerations or from the political economy in which land is but one issue. Indigenous rights are firmly entrenched in international human rights jurisprudence. New human rights instruments focused on indigenous rights need ratification but, for the large part, consolidate existing rights. Aboriginal rights based on English Common law have long antecedents and have been found to apply widely in Commonwealth countries. Rights based on immemorial possession are also widely recognised in Latin countries. International law on indigenous land rights fits least certainly with legislation based on the French Civil Code. Latin America has witnessed a remarkable transformation in the way indigenous rights are recognised. Policies of assimilation and integration, with a concomitant denial of rights to land, have given way to new Constitutions and laws recognising the multi-ethnic and pluri-cultural nature of Latin American states. Particularly in lowland areas, very large swathes of land have begun to be recognised as inalienable territories under collective ownership and, even in some countries, indigenous self-governance. The social and environmental advantages of recognising indigenous rights has facilitated this trend. Less progress has been made in areas of competing land use from mining, oil and gas interests and conservation agencies.