Indigenous peoples’ customary law and state law
RIGHTS AIPP
AIPP Regional Capacity Building Program - Training Manual on the UNDRIP
80 EXAMPLE:
THE BONTOK SYSTEM OF LAND USE AND OWNERSHIP
The Bontok are an indigenous people of the Northern Luzon Cordillera in the Philip- pines.
Bontok anthropologist June Prill-Brett writes that each of her people’s villages “is an autonomous agricultural community that is socially, politically, and economically in-
dependent of all others.”
Traditionally, the Bontok have a complex land use system combining rice cultivation on irrigated terraces with shifting cultivation, the breeding of livestock like pigs, buffa-
los and cattle, and hunting and gathering of forest products.
The Bontok, according to Prill-Brett, “view the land as a gift from ‘the one in the highest’. To them land is a source of life; ‘it belongs to no one or to everyone.’ ” Nonethe-
less, the Bontok have rules specifying community members’ rights to land and resources within the village. Bontok communities recognize three categories of land rights, each
with its own rules of ownership and succession:
Lamoram. This is communal land; it belongs to all village members. Lamoram in-
clude forests and hunting grounds, smaller woodlands, pasture land and village settle- ments.
Tayan. This is land that was once part of the communal domain but has been segre-
gated as the property of a kinship group. Usually, it is land that was cleared for shifting cultivation. The descendants of the person who did the work now have the right to use
that land. But tayan can, instead, be a woodlot, a pasture, or a fishing site that has been used continually by several generations of only one kinship group, and so has become
the group’s property.
Fukod. This is land recognized by the community and the kinship group as the prop-
erty of an individual. It is a plot of land that has been developed through hard labor like the building of terraces and the installation of irrigation channels. The person’s labor
gives him or her exclusive right to the developed land, and it is inherited only by one of his or her own descendants. It usually consists of paddy fields or vegetable gardens.
Probably in all indigenous agricultural societies, some form of individual rights over certain resources or parcels of land is recognized. Paddy fields are a typical example. Very common also
is the right over perennial plants, like fruit trees – which, however, does not necessarily imply the right over the land on which they grow.
Collective rights over land other than paddy fields are common among indigenous societies. In many cases, this even includes land for shifting cultivation.
But collective rights are not always identical with communal rights. Such collective rights may exist on different levels. The collective in which these rights are vested may be the whole
community or part of it, like the kinship groups among the Bontok who have the exclusive right over the swidden land opened by their forebears. Or they may be held by a social unit larger than
a single community, like among the Bontok’s neighbors, the Kalinga.
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In many modern nation-states there is no recognition of communal or any other form of col- lective land rights. There are usually only two types of land ownership: private property owned
by individuals or corporations and the so-called public domain owned by the state.
As we have seen earlier, many post-colonial states have continued to adhere to the laws and policies that were introduced by the colonial powers which established state control over vast
areas of land, especially forests. Since only private land titles are recognized, indigenous peoples’ ancestral lands have been taken over by the state and given out to private entrepreneurs on a
large scale.
In some countries, communal rights are recognized. In the states of Sabah and Sarawak in Malaysia, for example, communal titles are recognized in Land Ordinances. And in Northeast
India, the Autonomous District Councils have the authority to regulate use of and access to land, forests, water bodies and other resources according to customary law. But in both countries
the governments still try to promote individual titles over communal titles, and in Sarawak and Sabah, customary land rights have for many decades been simply ignored by the state when
handing out large-scale concessions for logging or plantations.
But there are also other forces at play undermining existing customary law and eroding traditional communal land rights. Holding sway for many years, these forces have unfortunately
affected communities to the extent that indigenous peoples themselves now prefer individual ownership over communal ownership.
In the present context of increasing market integration, communal land rights are – from the point of view of entrepreneurial individuals – disadvantageous: these individuals cannot use land
as collateral for taking out loans from banks, or they are – understandably – not willing to invest labour and money unless they are sure to reap the profits themselves. Thus, there is a push for
privatization wherever market integration has progressed far, and the production of cash-crops has come to dominate the domestic economy of the communities. Land is increasingly regarded
as a commodity to be bought or sold. Since governments generally tend to consider communal land rights as backward and incompatible with a market-oriented economy, this attitude is sup-
ported either explicitly or implicitly by government development policies and programs, such as agricultural loan, land allocation or cash crop promotion programs.
Today, indigenous peoples’ customary laws are like islands in a sea of state laws. There are only a few cases in which they are officially recognised:
• As a result of the Peace Accord between the Bangladesh Government and the Parbattya Chattagram Jana Sanghati Samiti JSS, the Hill Tracts Council was formed, under which
a system of layered rights and authorities are recognized, part of which are customary laws of the different indigenous peoples.
• In the so-called Autonomous District Councils like e.g. Khasi Hills ADC, Garo Hills ADC, Jaintia Hills ADC, North Cachar Hills ADC or the Karbi-Anglong Autonomous Council
created under the 6th Schedule of the Constitution in Northeast India, customary laws are part of the legislative set-up based on which the Autonomous District Councils are
operating. ADCs have among their subjects the regulation of rights, access to and man- agement of land and natural resources.
In most countries, however, customary rights over land and resources are still either not recognized, are ignored or are contested by competing laws in the service of vested interests.
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RIGHTS AIPP
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An example
is the Philippines. Here, ancestral do-
mains are recog- nized
and being
titled. But because the state is promot-
ing large-scale min- ing, there is continu-
ing encroachment on indigenous peoples’
territories.