Laws and Policies Related to the Recogniion of the Right

RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP Gaps Analysis UNDRIP NATIONAL OR GAPS CONSIDERATIONS OPTIONS PROVISIONS ON LOCAL LAWS IMPLICATIONS RECOMMENDATIONS CUSTOMARY OR POLICIES LAWS Paragraph or Specific laws, Specific laws, Can current laws, What needs to be Article number policies policies NOT policies be used to done? How? By conforming conforming support indigenous whom? Where? with UNDRIP with UNDRIP peoples’ positions When? For how or interests? Are long? there loopholes in the law that can be used for or against indigenous peoples? Should the matter be approached legally? Or politically? Using a Gaps Analysis table, enable the participants to assess the situation in their particular country with regards to state laws and policies that either recognize and respect or disregard and violate indig- enous peoples’ customary law. Suggested Method 59 Module-3 policies too, the recognition could be a part of a sectoral policy such as Land Policy, Forest Policy, Environment Policy, etc. At the same time, there are other laws and policies or specific sections or provisions of laws that contradict or violate customary rights, expressly or implicitly. These could be forest laws that do not recognize customary land rights, land laws that do not recognize oral customary traditions, laws on adminis- tration of justice that do not recognize the au- thority of indigenous leaders and officials to dispense justice, etc. RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP

C. Challenges in Implementaion

In many Asian countries, indigenous peo- ples and states encounter the following chal- lenges with regards recognition and respect of customary law. In general, these are either negative laws and policies, or of non-implemen- tation of positive laws: • There exist conflicts between state law and customary law, especially regarding land and resources. The status of custom- ary law is often regarded to be of a lower status and of lower priority in application. • With respect to family law, a great chal- lenge is gender issues: women do not enjoy equal rights in the customary laws of nu- merous indigenous peoples worldwide. • Some customary laws may also conflict with national and international human rights standards, such as on the matter of women’s rights and child rights. • Whether to codify customary law or not often becomes a controversy among indig- enous communities, or between an indig- enous people that relies on flexible and adaptive practice and a state that requires codifica- tion. Codification is not the same as simply writing down customary law. It depends on the practice, i.e., what prevails. One challenge is thus how to sustain customary law without codification, and thus maintain its flexibility and adaptability. • Arbitration vs. court cases: arbitration under customary law is cheaper, faster, not stuck in formalities, more flexible and allows for more nuances and local adaptations. • In some cases, establishing individual membership in an indigenous community becomes problematic. For example, do the children of a mixed-marriage family an indigenous parent and a non-indigenous parent keep their membership? • In still other cases, equal inheritance of land by men and women may conflict with the community’s interest to maintain contiguous clanvillage territories, and even its collective control over land in the case of mixed marriages. For Discussion: The Issue of Equity and Equality In some matrilineal societies, such as the Khasi and the Garo in Bangladesh and Northeast India, only women, and usually the youngest daughter, inherits the parental homestead. This may be a case of equity, without being “equal” in the mathematical sense. Ask the participants to identify the ways, in actual practice, in which the positive laws and policies are being neglected, un- der-implemented, unimplemented or even violated by contrary or contradictory acts or omissions. Ask them to locate where the difficulty lies – with administrative proce- dures or development projects, etc. The exercise should highlight whether the remedy lies with legal reform amendment of the law, or administrative acts imple- menting rules, or adjudication winning cases in court and establishing precedent cases, or human rights advocacy at na- tional or international levels. If part of the challenge lies in the indige- nous peoples’ absence of awareness about their rights, this can also be identified here. Suggested Method 60 Module-3 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP Philippine societies, both indigenous and non-indigenous, are largely bilineal. But in many of them, such as the Kalinga in the Northern Luzon Cordillera, it is also assumed that the young- est daughter will inherit the parental homestead. This is because it is also assumed that, even after she marries and establishes a family of her own, the youngest daughter, along with her fam- ily, will stay with her parents to take care of them through old age, until their death. She will thus “earn” the homestead. This may be regarded as a case of “equity” but can also be seen as a case of “inequality” inasmuch as it limits the life choices of the youngest daughter whereas the other children are free to go and do as they will.

IV. EXPERIENCES AND LESSONS LEARNED

A. Advocacy and Lobbying Related to the Right

Here are some examples of best practices on customary resource rights from different parts of the world: INDIA. Naga, Mizo rights in the constitution of India. The recognition of land rights and reli- gious and social customs of indigenous peo- ples of Northeast India Mizos and Naga, for example in the Constitution of India can be brought in here. [Article 371A for Nagaland, and article 371G for Mizoram. Their provisions are al- most identical. Article 371A was inserted through the Constitution 13th Amendment Act, 1962, while article 371G was introduced through the Constitution 53rd Amendment Act, 1986.] INDIA. Autonomous District And Regional Councils, Northeast India. Sixth Schedule to the Constitution of India Article 2442 and 2751. Autonomous District Councils “ADCs” and “Regional Councils” in Northeast India are an example of a semi autonomous unit within an autonomous state province to accommodate indigenous peoples a measure of autonomy from the state in which their group may not form a numerical majority and thus be marginalized. ADCs’ authority over land and customary law is recognized. For administration of justice in- volving customary law, ADCs’ are authorized to establish their own courts. Thus this is a form of indigenous juridical autonomy, juridical because it covers both legislative and judicial matters. PHILIPPINES. Indigenous Peoples Rights Act IPRA. For customary resource rights – again, with necessary caveats – IPRA, Philippines may also be mentioned. Challenges and difficulties include i inadequate funding of the National Commis- sion on Indigenous Peoples NCIP, ii slow pace of provision of titles; iii conflicting traditions and customs between communities, etc. Ask the participants to give examples they know about good practices and learning experiences in the assertion or exercise of the right to observe customary law, in the fields of: • Advocacy and lobbying for the state and other non-state actors to recog- nize and respect customary law; • Action and mobilization to defend the said rights; • Actual exercise of the said rights. Suggested Method 61 Module-3