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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
Bolivia: Empowerment through land rights The territory of the Ese Ejja, Tacana and Cavineño
peoples is located in the northern part of the Bolivian Amazon region. The area is remote and distant from
the political centre of power, and there is hardly any presence of public institutions. Historically,
the natural resources in the area timber and non- timber produce such as rubber and nuts have been
variously exploited by external actors, depending on trends in the world market. The indigenous
peoples have suffered from exclusion, domination and lack of knowledge of their rights and most of
them have been exploited as unpaid labourers, not least through practices of forced labour and debt
bondage. Those who did not fall victims to these practices were forced to move to more inaccessible
areas, thus provoking social fragmentation and conlicts between the indigenous groups. More than
a century of imposition of foreign social, economic, cultural and political domination undermined the
indigenous peoples’ institutions and capacities but did not lead to their elimination.
The emerging indigenous peoples’ movement and organisation around land claims in the 1990s led to
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signiicant legal and political changes. In 1991, Bolivia ratiied Convention No. 169, which triggered a series
of legal reforms, including the Constitutional Reform of 1994, which recognized and solidiied the collective
rights instituted in the Convention. Article 171 of the revised Constitution, granted indigenous peoples the
ownership of their Communal Lands of Origin CLO, and rights to the sustainable use of their natural
resources. Another result was the 1996 Agrarian Reform Law, which recognized the collective rights
of indigenous peoples to their territories, as well as indigenous customary law and indigenous norms of
distribution, redistribution and use.
The reforms were followed by long-term and large- scale efforts to demarcate and title CLOs, which,
over a period of ten years, resulted in the legal recognition of more than 500 “peasant” communities
see section 1.4. and 10 CLOs in the Northern part of the Amazon, having profound political, legal,
social and economic impact on the communities.
In this context, the Ese Ejja, Tacana and Cavineño peoples, through the Indigenous Organisation of
the Bolivian Amazon Region CIRABO, claimed collective titling of their territory CLO. The CLO
was legally recognized through two consecutive land titles issued in 2001 and 2005. The total surface
of the CLO is 407,584 hectares and the titles are held collectively by the 28 communities living in the
territory, with a total population of 3.594 inhabitants 2000.
The process towards legal recognition of the CLO involved a series of actors and steps, including
awareness-raising, capacity-building, legal and administrative procedures and ield demarcation.
Also, it implied a confrontation with the local, regional and national elite, which had previously
controlled the area. In contrast, for the Ese Ejja, Tacana and Cavineño peoples, the titling process
implied aspirations of a new type of social, economic, cultural and political relations. The
titling marked a major transition point with evident qualitative differences:
“The land belonged to private employers and we, the indigenous families, worked as ‘siringueros’
[rubber tappers], we lived there until we died. We were all controlled by the employers, because they
thought they were the owners of the land and we only worked for them.”
9
“They did not recognise us as indigenous, they wanted us to present our papers as peasants but
9 Testimony, workshop in the Tacana Community San Salvador, 2007.
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we denied, we had to present as an indigenous community, and therefore we united with our
brothers Tacana and Cavineño, to have them recognise our rights. Now, we manage our territory,
we are the owners, we decide over our natural resources and at the same time, we maintain our
cultures.”
10
The Ese Ejja, Tacana y Cavineño peoples are moving towards Indigenous Autonomy, as recognized in the
2009 Bolivian Constitution, based on the use and control of their territory, and linked to an integrated
vision of their future, related to their identity, cultural practices, rituals, spiritual beliefs and system of
territorial administration and control. Centro de Estudios Jurídicos e Investigación Social
CEJIS: Impactos sociales, económicos, culturales y políticos de la aplicación del Convenio No. 169 de
la OIT, a través del reconocimiento legal del Territorio Multiétnico II, a favor de los pueblos indígenas Ese
Ejja, Tacana y Cavineño en el norte amazónico de Bolivia, ILO, 2009.
Norway: The Finnmark Act In April 2003, the Norwegian Government
submitted the Finnmark Act concerning land rights in Finnmark County to the National Parliament.
10 Interview with Ese Ejja leader Antenor Monje M, November 2007
The proposed legislation was strongly criticized and rejected by the Sami Parliament and various
Sami bodies and organization. It was argued that the proposed legislation did not meet the
requirements of international law, including Article 14 of the ILO Convention No. 169. It was also said
that the Government had not undertaken proper consultations with the Sami Parliament in developing
the legislation. The National Parliament established direct contact
with the Sami Parliament concerning the substantive content of the Finnmark Act, when it became clear
that there were strong doubts whether the proposed legislation and the process met international
standards.
In 2004, the Parliament’s Standing Committee on Justice established a dialogue with the Sami
Parliament and the County Council of Finnmark. This process concluded with an agreement on
the content of the Finnmark Act between the National Parliament and the Sami Parliament.
Furthermore, in 2005, the Government and the Sami Parliament signed an agreement on procedures for
consultations between State authorities and the Sami Parliament, aimed at avoiding similar situations
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in the future. In summary, the content of the Finnmark Act, as
agreed between the National Parliament and the Sami Parliament, is as follows:
The Finnmark Act transfers approximately 95 per cent of Finnmark County about 46,000 sq. km to
a new agency called the Finnmark Estate. This area was previously owned by the Norwegian State.
The purpose of the Act is to facilitate the management of land and natural resources in the
county of Finnmark in an ecologically sustainable manner for the residents of the county, and
“particularly as a basis for Sami culture and reindeer husbandry”. The basic principle of the Act is to
legally recognize that the indigenous Sami people, through long-term use of land and natural resources,
including water resources, have the right of use and ownership of the territory concerned.
A Commission and a tribunal are set up for the purpose of further identifying the use and ownership
of lands and resources in Finnmark, based on the principle of established custom and immemorial
usage. According to section 3 of the Finnmark Act, it shall be implemented in conformity with
ILO Convention No. 169 and international law concerning indigenous peoples and minorities. It is
stated in section 3 of the Act that ILO Convention No. 169 shall prevail in cases of conlict between the
Convention and the provisions of the Act. John Henriksen: The Finnmark Act Norway, a Case
Study. ILO, 2008.
Uganda: Right to ancestral territory Like most African countries, Ugandan laws place
the control of natural resources with the state. The Benet, a small hunting-gathering community living
in the northeastern part of the country, were evicted when the forest in which they lived was turned into
a protected area. The Benet took the case to the High Court complaining that their ancestral territory
had been denied them and that they had no means of livelihood. On 27 October 2005, the Ugandan
High Court ruled that “the Benet Community [...] are historical and indigenous inhabitants of the said
areas which were declared a Wildlife Protected Area or National Park.” The Court ruled that the
area should be de-gazetted and that the Benet are “entitled to stay in the said areas and carry out
agricultural activities including developing the same undisturbed”.
http:www.actionaid.orguganda Uganda Land Alliance: http:www.ulaug.org
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India: Land and Territories The 1949 Constitution of India has provisions to
protect indigenous peoples’ rights over their land. Article 371A is a special provision for the state
• of Nagaland, which is inhabited mostly by the
Naga indigenous peoples. According to the Article, no Act of the Indian Parliament shall
apply to the State of Nagaland in respect of matters such as the ownership and transfer of
land and its resources. Article 371G, like Article 371A, excludes the
• application of Act of the Indian Parliament in
certain respects, including the ownership and transfer of land, in the State of Mizoram.
There are twelve “Schedules” to the Constitution of India, which classify the nature of administration
and the powers, authority and responsibilities of the various administration organs. The Fifth and
Sixth Schedules deal with administration in the tribal areas.
The
Fifth Schedule deals with the administration
and development of tribal areas and the establishment of Tribal Advisory Councils, to
advice on matters pertaining to the welfare and advancement of the Scheduled Tribes. Among
others, it empowers the Governor of a State to make regulations on areas such as the transfer of land by
or among members of the Scheduled Tribes. This prevents transfer of land to outsiders and protects
the indigenous peoples against alienation from their land.
The
Sixth Schedule provides for the administration
of tribal areas in the States of Assam, Meghalaya, Mizoram and Tripura by designating tribal areas as
autonomous districts or autonomous regions where there are different Scheduled Tribes. The Schedule
entrusts District Councils to make laws pertaining to “all areas within such region” and Regional Councils
to make laws on areas including the “allotment, occupation or use, or setting apart, of land;
management of forest; canal or water course for agricultural purpose and shifting cultivation”
.
11
The 2006 law on
Scheduled Tribes and Other Traditional Forest Dwellers Recognition of
Forest Rights Act, 2006 in short the Forest Rights Act has been commended as a watershed event in
11 Sixth Schedule; Paragraph 31.
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the struggle of the indigenous peoples for their land. The Act aims at correcting historical injustices in
the reservation of forest land, which previously disregarded the presence of forest-dwelling
communities, the majority of them being indigenous peoples. In the earlier legislations related to
forest,
the forest dwellers were regarded as illegal occupants or trespassers.
12
The present law recognises community rights as well as individual
rights, including the rights to hold, live and cultivate on the forest land and ownership over minor forest
produce. The forest dwellers are also given the right to protect, regenerate and conserve community
forest; the right to have access to biodiversity; and community right over traditional knowledge.
It also recognises community tenure and secures this through a due process initiated by the lowest
unit of administration, the Gram Sabha or Village Assembly. In case of displacement, resettlement of
the holder of forest rights can only take place after free informed consent has been obtained in writing
from the Gram Sabha.
These are some of the laws and policies created speciically for indigenous peoples and although
they could be considered as limited in some areas, they go a long way in protecting the rights of the
indigenous peoples to their lands. http:tribal.nic.inactTA06.pdf.
Case prepared by Chonchuirinmayo Luithui.
Nicaragua: The Awas Tigni community Awas Tingni is a Sumo-Mayangna indigenous
community in one of the Northern Autonomous Regions of the Caribbean of Nicaragua. In
December 1993, the national government granted a concession to a private company for logging in
the territory, which was claimed by Awas Tingni on the basis of traditional land tenure. The case was
reviewed by the Inter-American Court of Human Rights on August 2001. After negotiations, an
agreement was signed in 2004, which provided for economic beneits for the community and
committed the government to a process by which it would deinitively identify and title the community’s
traditional lands. A second concession granted by the government to another company was declared
12 For example, the Forest Act, 1927; the Wild Life Conservation Act, 1972; the Forest Conservation Act, 1980.
invalid by the Nicaraguan Supreme Court. After a long and complex process, the demarcation and
titling of land were inalized for Awas Tingni in the beginning of 2009.
Nicaragua responded to the demand for titling of indigenous and ethnic land and territory on the
Nicaraguan Caribbean coast by enacting Law 445 in 2003. This law establishes the rights set
out in the International Treaties signed by England and Nicaragua when the Moskitia territory was
incorporated into the rest of Nicaragua in 1894. Law 445 puts into practice the provisions of
these international treaties as well as the 1987 constitutional provisions, and is a speciic legal
instrument regulating the demarcation and titling of the lands of indigenous peoples and ethnic
communities.
The biggest problem encountered in the demarcation process is the lack of inancial
resources to be provided by the State. As such, the demarcation and titling process is moving slowly.
http:www.manfut.orgRAANley445.html Case prepared by: Myrna Cunningham.
Panama: Land law Much of the land occupied by indigenous
communities in Panama, both ancestrally and today, is located outside the polygons of recognised
indigenous territories. With the enactment of Law 411 in 2008, the property or land of indigenous
families found outside the established regions see Section 5.3.4. were recognised, as they
feared being displaced at any time. One example is the 40 plus Emberá–Wounan communities not
recognised or protected by past legislation and that have formed the General Congress of Communal
Land. This Congress is a traditional representative organisation for these communities, and its
members are legitimately selected by the people. Case prepared by: Myrna Cunningham.
vIII. NATURAL RESOURCES
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8.1. RIGHTS TO NATURAL RESOURCES, CON- SULTATION, BENEfITS AND COmPENSATION
