Acion and Mobilizaion to Defend Rights

RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 63 NICARAGUA Awas Tingni case: Inter-American Court of Human Rights, Caso de la Comunidad Mayagna Sumo Awas Tingni v. Nicaragua, Sentencia de 31 de agosto de 2001. This landmark case upheld the rights of the Mayagna community’s customary law land rights, highlighting the “communitarian” and other traditions, which were held to have not been extinguished by the creation of the Nicaraguan state. An interesting feature of the case is that the main counsel in the case is the incumbent Special Rapporteur on the Human Rights and Funda- mental Freedoms of Indigenous Peoples, Prof. Dr. James A. Anaya.

C. Actual Exercise of the Right

INDIA Sixth Schedule District Councils as a best practice. EXAMPLE SIXTH-SCHEDULE DISTRICT COUNCILS Extract from: Roy, Raja Devasish. 2005. Traditional Customary Laws and Indigenous Peoples in Asia London: Minority Rights Group International: 15. Mizoram is also among those states in Northeast India where the Sixth Schedule to the Constitution of India applies. This Schedule provides for another type or form of au- tonomy at a level that is lower than that of a state; namely, autonomous district and re- gional councils, whose populations are usually from one or more ethnic groups that are distinct and separate from those in other parts of the state. Thus, Mizoram has a number of district and regional councils populated by indigenous people who do not belong to the majority Mizo group who themselves are an indigenous people. One such coun- cil is the Chakma Autonomous District Council, having jurisdiction over an area with an overwhelming majority of indigenous Chakmas, who are also the largest indigenous group in the neighbouring region of Chittagong Hill Tracts in Bangladesh. The Sixth Schedule district and regional councils – such as Chakma Autonomous District Council – have jurisdiction over several matters, including land administration, administration of justice, and limited legislative powers. They are partially autonomous from the state governments although the Governor of the state, a federal government appointee, retains certain legislative prerogatives, and enjoy the power to make laws on, inter alia, such subjects as allotment of lands other than reserved forests, manage- ment of forests other than reserved forests, regulation of ‘jum’ swidden cultivation and inheritance of property. In addition, these councils are empowered to regulate the levying of interest rates above a certain percentage, money-lending and trading by those not native to the state. EXAMPLE SIXTH-SCHEDULE DISTRICT COUNCILS Establishment of Village or Town Committees or Councils Extract from: Roy, Raja Devasish. 2005. Traditional Customary Laws and Indigenous Peoples in Asia London: Minority Rights Group International: 17. Apart from the special constitutional safeguards on Mizo customary law as men- tioned earlier, other such safeguards on customary laws include the legislative preroga- Module-3 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 64 tives of the autonomous district and regional councils and their authority to establish judicial and quasi-judicial bodies. The aforesaid councils may pass laws for the estab- lishment of village or town committees or councils, the appointment and succession of Chiefs or headmen, marriage and divorce, and social customs. Village councils or other courts so constituted by district or regional councils are empowered to try all suits and cases between indigenous people “scheduled tribes”, excluding grave criminal offenc- es that carry high prison sentences or death penalties, unless the governor of the state expressly authorizes the indigenous court or person concerned to try them. Regional and district councils hear appeals against the judgments and decisions of the village councils or other courts.

V. CHALLENGES

A. Needs, Capaciies, Strategies

Needs. Some needs are fairly common: like difficulties of accessing information on custom- ary law principles, absence of a data base, ab- sence of compendia on customary laws etc. Capacities. Capacity-raising of indigenous peoples’ organizations, leaders and activists is required in most situations. Training pro- grammes of PACOS, Hill Tracts NGO Forum lat- er, CIPD and KMKS may provide some ideas. Strategies. Strategies are required on how best to collect information e.g., to codify or not, on how to lobby civic action, litigation in court, human rights advocacy, etc..

B. Implementaion

Implementation or enjoyment or exercise of the customary law rights that are already recog- nized in state law will vary from country to country and people to people. Examples of best practice laws that have been mentioned are the Autonomous District Coun- cils in Northeast India; the Land Titling in Philippines under IPRA; and the Waitangi Tribunal in Aotoroa, New Zealand. In practice, however, there are severe implementation gaps in the said examples. There will most likely be similar implementation challenges in most other countries.

C. Monitoring

Mechanisms to monitor the situation of customary laws in most countries face difficulties. Absence of clear supervisory and oversight mechanisms create severe difficulties, even in cases of relatively strong customary personal law practice, such as Sabah in Malaysia, North- east India, and Chittagong Hill Tracts in Bangladesh. This final section should be a participa- tory process of envisioning and identifica- tion for the particular context of the par- ticipants, which will vary from country to country, and from place to place. Discuss with the participants the three main points as listed below: • Needs, capacities, strategies • Implementation • Monitoring Split up the participants into workshop groups, and have them do poster presen- tations afterwards, in plenary. Suggested Method Module-3