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and resources, taking into account indigenous peoples customs, traditions and land tenure
systems.
Recognition of customary procedures for transmission of lands within communities
The Convention states that indigenous peoples have the right to pass lands on from one generation
to another, according to the customs of their own community.
Protection against abuse and intrusion Based on past negative experiences where
indigenous peoples have been tricked or forced to give up their lands, the Convention provides
protection from others coming into these lands for their own personal gain without permission from the
relevant authorities and from outsiders trying to take the lands of indigenous peoples away from them
through fraud or other dishonest means.
Provision of more lands where necessary Due to population growth, environmental
degradation, etc., there are many cases, where indigenous peoples need additional land in order to
sustain their livelihoods.
7.3. DISPLACEmENT
Considering the crucial importance of lands and territories for indigenous peoples, it is obvious that
any non-voluntary or forced displacement have severe impacts, not only on their economies and
livelihood strategies but also on their very survival as distinct cultures with distinct languages, institutions,
beliefs, etc.
Article 16 of Convention No. 169 deals explicit with displacement of indigenous peoples.
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ILO Convention No. 169, Article 16: 1.
Subject to the following paragraphs of this Article, the peoples concerned shall not be
removed from the lands which they occupy. 2.
Where the relocation of these peoples is considered necessary as an exceptional
measure, such relocation shall take place only with their free and informed consent.
Where their consent cannot be obtained, such relocation shall take place only following
appropriate procedures established by national laws and regulations, including public
inquiries where appropriate, which provide the opportunity for effective representation of the
peoples concerned. 3.
Whenever possible, these peoples shall have the right to return to their traditional
lands, as soon as the grounds for relocation cease to exist.
4.
When such return is not possible, as determined by agreement or, in the absence
of such agreement, through appropriate procedures, these peoples shall be provided
in all possible cases with lands of quality and legal status at least equal to that of the
lands previously occupied by them, suitable to provide for their present needs and future
development. Where the peoples concerned express a preference for compensation
in money or in kind, they shall be so compensated under appropriate guarantees.
5.
Persons thus relocated shall be fully compensated for any resulting loss or injury.
The irst basic principle, established in Article •
161 of the Convention, is that indigenous
peoples shall not be removed from their lands. This is the basic principle that should
be applied under all normal circumstances. However, acknowledging that there may
• be circumstances where this becomes
unavoidable, Article 162 establishes that this should be only as an
exceptional measure.
This could, for example, in the near future be the case for some pastoralist and small island
communities that are severely affected by changes in the global climate.
To ensure that such situations are handled in •
an adequate way that respects indigenous peoples’ rights and integrity, Article 162
further stipulates that relocation should only take place with their
free and prior informed consent. Free and informed
consent means that the indigenous peoples concerned understands fully the meaning
and consequences of the displacement and that they accept and agree to it. Obviously,
they can do so only after they have
clear and accurate information on all the relevant
facts and igures. If indigenous peoples do not agree, and the
• relocation is still unavoidable, then Article
162 outlines that the relocation should only take place following
appropriate procedures established by national
legislation and including
public inquiries
where indigenous peoples have the opportunity to effectively present their views.
Article 163 stipulates that in cases where •
relocation has been necessary, indigenous peoples should have the
right to return as
soon as the reason for which they had to leave is no longer valid. For example, in the
case of a war, or natural disaster, they can go back to their lands when it is over.
Article 164 stipulates that in cases where
• such unavoidable relocation becomes a
permanent situation, indigenous peoples have the right to
lands of an equal quality and legal status to the lands they previously
occupied, for example in terms of agricultural potential of the lands and the legal recognition
of ownership to that land. Thus, if indigenous peoples cannot return to their lands, for
example because they have been looded, there must be a plan for their resettlement
and rehabilitation. If indigenous peoples so wish, they can accept other forms of payment
for their lost lands. Finally, Article 165 stipulates that indigenous
• peoples have the right to receive
full compensation for any loss or injury the
relocation may have caused, e.g. loss of house or property, adverse health impacts
due to change of climate, etc.
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The
UN Declaration on the Rights of Indigenous Peoples, has similar provisions
on redress, restitution and compensations, in Article 28:
1.
Indigenous peoples have the right to redress, by means that can include restitution
or, when this is not possible, just, fair and equitable compensation, for the lands,
territories and resources which they have traditionally owned or otherwise occupied
or used, and which have been coniscated, taken, occupied, used or damaged without
their free, prior and informed consent. 2.
Unless otherwise freely agreed upon by the peoples concerned, compensation shall
take the form of lands, territories and resource equal in quality, size and legal status or of
monetary compensation or other appropriate redress.
7.4. COmmENTS By THE ILO SUPERVISORy BODIES: RIGHT TO LANDS AND TERRITORIES
