Tag Archives: indigenous groups

“Endorois decision” update – Kenyan task force appointed

Last Tuesday, Minority Rights Group International Legal Fellow Rebecca Marlin contributed a guest post on the failure of the Government of Kenya to take any meaningful steps to implement the groundbreaking “Endorois decision” issued in 2010 by the African Commission on Human and Peoples’ Rights. However, by Friday, the situation had improved, if only slightly.

My first notice came in a comment to a subsequent post by Sam Marigat, the head of the Endorois Welfare Council, but the news was also quick to make the Kenyan press. While the details remained nebulous, it seemed that the Kenyan Government had finally appointed the task force responsible for looking into the concrete modalities for implementation of the decision.

Today, a hat tip to colleagues at MRG, who have acquired a copy of the appointment order and given their first analysis of it in a press release. While the order is a welcome sign of progress, MRG has noted a number of serious concerns, not least the fact that the task force is not required to consult with the Endorois community, nor is there an Endorois representative included.

Meanwhile, the phrasing of the mandate, which refers to assessing ‘the practicability of restitution’ and ‘the potential environmental impacts on Lake Bogoria… of implementation’ leaves ample room for skepticism. While the appointment of the task force is a necessary and overdue step toward implementation of the ACHPR’s findings, it must be watched carefully to ensure that it does not simply become a means of thwarting them.

As Mr. Marigat pointed out in response to MRG’s original post, the signs have been grimly clear so far:

Our Kenyan government has not demonstrated any iota of commitment to implement the ACHPR recommendations. Some of the Endorois elders who suffered personal injury are either terminally ill or dead. We buried 2 recently.

“The Endorois decision” – Four years on, the Endorois still await action by the Government of Kenya

by Rebecca Marlin

Rebecca Marlin is currently the Legal Fellow at Minority Rights Group International (MRG) in London. She earned her B.A. from Wellesley College and her J.D. from Fordham University School of Law. During her time at MRG she will be working extensively with the Endorois to achieve implementation of the 2010 African Commission decision granting them rights to Lake Bogoria.

For the Endorois of Kenya’s Lake Bogoria, the process of reclaiming their land from the government of Kenya has been one step forwards and two steps back. In 2003, MRG and partner organisation Centre for Minority Rights Development (CEMIRIDE), acting on behalf of the Endorois Welfare Council, went before the African Commission on Human and Peoples’ Rights to demand that the Kenyan government recognise the rights of the Endorois to Lake Bogoria.

The Endorois had inhabited Lake Bogoria for over 300 years before being evicted by the government in the 1970s. In 2010, the Endorois won the landmark case Centre for Minority Rights Development and Minority Rights Group International (on behalf of Endorois Welfare Council) v Kenya. The land rights aspects of this groundbreaking decision have been discussed on this blog here and some of the regional implications here.

A pattern of empty promises emerges

Immediately following the Commission’s ruling in February 2010, the government of Kenya welcomed the decision, promising to begin implementation. A large celebration of the decision was held at Lake Bogoria; the Minister of Lands was in attendance and the momentous occasion was broadcast on television nationally. Kenya’s progressive National Land Policy had been enacted only a few months prior to the ruling and, with a forward-thinking new Constitution in the drafting stages, it seemed the decision might soon be translated into restitution of land, compensation, and benefit-sharing for the Endorois.

However, in May 2010, a report on implementation due to be submitted by the government of Kenya to the African Commission failed to arrive. Throughout 2010 and 2011, the government of Kenya failed to take any significant action on the recommendations. One MP openly challenged the Minister of Lands in Parliament about this delay in January 2011; the official response from the Minister was that he would not be able to take any action until he received an official sealed copy of the 2010 decision – despite the fact that the decision had been officially adopted and published one year earlier. A sealed copy was thereafter delivered to the Minister, but this did little to improve the situation.

When pressed on the matter, the government continues to affirm that it supports the decision and is taking steps to carry out the Commission’s recommendations. Yet, steps taken by the government indicate the exact opposite and new legislation on Lake Bogoria threatens to further separate the Endorois from their land.

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Controversial World Bank safeguard policies rewrite goes to consultations

by Rhodri C. Williams

Perhaps unsurprisingly, the World Bank’s rollout of a draft set of reworked safeguard policies took little note of a critical petition initiated last month by Inclusive Development International. However, even as the Bank announced a consultation period scheduled to run through the end of November, IDI elaborated on its concerns in a comment in Devex.

Without having yet had time to read through the Bank’s draft, it is difficult not to be concerned by the fundamental nature of the regression indicated by IDI’s criticisms. Elimination of the requirement to prepare advance resettlement plans, removal of substantive monitoring rules, the right to opt out of indigenous peoples safeguards, and an approach so flexible that the World Bank Inspection Panel “would have no hard rules against which to hold the World Bank accountable.” As Nezir Sinani notes in Huffington, the opt-out provision alone could undo a real – but fragile – sea change in the recognition of indigenous rights in parts of Africa.

Its hard to imagine what progressive innovations could offset the negative effects of all the above, but the Bank’s plug for the new draft is both disarmingly bullish and alarmingly bland, checking off all the catchphrases without giving any meaningful indications of the actual changes involved:

Through the revision of our environmental and social safeguard policies, the World Bank is ramping up its standards to ensure the delivery of an environmental and social framework which is more efficient and comprehensive; includes a strengthened approach to the management of environmental and social risks that will support sustainable development through standards that are clear to those impacted by the projects we finance, those who implement, and those holding us to account.

It is no secret that the Bank’s public statements tend to run more progressive than its practice, and that there are real dilemmas that the Bank faces in trying to live up to its own standards. But to gut the standards while claiming to strengthen them would not only be wrong, but downright Orwellian.

 

What future for reform? Tracking changes in forest tenure since 2002

by Alexandre Corriveau-Bourque

Alexandre Corriveau-Bourque is a Tenure Analyst with the Rights and Resources Initiative, and one of the lead researchers of “What Future for Reform?” along with Fernanda Almeida and Jenny Springer. He is currently managing and updating RRI’s various tenure tracking data sets and developing new methodologies to track changes in community tenure.

Few things are as political as the rights to the world’s remaining forest land. Forests are viewed by a wide range of actors as a source of timber, fiber, food, fuel, medicine, carbon storage, biodiversity, spirituality, and as sites of cultural belonging. Vast mineral, gas, and oil resources are also found beneath the world’s forests. As populations and incomes grow, pressure will continue to rise on the shrinking, yet increasingly important forest estate and the resources it contains. To understand the current contestation for these resources, it is important to begin with the following question: Who ‘owns’ or ‘controls’ these resources?

While the answers are rarely clear, and frequently contested, the Rights and Resources Initiative (RRI) and its Partners have been developing approaches to answering it since 2002. RRI’s recent report, What Future for Reform? Progress and slowdown in forest tenure reform since 2002, is the latest in a series of reports tracking developments related to four different statutory forest tenure categories: 1) forest land under government administration; 2) forest land designated for Indigenous Peoples and local communities; 3) forest land owned by Indigenous Peoples and local communities; and 4) forest land owned by individuals and firms.

The report presents tenure data from 2002 and 2013 under these four categories for 52 countries, representing nearly 90 percent of the global forest area.[1]  Of these, the 40 countries that have complete data for each category and time-period exclusively inform the global aggregates. The aggregates for low and middle income countries (LMICs) are drawn from 33 countries.

Key findings

On a global scale, it is clear that while governments have increasingly recognized indigenous and local community control and ownership of forest land, governments retain the lion’s share of the global forest estate. Between 2002 and 2013, the proportion of forests owned or controlled by Indigenous Peoples and local communities increased from just over 11 percent of the global forest estate (at least 383 Mha) to 15.5 percent (at least 511 Mha). The proportion owned by individuals and firms only increased by 0.6 percent over this same time period.  Continue reading

Land and Post-Conflict Peacebuilding: The Peace Deal for Mindanao and its lessons for practitioners of environmental peacebuilding

by Paula Defensor Knack

Paula Defensor Knack is a is a former assistant secretary for Lands and Legislative Affairs at the Philippine Department of Environment and Natural Resources. She wrote on “ Legal Frameworks and Land Issues in Muslim Mindanao” in Land and Post-Conflict Peacebuilding and provides an update in this guest posting. NB: This material may not be published, broadcasted, rewritten or redistributed in whole or part without due reference to the author.

This blog provides a guide to peace-builders in analyzing developments in the Mindanao peace process that occurred since the publication of my chapter on “Legal Frameworks and Land Issues in Muslim Mindanao” (available here in pdf) in Land and Post-Conflict Peacebuilding. The recent signing of the Bangsamoro peace deal for Mindanao or the Comprehensive Agreement on the Bangsamoro (CAB) has received both praise and criticism. It is a work in progress as the CAB has been submitted to Congress for the passage of the Bangsamoro Basic Law.  This posting, therefore, represents a guide to peace-builders in understanding the implications of these latest developments .

This blog post is part of a continuing analysis, shared with the 700 or so members of the Environmental Peacebuilding group and policymakers, regarding each phase of this protracted conflict and its series of failed peace agreements. The analysis raises questions relevant to conflict studies, negotiation, mediation, law, political science, natural resources and environmental management, governance and peacebuilding, which may serve as guidance to both students and practitioners. A full-blown academic  analysis of this latest peace deal is to follow, but readers are also encouraged to familiarise themselves with the volumes in the Environmental Peacekeeping series related to land, natural resources and governance for case-studies providing lessons on effective post-conflict governance.

The Demands on a Peacebuilder

The work of peacebuilder can be complex, demanding and even life-threatening. Continue reading

What can indigenous peoples learn from the Åland Islands land acquisition regime?

by Rhodri C. Williams

This comment is cross-posted from the Åland Islands Peace Institute’s blog with the generous permission of my colleagues there. The Peace Institute is an independent foundation that examines peace and conflict issues from the perspective of the Åland Islands’ special legal status, as recently described in an edited volume on the utility of “the Åland example” in contemporary peace negotiations and peace-building. My below comment gives an overview of the issues I am currently researching with funding from the Åland Islands Cultural Foundation. For an earlier take on these issues, see a chapter I wrote for a 2009 study on “the foundations of the Åland autonomy” while still a guest researcher at the Peace Institute.

The autonomy regime enjoyed by the Åland Islands within Finland is an extraordinary political experiment that has withstood the test of time better than most of its kind. It has the authority of age, dating back to agreements brokered by the League of Nations during the interwar period. At the same time, the autonomy has not merely survived but thrived, having been progressively expanded in scope both during and after the Cold War. Perhaps most tellingly, Åland negotiated a path into the EU alongside Finland in 1994 that not only allowed it to retain the key features of its regime, but also endowed it with the confidence to negotiate hard for further arrangements seen as necessary to prevent its sub-national powers from being rolled over by the supra-national juggernaut in Brussels.

Having lived on Åland full time from 2004 to 2010 and made regular summer pilgrimages from Stockholm ever since, the place has made a deep impression on me and shaped my thinking about the rights and wrongs of minority protection. This is saying something as well, given that I was a skeptic on arrival. As an American raised on melting pot mythology and Brown vs. Board, my instinct was to believe that separate could neither be equal nor desirable. Moreover, having spent the previous five years as part of the international effort to stitch post-war Bosnia back together, I was painfully aware of the extent to which strategies based on entrenching group difference could feed conflict as easily as they could resolve it. But I was impressed from the start by two things about Åland.

First, Åland really did do a good job governing itself. Sure, there were things to complain about, but people got on with it and government delivered. Given that Åland was both tiny compared with other administrative units in the Nordic countries and relatively rich, the archipelago seemed like a textbook case for the subsidiarity-based efficiency arguments for decentralizing power. Second, Ålanders were incredibly interested in their own autonomy. Most outsiders I talk to have a hard time believing 27,000 people manage to support two daily newspapers that between them hardly have time for stories from beyond Kobba Klintar. The identity-based arguments for autonomy clearly applied as well – in other words, Åland has autonomy because Ålanders wouldn’t settle for less.

For reasons not entirely clear to myself, I have long been drawn to questions about land and property. I wrote a masters thesis in Geography long ago on the effect of East German housing policies after unification, and went on to work in Bosnia on the restitution of homes for families that had been forced to flee during the war. As a consultant, I also focused on property issues in post-conflict countries such as Cambodia, Colombia, Cyprus, Liberia and Turkey. Some of my most recent work included an analysis of property conflicts in contemporary Libya. However, even if my early consultancy career was focused on post-conflict countries, my life was being lived in one of Europe’s flagship autonomies. When I had the good fortune to be offered a guest-researcher position at the Åland Islands Peace Institute, I quickly began to realize how important land and property issues could also be in terms of protection and conflict prevention for minorities and indigenous peoples.

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Defining communities in Colombia: the Afro-descendant communities of Curvaradó and Jiguamiandó and communal land rights

by Anouska Perram

Anouska Perram is a Supervising Associate at the London office of Simmons & Simmons LLP, an international law firm. At the request of an international NGO for whom it acts on a pro bono basis, Simmons & Simmons LLP has recently submitted an amicus curiae brief to the Colombian Constitutional Court in relation to international human rights law considerations pertaining to the Curvaradó and Jiguamiandó communities’ case.

Once seen as antipathetic to the individual rights focus of international human rights law, “third generation” and collective rights have – despite lingering controversy – been widely accepted as a fundamental element of the indivisible human rights framework.[1] Driven in particular by the demands of indigenous peoples, national and international law has recognised and protected rights to communal land titles, rights to language, religious practices, specialised education and protection of cultural heritage, and many other rights which are associated with the existence of distinct socio-cultural groups within the boundaries of the wider state.

As they have developed, collective rights have increasingly been applied to groups beyond indigenous peoples. ILO Convention 169 (the Indigenous and Tribal Peoples Convention) extends protections not only to indigenous peoples (described as peoples descended from a pre-colonial society) but also – the clue is in the name – to “tribal peoples”. Unlike the description of indigenous peoples in the Convention, tribal peoples need not be linked by common descent, but rather are characterised by “social, cultural and economic conditions” which “distinguish them from other sections of the national community”.[2]

Taking a similarly expansive approach, the Inter-American Court of Human Rights (IACtHR) has applied collective rights principles to Afro-descendant groups. The Court applies its jurisprudence on indigenous land rights equally to Afro-descendant groups where they have “an ‘all-encompassing relationship’ to their traditional lands, and [where] their concept of ownership regarding that territory is not centered on the individual, but rather on the community as whole”.[3]

The expanding scope of collective rights entails a shift in emphasis in the way these rights are justified. Indigenous rights advocacy has often focused on a claim to right derived from chronological precedence – ancestral descent since time immemorial – perhaps paralleling an orthodox property rights analysis which takes an earlier claim as a better claim. The expansion of rights to other groups such as Afro-descendants – who do not have the same claims to ancestral ownership – moves the focus towards the uniqueness of social and cultural characteristics of the group. In this way, as collective rights have developed juridically, the principle of a distinct social organisation, intrinsically worthy of and requiring protection as a collective has become central to the analysis.

This question brings to the forefront the issue of how to define membership of the “collective” entitled to “collective rights”. Logically the entitlement to protection should follow the contours of the social organisation being protected; how to determine those boundaries in each situation is, however, not necessarily straightforward. This is not actually of course a new question – it arises equally for indigenous peoples – but has perhaps been more readily glossed over in relation to indigenous peoples, in reliance upon the (mythically) objective element of “descent” to determine the boundaries of the group.[4] No such “objective” identifier applies to non-indigenous groups and so the question of how to define the group cannot be avoided.

Lawmakers will remain tempted to adopt an “objective” criterion of descent, which gives an appearance of certainty and also places finite limits on a group. Such an approach, however, has the potential to decouple collective rights from parts of the collectivity being protected. This is the very issue currently before the Colombian Constitutional Court in relation to the Afro-descendant communities of Curvaradó and Jiguamiandó.

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