The Worldwide Struggle to Recognize Indigenous Peoples’ Rights to Land
All over the world, Indigenous Peoples are struggling to have the rights over their ancestral lands recognized. Contrasted to the processes which companies such as the ones related to the palm oil industry in Indonesia have to go through to own a piece of land, indigenous communities face a usually harder, expensive and longer battle. For instance, in Peru, in order to have their land rights formalized, indigenous communities are required to undertake at least 19 legal steps and go through seven different government agencies. In Indonesia, despite of the land reform program which includes the granting of customary land titles for indigenous peoples, securing land titles is still challenging for those communities. Moreover, the lack of formal recognition of rights over their lands often culminate in they not having recourses to legally claim it or hinder those lands from being taken over. This difficulty to formalizing communal lands is a common reality in many countries, an obstacle that threatens the livelihoods of more than 2.5 billion people who depend on those lands. Given the worldwide occurrence of this struggle, a far-reaching and multilateral effort is a valuable tool, and international pressure could encourage governments to make important changes.
This article was originally published by Mongabay
For the past four years, the indigenous community of Santa Clara de Uchunya has battled for state recognition of its right to ancestral forests in a remote pocket of the Peruvian Amazon.
The push began in 2014, when a palm oil company, Plantaciones de Pucallpa, bought 200 parcels of land inside the community’s ancestral forests without their knowledge or consent. Large sections of the forest were cleared for farmland, leaving many members of the community without a home.
“An indigenous people without land just doesn’t make any sense,” said Carlos Hoyos Soria, the leader of the Santa Clara de Uchunya community.
While the community had for generations occupied some 80 square kilometers (31 square miles) of land, they had formal legal title to less than 3 percent of it. Without recognition of their land rights, they had no recourse when their land was taken over. In 2016, they filed a lawsuit to compel the government to recognize their constitutional rights to their ancestral land. But the lawsuit remains stuck in the courts.
It’s a familiar story for indigenous groups around the world — communities whose often centuries-long tenure of forests and other valuable ecosystems have gone unrecognized by their respective governments. For the community of Santa Clara de Uchunya and others fighting for this recognition, the battle looks to be a long one: A new report by the U.S.-based think tank World Resources Institute (WRI) shows that indigenous peoples face an uphill struggle navigating extremely complex, costly and time-consuming processes in getting their land rights recognized.
The report highlights the massive imbalance between the difficulty that indigenous communities face and the ease with which companies can quickly take over the land.
In comparing how indigenous communities and companies formalize land rights in 15 countries, the report attributes the uneven playing field to regulatory and policy frameworks that favor company rights over community land formalizations.
This inequity “threatens the livelihoods of more than 2.5 billion people who depend on collectively held land,” says Victoria Tauli-Corpuz, the United Nations special rapporteur on the rights of indigenous peoples.
For indigenous groups, the path toward attaining legal title often involves processes such as writing technical reports or legal documents. In the specific case of Peru, the law requires indigenous petitioners to go through at least 19 legal steps and deal with seven different government agencies in order to have their ancestral land rights recognized.
In practice, the number of steps can be as many as 28, with 12 government agencies involved.
“[O]ur application for land title has stalled for several years, during which time we’ve been met with death threats and violent attacks against our community,” Soria said. “We fear for our lives, but without our land, we lose everything.”
In some cases, the process can drag on for years without a resolution. Another indigenous community in Peru, the Vera Cruz, had to wait nine years after completing the initial steps in the procedure for getting legal recognition as a community — just to be included in a government land title program, which can incur fees of up to $13,000. And when they do get legal title for their land, there are still certain types of land that can’t be included.
In Peru, communities must complete a separate procedure if the government classifies the land as “forestland.” Even then, they can only get a contract to use the land, not ownership rights. In practice, few communities have been able to obtain this contract.
At the same time, companies enjoy fewer barriers to obtaining land rights, enabling them to acquire land or begin operations in as little as 30 days, according to the WRI report. It says that laws and policies regulating how companies obtain land are sometimes conflicting or inconsistent, leaving loopholes that companies can exploit to acquire land more quickly.
In most countries, companies are allowed to secure land rights without screening for existing community claims to the same land. And even when governments require community consultation, businesses only make token gestures instead of sincerely trying to obtain the community’s free, prior and informed consent, the report found.
As with Plantaciones de Pucallpa, which did not properly complete a social and environmental licensing requirement before beginning its operations, some companies take advantage of the government’s limited capacity to monitor for misconduct, the report added.
“When companies acquire land, those acting in bad faith can often find legal, extralegal or illegal shortcuts,” said Laura Notess, lead author of the report and a lawyer with the WRI’s Land and Resource Rights Initiative. “This not only increases the risk of land conflicts, but also puts more ethical companies at a competitive disadvantage.”
She cited the case of a company in Mozambique, which spent two years consulting communities, while others skipped this step altogether, obtaining land in as a little as three months.
As a result, indigenous peoples across the globe own just 10 percent of land, despite occupying as much as 65 percent of the world’s land area. In Peru, a vast amount of community land lacks legal status, with as many as 4,000 groups having their claims pending to a combined 349,000 square kilometers (135,000 square miles) of land.
And without formal legal recognition, indigenous communities like the Santa Clara de Uchunya end up losing their homes to oil palm plantations, loggers and more. They also lose their rights to valuable natural resources like clean water and medicinal plants.
It’s a struggle familiar to the indigenous peoples of Indonesia, who have spent more than 15 years attempting to formalize their rights. Fewer than 20 communities across the country have secured title to no more than 200 square kilometers (77 square miles) of land, out of an estimated 400,000 square kilometers (154,000 square miles) of customary forests, which account for 30 percent of Indonesia’s total forest area.
Yet palm oil companies can secure commercial land rights in just three years, and own plantations that span close to 140,000 square kilometers (54,000 square miles) in total.
A key challenge for indigenous communities in Indonesia applying for land titles is a requirement that they first gain formal recognition of their indigenous status, which can only be conferred through a local bylaw. So they need to lobby their local council to draft and legislate such a bylaw — a costly process that can take years.
It took one community five years just to get the bylaw in place; in areas where local governments have already granted concessions on the land, it takes even longer, or never happens.
The process is also highly reliant on NGO support, and local councilors are typically reluctant to support the bylaw unless they perceive a potential political or electoral benefit out of it.
According to data from the Indigenous Peoples Alliance of the Archipelago (AMAN), there have been efforts to obtain legal recognition of indigenous status in 42 districts and cities across the country since 2015. Since then, however, local councils in just 15 of those districts and cities have issued the necessary bylaws recognizing the indigenous status of the communities.
This already onerous process could get even more convoluted once a bill on the rights of Indonesia’s indigenous peoples is passed. Its proponents have hailed the bill as a much-needed step toward enshrining protection of indigenous rights in the country’s laws. But critics like Muhammad Arman, AMAN’s policy advocacy, legal and human rights director, say it will put up even more obstacles for indigenous groups, including a requirement that each petition for recognition as an indigenous community be signed by the Ministry of Home Affairs.
“The stipulation doesn’t make any sense because it would make the process too long,” Arman told Mongabay by phone. “AMAN has more than 2,300 indigenous communities. Can you imagine how many letters have to be brought to Jakarta to be signed [by the ministry]?”
The new law would further establish a complex procedure for the issuance of collective indigenous land title. First, it would require groups to prove their indigenous credentials through, among other requirements, the establishment of an “indigenous institution” and the existence of “customary legal instruments.”
The bill would also mandate the formation of “indigenous committees” tasked with overseeing the process of acknowledging, verifying and certifying indigenous rights among individual groups to their territory.
Formed by governors, mayors and district chiefs and comprising, among others, officials from the Ministry of Agrarian and Spatial Planning, the committees would replace the current bylaw mechanism, distancing indigenous Indonesians from what is their “inherent right” to self-determination, Arman said.
Lastly, the bill requires mandatory “evaluation” to be carried out by the committees 10 years after the issuance of a customary land title. Should an indigenous group’s adherence to any of the qualifying criteria be found to have lapsed, the land could be reabsorbed by the state.
Arman was especially critical about this part, saying that an evaluation was not necessary as it threatened to revoke the land rights of indigenous peoples that have already been recognized.
“Our constitution clearly says that the state [must] acknowledge, respect and protect indigenous peoples,” he said. “The inclusion of this mandatory evaluation will violate our own constitution.”
Responding to the WRI report, the Indonesian Ministry of Environment and Forestry denied that companies had it easy when it came to acquiring land permits, saying the government didn’t favor companies over indigenous communities.
“In terms of bureaucracy … everyone is the same [in our eyes],” the ministry’s secretary-general, Bambang Hendroyono, said on the sidelines of a recent event in Jakarta. “In fact, we’re pushing for legal recognition [of customary forests] together. So there’s no boundaries [for indigenous communities].”
Bambang said the important point was that the government had taken corrective measures to address the uneven playing field, mainly through President Joko “Jokowi” Widodo’s signature land reform program.
The program aims to distribute 127,000 square kilometers (49,000 square miles) of land to be managed by local communities across the country. Included in the program is the issuance of customary land titles for indigenous peoples.
“What’s important is that there’s been an ongoing process” toward this end, Bambang said.
AMAN’S Arman said indigenous communities in Indonesia still found it challenging to secure land titles, despite the land reform program.
“The treatment that indigenous communities get and the one that investors get are totally different,” he said. “Companies can easily get permits, especially after President Jokowi repeatedly called for the government to improve the ease of investment.”
Jokowi has been trying to boost economic growth by enticing foreign investors, including through a sweeping series of deregulation at the national level. In July last year, he reprimanded the Ministry of Environment and Forestry and the Ministry of Energy and Mineral Resources for issuing regulations that he said impeded investment.
“Compare that to indigenous peoples, who have to fight for their ancestral land rights by obtaining a local bylaw,” Arman said. “Based on our experience, this process is expensive and takes a minimum of two years of time for each bylaw.”
Article published by Hans Nicholas Jong
Photo courtesy of Torrenegra