Indigenous Rights and Community Forests Management

Indigenous Rights and Community Forest Management

The correlation between forest-dwelling communities and forest conservation is highest among communities who having gained legal recognition and control of their land through national and international struggles, which have been invigorated by the indigenous rights movement. Indigenous rights expert James Anaya has identified what he sees as the two most pressing concerns for indigenous peoples. Each of these has important implications for development projects among indigenous peoples, including projects which promote community forest management.1  The first most pressing concern is the need for external actors who are seeking to engage with communities to engage in a process of consultation with the local indigenous communities, and to achieve consent from these communities before moving forward with projects. The second issue is the need for nondiscrimination in law and policy towards indigenous peoples. Dedication to nondiscrimination can cut both ways though, as non-indigenous local communities often feel that they receive the short end of the stick when special measures are taken to support indigenous groups.  Anaya addresses this dillema by making a strong argument that indigenous rights are not new or unique human rights, but instead are human rights applied to the unique contexts of indigenous communities. In other words, it is not that indigenous communities are being given special privileges, but instead that they are only now being guaranteed basic human rights through the indigenous rights legal framework.

Given the unique context of indigenous peoples, the assurance of their basic human rights requires a certain amount of selective treatment. While Anaya and others make a strong argument for the special treatment of indigenous communities, the problem of perceived discrimination remains and will only grow stronger as indigenous communities continue to assert their often contested rights. So far, indigenous communities in Latin America have not made outright calls for complete separation and sovereignty, but even as the relative position of sovereignty continues to shift in their favor, the limits of their “contextual” human rights will be tested.

Support for legal sanctioning of the rights of indigenous communities to their traditional territories in Latin America received a major boost from the International Labor Organization Conventions (ILOC) #107 in 1957, and its significant revision #169 in 1989.2 This convention produced a document pronouncing that indigenous people had certain previously unrecognized rights.3 These rights included, among others:  the right to the communal ownership of their ancestral lands; the right to the exercise of their customary laws; the right to represent themselves through their own institutions; the right  to not be removed from their lands except under very exceptional circumstances and with compensation; the right to be consulted and to participate in decision-making processes that affect their way of life4, and finally, the right to management of the natural resources on their territories.5 Although these pronouncements were powerfully symbolic, enforcement of these rights was lax and largely left up to the individual countries.6

The international legal framework of indigenous rights was further developed within the UN human rights structure of the Human Rights Committee (UNHRC), as this body worked in part to advance and enforce human rights norms in situations involving indigenous communities.7 The UNHRC is the treaty-based multi-lateral organization responsible for enforcing the International Covenant on Civil and Political Rights (ICCPR).8 Articles 1 and 27, in particular, provide for special rights of indigenous groups and their members.9 In 1982 another significant project was initiated by the United Nations Working Group on Indigenous Populations. The initial result of this effort was the development of the United Nations Draft Declaration on the Rights of Indigenous Peoples, which developed and codified many of the principles expressed in the ILOC document.10  After a long and arduous process of negotiation, a draft of the document was completed in1994.11 However, not until 13 years later, and 25 years after the process was first initiated, was the Declaration finally approved through a UN resolution in 2007.12  Article 3 of the Declaration gives indigenous people the right to self-determination and Article 9 guarantees the right to belong to an indigenous community and live in accordance with indigenous customs and traditions.13  Further, Articles 19 and 20 recognize the right of indigenous people to participate in all levels of decision-making in matters concerning them.14 Article 26, in particular, speaks to the relationship of indigenous communities to their land and resources.15

In 1992, the Convention on Biological Diversity was passed, giving indigenous peoples the right to share benefits derived from biological and genetic resources belonging to them.16 This has led to one of the most recent developments within the indigenous rights framework, guaranteeing intellectual property rights to certain forms of traditional knowledge.  Intellectual property protections came about as a response to the growing incidents of misappropriation of indigenous knowledge regarding the therapeutic benefits of various plants by parties connected to large pharmaceutical companies in a practice that has come to be known as biopiracy.17

Enforcement of rights guaranteed under international law is never a sure thing, especially for indigenous communities with relatively limited financial resources and western social capital. However with the support of indigenous lawyers, NGO’s, and non-indigenous supporters, indigenous communities around the world have made significant strides in the enforcement of their rights both in international tribunals, such as the Inter-American Court of Human Rights, as well as in domestic courts. The international attention and support given to indigenous communities has served to pressure States to formally recognize indigenous land tenure rights in many cases. However, many communities’ land rights are not formalized.  Even the formal rights many communities do have are tentative, especially when tested against the power of the State when it perceives its interest to be in conflict with that of local indigenous communities.

As Murphree (1993) predicted, the key to actual meaningful involvement of local communities in the planning and practice of resource management has proven in many cases to mirror the extent to which the local communities become proprietors of their own land and resources. In the case of isolated, disenfranchised forest-dwelling indigenous communities, the main impetus to the recognition of their proprietary rights is through the indigenous rights framework.   A key function of the ownership of land and resources is the ability to restrict uncontrolled access and exploitation of resources.18  In this way the tragedy of the commons can be minimized.  Many forest-dwelling indigenous communities in Latin America remain without these rights, either formally or in practice. Even those with formalized rights, having already experienced some practical benefits, stand to gain much more through the enforcement of their legal rights, and the development of equitable partnerships with outside stakeholders. The lack of enforcement of territorial boundaries, vulnerability of the resources within, and the lack of equitable contracts and relationships with timber companies are examples of ways in which the mere statutory recognition of territorial boundaries is not enough. Continued progress in these areas is only possible when all stakeholders are committed to the goal of treating indigenous people with dignity and respect. The continued advancement of the values of the indigenous rights framework in development policy is one avenue which leads towards this goal.

Footnotes

1 See Anaya, S. James. 2009. International Human Rights and Indigenous Peoples.

2 International Labour Organisation ILO, Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, 28 I.L.M. 1382; Colchester.

3 Id.

4 Id. at art. 6.

5 Id.

6 Colchester.

7 Anaya, James. 2004, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 3, 229. Oxford U. Press, 2d ed.

8 International Covenant on Civil and Political Rights, Dec.16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976).

9 Article 1 indicates that "[a]ll peoples have the right to self-determination [and] by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development." Id., at art. 1. Article 27 protects the rights of individuals within the indigenous groups to the enjoyment of their culture, religion, and language. (“In those States in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”) Id., at art. 27. Article 27 has been broadly interpreted by the UNHRC to protect an array of rights related to indigenous groups' cultural integrity. Anaya, supra. The UN System generally only allows claims between state parties against another, 121 there is an Optional Protocol within the Covenant that enables individuals to bring claims for the violation of individual’s rights like those covered in Article 27. Id.

10 Draft Declaration on the Rights of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/1994/56, Aug. 26, 1994, 34 I.L.M. 541.

11 Id.

12 UN Declaration on the Rights of Indigenous People. For a helpful review of the contents of the Declaration, see Stefania Errico, UN Declaration on the Rights of Indigenous Peoples in Adopted: An Overview, 7 Hum. Rts. L. Rev. 756 (2007).

13 Id. at art.3 and art.9.

14 Id. at art. 19 and art. 20.

15 Art. 26 states: 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2.Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3.States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. Id. at art. 26.

16 Belcher & Schreckenberg.

17. Id.

18. Agrawal & Gibson.