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V I I . L A N D A N D T E R R I T O R I E S
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
Peru: Conversion of communally owned land into individual property
In 1998, an Act was promulgated for the coastal region in Peru, empowering individual community
members to take the decision to dispose of communal lands. Thereby, the Act allegedly
bypassed the decision-making authority of the General Assembly of the Community, which is
the highest-ranking decision-making body in the communities.
In its conclusions, the Tripartite Committee established to analyse the case considered that it
is not for the ILO to determine whether individual or collective ownership is most appropriate for
indigenous peoples in a given situation, although Convention No. 169 recalls the special importance
of the relationship of indigenous peoples with the lands or territories, and in particular the collective
aspects of this relationship. From its experience acquired in the application of the Convention, the
Committee noted that the loss of communal land often damages the cohesion and viability of the
people concerned. The Committee further noted that:
This is why, in the preparatory work for the Convention, many
delegates took the position that lands owned by indigenous persons,
and especially communal lands, should be inalienable. In a closed decision, the
Conference Committee decided that Article 17 should continue the line of reasoning pursued in
other parts of the Convention, according to which indigenous and tribal peoples shall decide their own
priorities for the process of development Article 7 and that they should be consulted through their
representative institutions whenever consideration is being given to legislative or administrative measures
which may affect them directly Article 6.
In its concluding remarks to the speciic case, the Committee noted that:
In the present case, apparently the Government has decided to favour individual ownership of the
land and, in doing so, has ruled out the possible participation of community institutions in the
decision-making process, which is not in conformity with the Convention. The Committee notes the
Government’s statement that this form of individual landownership is more productive and that it is
only regulating an existing practice; although this may or may not be in accordance with the wishes
of the peoples concerned, the Committee has not seen any indication that the indigenous peoples of
the country have been consulted on the matter as required by the Convention.
Report of the Committee set up to examine the allegation regarding non-compliance with ILO
Convention No. 169. Submitted 1997. GB.270164.
Colombia: traditional occupation. In examining a case concerning the granting of
an environmental licence to an oil company for exploration activities within the territory of the
indigenous U’wa people without prior consultation, the ILO Committee of Experts noted that the
Government had applied the criterion of “regular and permanent presence of indigenous communities”
in deciding whether the project would affect the communities in question.
The planned exploratory well is located in the middle of the U’wa ancestral lands but about 1.7 kilometres
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from the boundaries of the legally recognised reserve. However, the Committee concludes that
the area of operations of the exploratory well project would have an impact on the communities in that
area, including the U’wa communities.
The Committee recalls that the concept of indigenous peoples’ “rights of ownership and
possession over the lands which they traditionally occupy”
, as stipulated in Article 141 of Convention No. 169, is not necessarily equivalent to the criterion
of “regular and permanent presence” used by the government. Furthermore, the Committee, recalls
that the “Convention does not cover merely the areas occupied by indigenous peoples, but also ‘the
process of development as it affects their lives... and the lands that they occupy or otherwise use’ Article
7, paragraph 1”.
Thus, the Committee concludes that: “The existence of an exploratory or operational project immediately
adjacent to land that has been oficially recognized as a reserve of the peoples concerned clearly falls
within the scope of the Convention.” Governing Body, 282nd Session, November
2001, Representation under article 24 of the ILO Constitution, Colombia, GB.282143.
7.5. PRACTICAL APPLICATION: LANDS AND TERRITORIES
